Constitutional Law II
FA L L 2 0 1 9 O U T L I N E
Incorporation of Rights
3
Before the Civil War .......................................................................................................3
Post-Civil War Amendments .........................................................................................3
Due Process
4
Early S.D.P. ......................................................................................................................4
Post-Lochner ..................................................................................................................4
S.D.P. and “Fundamental” Rights .................................................................................. 5
Hybrid S.D.P. and Equal Protection ...............................................................................6
Procedural D.P. ...............................................................................................................6
Economic Liberties
7
Takings Clause ................................................................................................................7
Contracts Clause ............................................................................................................ 7
Equal Protection
7
Scrutiny ...........................................................................................................................7
Minimum Rationality Review: Economic Regulation .................................................. 8
Race Discrimination ......................................................................................................8
Sex Discrimination .......................................................................................................10
Other “Suspect” Classes ...............................................................................................11
The “Fundamental Interests” Branch of Equal Protection ........................................ 12
Civil Rights Statutes
13
Civil Rights Statutes ......................................................................................................13
The Requirement of State Action ................................................................................13
Congressional Power to Reach Private Interference with Constitutional Rights...... 14
Congressional Power to Enforce Civil Rights Under 14th and 15th ..........................15
Freedom of Speech
16
Incitement to Violence .................................................................................................16
Fighting Words/Hostile Audiences .............................................................................17
Injury to Reputation, Sensibility, Dignity, Equality ....................................................17
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Privacy Torts and Hate Speech ....................................................................................18
Sexually Explicit Expression ........................................................................................19
Speech in New Media................................................................................................... 21
Commercial Speech .....................................................................................................21
Modes of Speech Regulation
22
Content-Based versus Content-Neutral Regulations ................................................. 22
government Power to Limit Speech in Conferral of Benefits as a Regulator and Employer
(Public Forums)............................................................................................................23
Compelled Speech
27
The Right NOT to Speak ...............................................................................................27
Freedom of Expressive Association .............................................................................27
Money and Political Campaigns.................................................................................. 29
The Religion Clauses
30
Introduction .................................................................................................................30
Free Exercise of Religion ..............................................................................................30
Establishment Clause................................................................................................... 31
Reconciling the Religion Clauses ................................................................................34
Scrutiny
35
Suspect Classes Receiving Strict Scrutiny ...................................................................35
Privacy ..........................................................................................................................35
Race ...............................................................................................................................35
Sex .................................................................................................................................36
Non-Fundamental Interests ........................................................................................36
Speech and Expression ................................................................................................36
Religion .........................................................................................................................37
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Incorporation of Rights
BEFORE THE CIVIL WAR
I.
[x] Bill of Rights originally only applicable to federal government (Barron)
II.
Dred Scott essentially held that blacks could never join the American union
POST-CIVIL WAR AMENDMENTS
I.
Fourteenth Amendment
A.
II.
III.
overruled Dred Scott, granting citizenship to all persons born in the US and subject to its
jurisdiction; the case held that state citizenship and US citizenship were different
B. the Slaughter House Cases narrowed the scope of the Fourteenth (finding that a state law
did not violate individuals’ right to exercise their trade under the 14th because the 14th
applies to the rights of citizens of the “United States” and not the “several” states)
“Privileges and immunities” clause
A. got new life in Saenz v. Roe (1999) which held that citizens have the constitutional privilege
to travel, which encompasses the (1) right to enter/leave a state, (2) right to be treated as a
welcome visitor, and (3) right to be treated like other citizens of the state
“Due process” clause: incorporating the Bill of Rights
A.
Two camps:
1.
Justice Cardozo = technically the dominant view; only provisions touching on notions
of “fundamental fairness” should be incorporated
a) the Court has since started to ask whether the constitutional right is essential to
“fundamental fairness”
2.
Justice Black = incorporate the entire Bill of Rights. Now the de facto view, because the
Warren Court began selectively incorporating many rights
B.
C.
in Duncan v. Louisiana (1968), the right to a jury trial was incorporated through the DPc
in McDonald v. City of Chicago (2010), the right to bear arms was incorporated thru DPc
1.
liberal Justices argued there was nothing fundamental about the 2nd Amendment
2.
courts use intermediate scrutiny for gun possession laws
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Due Process
EARLY S.D.P.
I.
Two camps
A.
B.
II.
III.
Justice CHASE: natural law undergirds the Constitution and exists in its own right
Justice IREDELL: we must obey the will of the legislature even if we think some principle of
natural law contradicts it
First recognition of SDP in Allgeyer (1897), where the Court invalidated an LA law restricting
people from doing business with out-of-state insurance companies
Lochner (1905) and its flaws
A. widely considered to be an incorrect decision; Court perverted the idea of “liberty” by
recognizing an extreme view of “freedom” to contract
B. Court struck down a law limiting the number of hours bakers could work on the notion that
the law infringed their freedom to contract
C.
D.
Court said that police power interference in such freedoms needed to be justified by some
interest in safety, morals, or welfare of the public
before it was struck down, Lochner led to many cases striking down labor laws: Adair (1908,
striking a law that barred employers from conditioning employment on employees’ not
joining a union); Coppage (1915, same); New State Ice (1932, striking regulations on new
businesses trying to enter an industry); Adkins (1923, striking a women’s minimum wage
law); Bailey v. Alabama (1911, striking law that compelled workers to carry out contracts they
wished to breach)
1.
some laws survived: Muller v. Oregon (1908, upholding limits on women’s work hours)
POST-LOCHNER
I.
Property and contract rights are not absolute
A. Nebbia v. New York (1934), state can regulate milk prices to prevent revenue plummets and
drops in quality or harm to consumer safety and welfare
B.
II.
West Coast Hotel (1937), the switch in time that saved nine, overturned Lochner and Adkins
by upholding a women’s minimum wage law. Instead of emphasizing “freedom” to contract,
it recognized a violation of women’s liberty by depriving them of wages without DP
1.
this case shifted the narrative away from “regulation deprives workers” to “regulation
balances the employer-employee power dynamic”
Increasing deference to the legislature
A. Carolene Products (1938) seemingly extended the protection of federal regulations against
due process challenges as long as the regulations had a “rational basis”
1.
footnote 4 by STONE: there should be greater scrutiny for laws directed at “discrete and
insular minorities” (meaning hard to identify, separate, and isolated groups)
2.
strict scrutiny is triggered in two instances: (a) fundamental right infringement, (b)
suspect classification, meaning any classification of groups who are likely targets of
discrimination
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B.
Lee Optical (1955) was the height of Court deference to legislatures, saying “the law need
not be in every respect logically consistent with its aims to be constitutional”
1.
the Court even went so far as to think up some possible justifications for the law
S.D.P. AND “FUNDAMENTAL” RIGHTS
I.
II.
III.
Education
A. Meyer v. Nebraska (1923) struck down laws barring teachers from teaching German because
they infringed the teachers’ liberty
B. Pierce v. Society of Sisters (1925) struck down a law requiring children to attend public
schools because that infringed on liberty
Privacy: Procreation
A. Buck v. Bell (1927) upheld sterilization of a “feeble-minded woman”; is widely considered to
be a terrible SCOTUS decision
1.
it was reversed by Skinner (1942), when eugenics were outlawed as violating a “basic
liberty” even though there was no real grounding in the Constitution
Privacy: Contraception
A. Griswold v. Connecticut (1965) recognized a constitutionally-protected “zone/right of
privacy”, despite the fact that no such concept exists in the Constitution. Within this was
the right of marital privacy, which the Court used to strike down bans on contraceptive use
1.
IV.
this right of privacy was probably a combination of DOUGLAS’s “penumbras and
emanations” and HARLAN’s “basic values implicit in the concept of ordered liberty”
B. Eisenstadt (1972) expanded Griswold outside the marriage context by striking down laws
criminalizing the distribution of contraceptives by unmarried persons (using EP and not DP)
Privacy: Abortion
A. Roe v. Wade (1973) held that the right of privacy extended to abortions (gave strict scrutiny
to abortion, which was eventually overturned in Casey)
1.
first trimester: woman and her doctor have choice (but the state may step in if the
state’s interest in the mother’s health becomes “compelling”)
2.
after first trimester: states may regulate abortions in ways reasonably related to
promoting maternal health
3.
after viability: the state may regulate abortions after viability, which is when it gains
a “compelling” interest in the fetus’s life
4.
5.
6.
7.
8.
B.
Doe v. Bolton (1973) Georgia law making abortion less accessible was struck down
Akron I (1983) struck down law denying women’s access to outpatient abortion clinics
Danforth (1976) struck down law requiring husband consent for abortions done within
12 weeks (and requiring parental consent for teens under 18)
Thornburg (1986) struck down law requiring reporting identities of women seeking
abortions
BUT abortion funding restrictions were generally upheld in this era (Maher, McRae, Rust)
Planned Parenthood v. Casey (1992) held that states may not place an “undue burden” on
the woman’s right to an abortion; it cannot place a substantial obstacle in the path of a
woman seeking an abortion — eliminates strict scrutiny for abortion
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1.
2.
3.
C.
D.
E.
V.
requiring doctors to disclose truthful, non misleading information is not an undue
burden. Akron I and Thornburg are overruled insofar as they conflict with this ruling
24 hour waiting period to get an abortion is not undue
spousal notice requirement (effectively giving the husband a veto) is undue
Ayotte (2006) held that if certain portions of an abortion law are unconstitutional (as in, they
do not pass Casey), then only those portions need to be struck down; the rest can stay
Gonzales v. Carhart (2007) upheld a law banning “intact dilution and evacuation”
abortions, where the fetus is removed as one whole (but non-intact dilution and evacuation
is not an option for some women)
Hellerstedt (2016) struck down parts of a TX law that required abortion clinic physicians to
have very high credentials and held abortion clinics to extreme standards of service
Privacy: Marriage (mentioned by O’CONNOR in Roe)
A. Loving v. Virginia (1967) struck down state ban on interracial marriage because it violated
EP and deprived the couple of liberty without Due Process
1.
reaffirmed by Zablocki (1978), which held that marriage was part of the right to privacy
2.
Turner v. Safley (1987) extended the marriage right of privacy to prisoners
VI. Privacy: Child-Rearing (mentioned by O’CONNOR in Roe)
VII. Privacy: Family relationships (mentioned by O’CONNOR in Roe)
VIII. Privacy: Suicide
A. Glucksberg (1997) upheld a law prohibiting physicians from assisting patients’ suicide
1.
dissent wanted to preserve as-applied challenges
B.
Vacco v. Quill (1997) held that patients can refuse life-saving treatment
HYBRID S.D.P. AND EQUAL PROTECTION
I.
Sexuality
A.
B.
C.
D.
E.
Bowers v. Hardwick (1986, overruled by Lawrence v. Texas) upheld “homosexual sodomy"
laws; this is considered the Plessy v. Ferguson of LGBTQ rights
Romer v. Evans (1996) struck down a state constitutional provision that prohibited the
legislatures from passing laws conferring benefits on homosexuals
1.
introduced the concept of rational basis with a bite (slightly elevated rational basis)
Lawrence v. Texas (2003) struck down “homosexual sodomy” laws
Windsor (2013) struck down the Defense of Marriage Act as a violation of EP
Obergefell v. Hodges (2015) held that same-sex couples had the fundamental right to
marry under Due Process and Equal Protection (strict scrutiny)
1.
by using DP, the Court forced states to expand the right of marriage to same sex
couples. If they had used only EP, states could hypothetically pass constitutionality
by shrinking the right to marry
PROCEDURAL D.P.
I.
Deprivations of liberty or property
A.
Citizens must receive some sort of procedural hearing before being deprived of
entitlements (Roth), such as welfare (Goldberg v. Kelly)
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II.
Remember that PDP can only do so much: you could get the best procedural protections but
if the substantive law is crap, then you’re screwed (think of people in the criminal justice
system)
Economic Liberties
TAKINGS CLAUSE
I.
II.
Overview: Private property shall not be taken for public use, without just compensation
Eminent domain
A. Political necessity means that government can use eminent domain to take private
property, provided that just compensation is given (Kohl) and there is a valid public use
1.
2.
3.
erecting roads/schools clearly passes the public use test
government can take private property and sell/lease it to private developers who are
required to follow redevelopment plans adopted by the government (Berman v. Parker)
a) planted the seeds of a slippery slope allowing 4-star hotels to replace 3-star ones
government can use eminent domain to break up a land ownership oligopoly and resell
the land to private tenants (Midkiff)
4.
III.
the exact meaning of “public use/purpose” is broad and generally left to the discretion
of the government (Kelo)
Regulatory takings
A. in instances where the government does not per se “take” the property, but merely
regulates it heavily, just compensation is still required
CONTRACTS CLAUSE
I.
Overview: No state shall pass a law impairing the obligation of contracts
A.
B.
States cannot pass laws absolving debtors of their obligations upon surrendering property
(Crowninshield)
BUT Emergency legislation granting temporary relief from foreclosures and allowing the
court to extend such relief is constitutional as applied in the Depression era (Blaisdell)
Equal Protection
SCRUTINY
I.
Strict scrutiny
A. regulation serves a compelling governmental interest and is the least restrictive means
II.
B. applies to racial discrimination and its analogues
Intermediate scrutiny
A. regulation serves important governmental interests and is substantially related to them
III.
B. applies to sex discrimination
Rational relationship
A. regulation has legitimate ends and has a rational relationship
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B.
has multiple forms, like rational basis with a bite
C.
applies to all other classifications (including socioeconomic laws/age or disability)
MINIMUM RATIONALITY REVIEW: ECONOMIC REGULATION
I.
Early, extreme deference
A.
B.
C.
Court will go so far as to suggest possible justifications the legislature may have had when
drafting the law (Railway Express Co.)
Probably extreme, but the Court said in Fritz that it is “constitutionally irrelevant whether
this reasoning in fact underlay the legislative decision”
but rational basis will still strike down economic regulations that are driven by animus
(Moreno): “bare congressional desire to harm a politicly unpopular group cannot constitute
a legitimate governmental interest”
RACE DISCRIMINATION
I.
School segregation
A. Plessy v. Ferguson (1896) upheld “separate but equal” accommodations for blacks/whites
1.
B.
court began chipping away at Plessy:
a) Gaines v. Canada (1938) and Sipuel v. Oklahoma (1948) held that states had to
provide education that was “substantially equal” for whites and blacks
b) Sweatt v. Painter (1950) required black admission to UT law school because the
dedicated black law school in TX was far worse
c) McLaurin (1950) prohibited schools from seating whites and blacks in separate
classrooms/dining sections because of its psychological effect on black students
Brown v. Board of Education (1954) overruled Plessy and overruled “separate but equal”;
education must be provided on equal terms regardless of race
1.
extended this principle to the federal government in Bolling v. Sharpe
2.
C.
I.
II.
in Brown II (1955), the Court ordered desegregation with “all deliberate speed”
a) in Watson v. Memphis (1962), the Court said that all deliberate speed was too slow,
and that now there should be “whole speed”
b) in Green v. Cty. Sch. Bd. (1968), the Court required steps that promised to
realistically comply with desegregation
Rehnquist Court deals blows to Brown:
1.
Missouri v. Jenkins held that federal courts could not force states to violate their tax
laws in order to fund desegregation
2.
Dowell held that federal court injunctions mandating desegregation were not
permanent and could be invalidated after the district demonstrated compliance
Other vestiges of segregation
A. McLaughlin (1964) struck down a law banning interracial cohabitation by unmarried couples
B. Loving (1967) struck down anti-miscegenation laws
C. Palmore (1984) made it illegal to give custody rights to same-race couples over interracial
ones based on race
Facial discrimination against racial minorities
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A.
B.
C.
D.
Korematsu (1944) amazing rare case of a racially discriminatory law surviving strict scrutiny
1.
overruled in Trump v. Hawaii (2018)
Facially neutral laws can be struck down as racially discriminatory when they (a) have
racially discriminatory applications (Yick Wo), (b) have an underlying purpose that is
racially discriminatory (Gormillion) 1, or (c) have racially discriminatory effects (see below)
Racially discriminatory effects
1.
Washington v. Davis upheld a police recruiting test that failed blacks way more often
and advantaged whites: based on the totality of relevant facts, there was no purposeful
discrimination against blacks, the test is facially neutral, and the government has the
right to demand a minimus standard for its police
2.
Arlington Heights held that challengers to facially neutral laws who allege a racially
discriminatory effect can prevail if they show that a discriminatory purpose was a
“motivating factor” using the following considerations: (a) impact of the law, (b)
history behind the law’s passing/drafting, and (c) lead-up to the decision and any
departures from normal procedure
a) if the challengers show this, the burden shifts to the defendants to show that the
outcome would have been the same without the racially discriminatory purpose
3.
post-Arlington, challengers succeeded in Rogers v. Lodge (finding racially
discriminatory vote dilution via an at-large voting system that prevented blacks from
electing their choices) and Hunter v. Underwood (striking down an AL constitutional
provision disenfranchising all persons convicted of crimes involving “moral turpitude”
because it was racially motivated against blacks)
Disparate impact claims = claim that a practice/law disproportionately and adversely
affects one protected group more than another
1.
2.
III.
Employment and contracting
A. government cannot use race to institute a racial preference for employment termination
decisions (Wygant)
B.
IV.
disparate impact plaintiffs relying on statistical disparities must be able to point to a
defendant’s policies causing the disparity (Texas Dept. of Housing)
the government cannot put a “racial thumb on the scales,” even if it does so to try and
increase diversity and avoid disparate impact liability (Ricci)
Fullilove upheld a congressional spending program's requirement of minimum contracting
to minority-controlled businesses (overruled by Adarand) — big debate with dissent over
applying strict scrutiny equally to policies that are actually racist and raciallyconscious remedial policies (dissent wants to bifurcate the two)
1.
Richmond v. J.A. Croson walked this back, striking down a similar state program but
distinguishing it by saying that the states could not be as trusted on such matters
2.
Adarand overruled the federal-state distinction and held that strict scrutiny applied to
federal and state contracting; this was a big loss for remedial racial policies
a) essentially condemns any attempted remedial racial policies because of strict in
theory, but fatal in fact (from 1990-2003, 30% of laws subjected to strict scrutiny
Affirmative action
facially neutral laws with nothing more than a racially disproportionate effect will usually be upheld.
Washington v. Davis
1 BUT
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A.
racial/ethnic distinctions of any sort are inherently suspect and get strict scrutiny (Bakke)
(dissent wanted to use intermediate scrutiny for alleged racial discrimination against nonsuspect classes like white men); and racial quotas in admissions are unconstitutional
1.
but promoting diversity is a permissible and compelling goal, so the government may
use race as a plus factor in admissions decisions; but it cannot be the sole factor
2.
Grutter v. Bollinger (Michigan law) supposedly used a proper plus factor system, which
was upheld because it was narrowly tailored and didn’t unduly burden members of the
favored groups
3.
V.
VI.
Gratz v. Bollinger (Michigan undergrad) featured an improper admissions system
because it automatically assigned points to applicants based on their race (probably
the right decision because points feel rigid and formulaic — but to be honest, this is
probably what Michigan was doing in Grutter, considering they’re the same school)
4. Fisher v. University of Texas Austin upheld the “10% plan,” which admitted the top 10%
of graduating high school classes from each TX high school because it was properly
tailored to the interest of “obtaining the educational benefits that flow from student
body diversity” rather than merely enrolling more minority students
School diversity in K-12
A. allocating spots based on race in K-12 schools is unconstitutional because it impermissibly
uses race as the sole deciding factor (Parents Involved)
Racial preferences in electoral districting
A. Easley held that plaintiffs alleging improper use of race in districting must show that race
was the predominant factor motivating the legislature
SEX DISCRIMINATION
I.
Early cases upheld gross discrimination based on sex
II.
SCOTUS does not consider sex a suspect class (Reed) but this actually means laws intending to
remedy past sexual discrimination are more likely to survive (so lesser scrutiny does more for
victims of sex discrimination than greater scrutiny does for victims of race discrimination)
Sex discrimination gets intermediate scrutiny (Craig v. Boren)
III.
A.
Any law with the objective of “protecting” members of one gender because they are
presumed to suffer from a handicap is automatically invalid (Hogan)
B.
Gender-based classifications require an “exceedingly persuasive justification” standard
(Hogan) — used to strike down gender-based peremptory challenges (J.E.B.)
Laws that deny women, solely on the basis of sex, equal opportunity to be full citizens (to
thrive/aspire/achieve) are unconstitutional (United States v. Virginia)
C.
IV.
Pregnancy
A. Geduldig held that a state could exclude “pregnancy-related disabilities” from its disability
insurance legislation
V.
Statutory rape
A. Michael M. v. Superior Court sustained a law that punished the male, but not the female
participant, in sexual intercourse when the female was under 18
The draft
VI.
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A.
Rostker upheld the draft, saying it did not violate Equal Protection by requiring males to sign
up but not requiring females to do the same
VII. Families and citizenship
A. Caban made it illegal to give the mother, but not the father, of an illegitimate child the right
to block adoption by withholding consent
1.
BUT in Nguyen v. INS the Court upheld a law treating illegitimate children born to a
citizen and noncitizen differently depending on which parent was a citizen
B. Sessions v. Morales-Santana struck down a law that let mothers transfer citizenship to their
child after a year of living in the US, but required fathers to live in the US for 10 years in order
to have the same ability
VIII. Sex-based purpose and effect
A.
IX.
Feeney upheld a law granting preferences to veterans for state civil service positions even
though it vastly benefited males
1.
it also established the test for gender-neutral statutes being challenged on the basis
of disproportionate effects:
a) whether the classification is indeed neutral in the sense that it is not gender
based. If it is not gender based, then . . .
b) whether the adverse effect reflects invidious gender-based discrimination (with
impact being an important starting point of analysis)
Sex-based affirmative action
A. Kahn upheld state property tax exemptions for women even though men were denied them
B.
C.
Orr upheld a law imposing alimony obligations on husbands but not wives
Wiesenfeld and Goldfarb struck down a social security provisions that benefited widows and
minor children but not men in the case of spousal death
1.
BUT Webster upheld a social security provision benefiting women over men because it
was geared toward redressing society’s longstanding disparate treatment of women;
this was like a remedial law for sex discrimination
X.
Military Promotions
A.
Schlesinger sustained sex distinctions in the navy’s promotion system that benefited
women
OTHER “SUSPECT” CLASSES
I.
Alienage
A. alienage classifications for legally resident aliens receive strict scrutiny (Graham, Griffiths)
1.
e.g. welfare receipt, bar admission, civil service jobs
B.
II.
but alienage classifications for legally resident aliens concerning governmental functions
(aka “public policy functions that go to the heart of representative government”) receive
more judicial deference (Connelie, Ambach, Bernal) — federal government also gets more
deference than state government; Congress has great deference in the area of public
employment for aliens (Mow Sung Wong) and medical benefits to aliens (Diaz)
1.
e.g. policing, public school teachers, notaries public
Disability
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A.
rational basis with bite, because disabilities vary greatly and the legislature needs deference
in order to deal with it effectively (Cleburne)
III.
Age
A. rational basis with bite (Murgia)
IV.
Poverty
A. rational basis with bite; wealth classifications alone do not trigger strict scrutiny (Valtierra)
THE “FUNDAMENTAL INTERESTS” BRANCH OF EQUAL PROTECTION
I.
Voting
A.
B.
C.
D.
E.
F.
G.
H.
I.
II.
there is no constitutional right to vote, but Constitutional amendments have limited the
states’ powers to set all necessary qualifications for voting
unclear what the standard is, but the Court has said that infringements of voting rights must
be “meticulously scrutinized”
Poll taxes are unconstitutional as a prerequisite for voting (Va. State Bd. of Elections)
BUT states can strip felons of their voting rights even after they have serve their sentences
(Richardson v. Ramirez)
BUT states can require government-issued IDs to be presented by all voters (Marion County)
BUT Bush v. Gore held that a recount was invalid because it only recounted undervotes and
did not establish uniform procedures for counting all voters
vote dilution: Baker v. Carr said that EP challenges to legislative apportionment were
justiciable
1.
Reynolds v. Sims established “one person, one vote”; states must make good faith
efforts to construct districts of equal population; vole dilution based on residence is
unconstitutional
political gerrymanders
1.
Davis v. Bandemer declared gerrymandering to be justiciable; unconstitutional
discrimination occurs when voters’ influence is consistently degraded, supported by
evidence of continued frustration of the will of the majority or denial to minority voters
of a fair chance to influence the political process
2.
Vieth kept gerrymandering a justiciable issue, with Kennedy’s swing vote saying that
there could be some criteria for finding constitutional violations in gerrymandering.
Kennedy: “maybe I’ll do it someday, just not today” *retires*
3.
BUT in Rucho, after Kennedy’s departure, the Court declared political gerrymandering to
be non-justiciable
but then in Gill v. Whitford, the Court decided that they were, after all, not justiciable
Access to the courts
A. Griffin v. Illinois required states to provide trial transcripts to criminal defendants
1.
Douglas v. California extended Griffin to require states to provide indigent criminal
defendants with counsel for their first appeal (but not in discretionary appeals, Moffit)
B.
divorce
1.
Boddie used DP to hold that required financial fees for divorce filings were
unconstitutional for indigent individuals
C.
welfare and bankruptcy
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1.
III.
Boddie was not extended to voluntary bankruptcy filings or judicial reviews of denials
of welfare benefits
D. paternity
1.
Streater extended Boddie to indigent defendants in paternity actions (and also to
paternity appeals, S.L.J.)
Limits on the fundamental interests branch
A. welfare benefits receive rational basis review and do not get fundamental interest
protection (Dandridge)
B.
C.
housing receives rational basis review and does not get fundamental interest protection
(Lindsey v. Normet)
education gets rational basis and no fundamental interest protection (San Antonio
Independent Sch. Dist.) because it is not the Courts’ job to afford citizens the most effective
education or most informed speech
1.
BUT Plyer v. Doe used intermediate scrutiny to strike down the exclusion of illegal
immigrant children altogether from TX public schools
Civil Rights Statutes
CIVIL RIGHTS STATUTES
I.
II.
13th Amendment — 1865, gave constitutional support to Emancipation Proclamation
1866 Act — gave citizenship and all of its related rights to black Americans
III.
IV.
V.
14th Amendment — 1868, solidified the 1866 Act
15th Amendment — 1870, guaranteed suffrage to all races
1870 Act — dealt with state efforts to disenfranchise; added criminal penalties for private acts
meant to violate voting rights
1871 Act — added civil and criminal liabilities for deprivations of constitutional and federal rights
(42 U.S.C. § 1983). Also added liability for private conspiracies to this effect
VI.
VII. Civil Rights Act of 1957 and 1960 — primarily focused on voting rights
VIII. Civil Rights Act of 1964 — went well beyond voting
IX. Voting Rights Act of 1965
THE REQUIREMENT OF STATE ACTION
I.
State action
A. Congress can regulate state behavior that violates individual rights, but Congress cannot
regulate private conduct under the Fourteenth Amendment if that conduct has no relation
to state action (Civil Rights Cases)
1.
this decision struck down the 1875 Act, which provided that all races must get “full and
equal enjoyment” of public accommodations, advantages, facilities, conveyances, etc.
2.
3.
Court said that the 13th only gave Congress the power to regulate in relation to banning
slavery or servitude
Court said that the 14th only gave Congress the power to regulate discrimination in
which the state was the actor
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II.
Public function
A.
entities that must abide by constitutional rights and protections:
1.
privately-owned “company towns” that have all the characteristics of an ordinary
municipality (Marsh v. Alabama)
2.
3.
4.
5.
B.
privately-owned parks (Evans v. Newton)
neighborhood racially restrictive covenants (Shelley v. Kraemer)
restaurants within public parking buildings (Burton v. Wilmington Parking Authority)
primaries if they are part of the election machinery (Smith v. Allright)
6. any election that selects public officials (Terry v. Adams)
entities that do not need to abide by constitutional rights and protections:
1.
shopping centers (no state action, Hudgens)
2.
3.
4.
public utility service provider (very curious…, Jackson v. Metropolitan Edison Co.)
a) the mere fact that a business is subject to state regulation does not convert the
business’s actions into state action. There must be a sufficiently close nexus
between the challenged action and the state so that the action may be fairly
treated as that of the state itself
state subsidies (Yaretsky)
private schools getting public funding (Rendell-Baker)
5.
state inaction (Deshaney v. Winnebago County Social Services Dept.)
CONGRESSIONAL POWER TO REACH PRIVATE INTERFERENCE WITH
CONSTITUTIONAL RIGHTS
I.
Regulating private conspiracies
A.
II.
III.
private actors conspiring to kill a black man with assistance from false reports by law
enforcement and “general state connivance” is regulable — seems to weaken the Civil
Rights Cases (Guest and Price)
Congressional power to reach private conduct under the 14th Amendment
A. Breckenridge held that 42 U.S.C. 1985(3)—a civil remedy—was applicable to some purely
private conspiracies to deprive persons of civil rights
1.
Bray v. Alexandria Women’s Health held that holding animus toward abortion was not
the same as animus toward women, and so the animus required by 1985(3) was not
present
2.
Monroe v. Pape allows for civil remedies under § 1983 for actions “under color” of law;
police officers unlawfully entering a home qualifies as being under color of law
B. Under 14th, Congress can protect the following against private interference:
1.
right to vote in federal elections
2.
right of interstate travel
Congressional power to reach private conduct under the 13th Amendment
A. Jones v. Alfred Mayer held that Congress had the power, through 42 U.S.C. 1982 and the
13th Amendment, to prohibit all racial discrimination as long as it could rationally
conclude that disrimation to be a “badge of slavery”, even private discrimination (context:
real estate with a private seller unwilling to sell to blacks)
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B.
C.
Little Hunting Park barred neighborhood committees from preventing residents from leasing
to black tenants
McCrary barred private schools from denying admission solely based on race
CONGRESSIONAL POWER TO ENFORCE CIVIL RIGHTS UNDER 14TH AND 15TH
I.
Congressional protection of voting rights
A. Congress can proactively protect voting rights via the VRA by restricting the use of literacy
tests as a precondition for voting (South Carolina v. Katzenbach)
1.
Oregon v. Mitchell upheld a VRA provision barring age discrimination above 18 years
II.
Limiting Congressional “enforcement” powers to remedial legislation 2
A. in response to RFRA, City of Boerne held that Congress can only enforce the 14th, not
reinterpret its substance to decide what constitutes a constitutional violation. This
enforcement must be remedial
1.
in order to be remedial, congressional action must be congruent (related to) and
proportional (not over- or under- inclusive) to the ends to be achieved
2.
3.
RFRA was too expansive to be proportional and was too high a burden for the
government because it affected every single law and every single branch and level of
government; RFRA as applied to the states is unconstitutional
after Boerne, the Court usually only allows Congress to pass statutes holding states
accountable for actions if those statutes remedy state constitutional violations under
the Boerne standards
a) BUT in United States v. Morrison, even an extensive Congressional record of state
misconduct was not enough to pass the Violence Against Women Act because
there was “no relation to the state”
b) AND Kimel prevented Congress from allowing employees to sue states for violating
the Age Discrimination in Employment Act because it failed congruence and
proportionality (the Act essentially overrode rational basis review and applied
intermediate scrutiny)
c) AND Board of Trustees for the University of Alabama prevented Congress from
making states vulnerable to employer violations of ADA Title I because there wa no
history of unconstitutional employment discrimination and discrimination got
rational basis review
4.
B.
Shelby County v. Holder struck down §4(b) of the VRA, which determined which districts
had to pass pre-clearance if they wanted to reform their electoral systems due to those
districts’ history of racial discrimination. This was because §4(b) had supposedly done
its job and the problem was now solved
successful congressional enforcement
1.
United States v. Georgia: paraplegic inmate could sue under ADA for a state prison’s
failure to accommodate his disability
Congress can only enforce the 14th Amendment if: the statute is remedial (meaning it addresses a situation where
there is a history of unconstitutional state behavior) and is not over- or under-inclusive. City of Boerne, Morrison.
The Court generally only lets Congress remedy state discrimination against classes that get intermediate scrutiny.
Hibbs
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2.
Hibbs: either parent may leave work to care for a sick family member; there was ample
evidence of states containing to discriminate against women in the employment-leave
context
Freedom of Speech
I.
Free speech is a fundamental right (Palko)
INCITEMENT TO VIOLENCE
I.
Clear and present danger test
A. Schenck prohibited individuals from causing insubordination among military servicemen
1.
Congress can outlaw speech if the words are used in such circumstances and such a
nature so as to create clear and present danger that they will bring about
substantive evils (fire in a crowded theater example).
a) Appear to be three elements:
i.
ii.
b)
B.
II.
immediacy (but Gitlow said that the speech need not advocate “definite nor
immediate” unlawful acts in order to be proscribable)
(A) Dennis essentially rendered “immediacy” meaningless by holding that
simply being in an organization that advocated overthrow could be
punishable, even if there was almost no evidence that an attempted
overthrow was imminent
tendency to produce certain results
iii. intent
Scheck test bars language “advocating, advising, or teaching” the illegal
overthrow of government (Gitlow)
2.
Congress’s regulatory power clearly gets extra oomph during wartime (Abrams)
Whitney (later overruled) restricted speech even further, holding that states could punish
individuals for associating with organizations that advocated unlawful conduct
Brandenburg “Incitement” test evolves “clear and present danger"
A. Brandenburg: states can no longer proscribe the mere advocacy of using force/breaking
the law UNLESS it (a) is intended to incite imminent lawless action and (b) is likely to
produce or incite such action
1.
2.
modifies the Schenck clear and present danger test
Hess: shouting “we'll take the streets later” during a campus protest was not imminent
incitement to violence
3.
Claiborne Hardware: saying that boycott violators would be “disciplined” was not
imminent incitement to violence
BUT Paladin Enterprises held that the publishers of a “hitman’s manual” with intensely
detailed guides and “no legitimate purpose beyond teaching murder” could be sued
AND American Coalition of Life Activists (9th Cir.) held that putting pictures of abortion
physicians online as “wanted” posters and crossing them out if they had been injured
or killed was a true threat (not exactly incitement) and thus proscribable
4.
5.
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FIGHTING WORDS/HOSTILE AUDIENCES
I.
Fighting words (one-on-one setting)
A.
Chaplinksy: government can ban fighting words, which are words “by which their very
utterance inflict injury OR tend to incite an immediate breach of the peace”
1.
this still stands, but SCOTUS has not upheld a fighting words conviction since
a)
b)
c)
II.
Gooding struck down a GA statute much like the one used to convict Chaplinksy
Rosenfeld held that calling teachers “motherfuckers” was not FW
Texas v. Johnson said that flag burning was no FW because no reasonable person
would perceive the act as a direct personal insult or invitation to fight
Hostile audiences (crowd setting)
A. key differences from FW:
1.
HA cases need not involve speech directed at the listener
B.
2.
FW are offensive because of their form; HA are offensive due to form or the message
3.
HA is addressed through balancing, rather than categorization
Government cannot proscribe public speech if it is peaceful and nonviolent (Cantwell).
But the government can proscribe public speech if . . .
1.
it produces a clear and present danger of a serious substantive evil (Terminiello —
though this speech generated some violence and intense protests)
2.
it “passes the bounds of argument or persuasion” (Feiner)
3.
there is an “intolerable invasion” of the substantial privacy interests of unwilling
listeners, like a captive audience (Cohen — government cannot ban expletives without
a compelling reason)
a)
C.
Cohen seems to undermine the idea that government can ban some words simply
because they—by their very utterance—inflict injury
distinguishing Feiner in later cases
1.
2.
without evidence of violence, large demonstrations are legal even if they generate large
crowds (Edwards v. South Carolina, Cox)
government cannot use standardless discretion (no legitimate explanation or reason)
to preventatively proscribe future speech without considering its context or
circumstances (Kunz)
INJURY TO REPUTATION, SENSIBILITY, DIGNITY, EQUALITY
I.
Libel3 = tortious assertion as facts of defamatory statements about an individual
A.
B.
the Court has, over time, become less willing to punish people for libel
Beauharnais (technically still good law, but largely undermined by later cases of
Brandenburg and Kunz) allows states to ban publications portraying a class of citizens to be
depraved, criminal, or virtueless, if that publication exposes the class to contempt or
derision or contributes to a breach of the peace
Libel is by definition false.
Defamation is not necessarily false.
Slander is the spoken form of libel, and is by definition false
3
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II.
First Amendment limits on libel4
A.
B.
III.
New York Times v. Sullivan: grievances and protests concerning public issues receive First
Amendment protections. Constitutional protection of speech does not turn on truth,
popularly of belief, or social utility. Erroneous statements are inevitable in our society and
must be protected to prevent chilling
1.
NYT standard: Untrue statements are not liable for libel, unless there was actual
malice, meaning that the speaker (a) knew it was false or (b) had a reckless disregard
for the truth — (a) or (b) must be shown with “convincing clarity”
2.
extended to state criminal libel cases by Garrison v. Louisiana
more victories for libel defendants
1.
Hepps put the burden of establishing falsity on the plaintiffs by a “clear and
convincing” evidence standard
2.
Anderson v. Liberty Lobby required “clear and convincing” evidence at the summary
judgment stage
3.
Bose Corp gave appellate courts de novo review over finding actual malice
The scope of New York Times
A. SCOTUS has considered three variables in deciding how far to extend NYT:
1.
plaintiff’s identity — public official, public figure, or private figure?
a)
public officials and public figures are the same (Curtis Publishing); e.g., lawyer
who is active in community and professional affairs (Gertz), wealthy divorcee
whose divorce was covered in Time magazine (Firestone), a scientist whose
federally funded monkey research was criticized by a Senator (Proxmire),
someone who was thrust into the public eye on suspicions of being a Soviet spy
(Wolston)
b)
2.
3.
private figures can recover, unless the challenged publication concerns an event
of public or general interest (Metromedia)
defendant’s identity — media or non-media?
nature of the issue discussed — public or private matter?
PRIVACY TORTS AND HATE SPEECH
I.
Privacy Torts
A. states have passed laws on four main types of privacy invasion:
1.
2.
public disclosure of non-newsworthy facts the P preferred to keep secret
a) Cox Broadcasting v. Cohn and Florida Star both upheld media outlets’ decisions to
publish the names of sexual assault victims that were available in court and police
records, respectively. However, the Court said that not all truthful publication
would always be permissible in all circumstances
false light
a) assert that there was an invasion of privacy that was false, though not necessarily
injurious to reputation
b) Time, Inc. v. Hill applied the NYT standard to false light cases
Note that, outside of the libel context, false statements receive some constitutional protection. Alvarez. Satire walks
a fine line (compare John Oliver to Alex Jones, both of whom claim to be joking and thus protected)
4
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3.
appropriation of P’s name or likeness
a)
4.
B.
C.
Ps have proprietary interests that should be protected if others try to use it for
their own gain (Zacchini)
intrusion into P’s private affairs
a) not yet addressed by SCOTUS
You can legally publish things that are illegally obtained (if the thing sufficiently concerns
matters of public importance) (Bartnicki — secretly taped phone call was put on radio)
1.
if Jack is willing to risk the penalty of illegally obtaining information, Jane is free to
publish it if Jane obtains it legally
Intentional infliction of emotional distress
1.
Falwell: Public figures and public officials can only recover for IIED caused by
publications if they show the statement was (a) false and (b) made with actual malice
2.
Snyder: Private individuals cannot recover for IIED if the speech addresses a public
concern. Speech addresses a public concern when it—judged by its content, form,
and context—can
a) “fairly be considered as relating to any matter of political, social, or other
concern to the community, or
b)
II.
when it is a subject of legitimate news interest (meaning it is of general interest
and of value and concern to the public)”
Hate speech (analyzed independent of the speech’s ability to incite violence)
A. R.A.V.: government cannot restrict speech OR expressive conduct on the basis of viewpoint/
ideas expressed alone; but the government can regulate speech on an equal basis
1.
a city ordinance banning only abusive language directed at particular groups is
unconstitutional because it is viewpoint discrimination (abusive language used to
advocated for a group would be okay)
2.
even unprotected speech may not be regulated on the basis of viewpoint alone
3.
Wisconsin v. Mitchell: SCOTUS did not extend this principle to conduct
a)
B.
BUT a state can regulate the conduct of cross-burning with intent to intimidate if it
does so in a way that is viewpoint neutral (Virginia v. Black). However, a provision
saying that the act of cross-burning is prima facie evidence of intimidation is
unconstitutional because it does not distinguish between political cross-burnings
and intimidating cross-burnings
True threats (statements where the speaker means to communicate a serious expression
of intent to commit an unlawful act of violence to an individual/group; the speaker need
not actually intend to carry out the threat) are regulable
SEXUALLY EXPLICIT EXPRESSION
I.
Obscenity is unprotected
A.
B.
original test: Roth, whether the average person, applying contemporary community
standards, considers the dominant theme of the material taken as a whole to appeal to
prurient interest
Stanley v. Georgia held that government cannot criminalize the private possession of
obscene materials (but does not apply to child pornography, Osborne)
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C.
II.
Miller (sending adult material brochures through the mail) clarified the Court’s stance on
obscenity: government can ban obscenity if the work describes or depicts sexual conduct
and balances with this three part test:
1.
whether the average person, applying contemporary community standards, would
find the work as a whole to appeal to prurient interest,
2.
whether the work depicts or describes, in a patently offensive way, sexual conduct
that is specifically defined by the applicable state law (ex: [i] patently offensive
representations or descriptions of ultimate sex acts, normal or perverted, actual or
simulated; or [ii] patently offensive representations or depictions of masturbation,
excretory functions, and lewd exhibition of the genitals), and
3.
whether the work, taken as a whole, lacks serious literary, artistic, political, or
scientific value (measured by the reasonable person standard, Pope; not measured by
local standards, Smith v. United States)
D. Paris Adult Theater (showing of allegedly obscene movies at an adult theater) allowed states
to regulate the showing of obscene material at places of public accommodation
1.
recognized the state’s “legitimate interest” in stemming the flow of commercialized
obscenity so as to promote public quality of life
Sexually explicit but non-obscene
A.
B.
generally, the Court has treated sexually explicit but non-obscene speech as protected and
given it strict scrutiny protection
Nudity bans
1.
2.
C.
the Court has consistently invalidated total bans on nudity
Erznoznik (ordinance banned drive in theaters with screens visible from the street from
showing nude films) held that government could not ban nudity simply because it
offended some people; the ordinance was overboard because not all nudity would be
offensive
Zoning commercial sexual expression
1.
while the Court grants strict scrutiny to bans on nudity, it has been more than willing to
let government regulate where sexual commercial expression can occur
2.
American Mini Theaters (required adult theaters to be a set minimum distance away
from other types of structures) allowed distance regulations on commercial sexual
expression because it was not content-based; as long as the city’s view on the content
has no bearing on where the films may be shown, it’s okay
3.
Renton (concentrating adult theaters instead of dispersing them) held that contentneutral time, place, and manner restrictions are acceptable so long as they are
designed to serve a substantial governmental interest and do not unreasonably limit
alternative avenues of communication
a) city does not need to conduct extensive research into whether an ordinance
would further substantial interests. The city can rely on findings of other cities
that are “reasonably believed” to be relevant to itself
b) more than 5% of Renton’s land area is still available, which meets the alternative
avenue requirement
4. Alameda Books (initial density limits similar to Mini Theaters, then later changed its
ordinance to break apart concentrated “adult buildings”) granted significant deference
to a city given that it reversed course from its original plan, but this was still okay
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III.
Child pornography = sexual conduct involving persons younger than 16
A.
B.
C.
Ferber (convicted of selling films of boys masturbating) held that states can prohibit
individuals from knowingly producing or promoting child pornography
1.
states have a compelling interest in protecting the physical and psychological wellbeing of minors; there is a clear connection between child pornography production and
the abuse of minors; eliminating the market for these products can help stop their
production; child pornography in no way has any literary, artistic, political, or scientific
value; precedent justifies classify child pornography as being outside the protection of
the First Amendment
Osborne: Stanley v. Georgia’s protection of private obscene material possession does not
extend to child pornography
Ashcroft v. Free Speech Coalition held that the harm of child pornography was not the
resulting effects of people consuming the media, but rather the direct harm to children in
producing the media. Therefore, if there is no direct harm to children in the production of
the media, it cannot be banned
1.
“government may not prohibit speech on the ground that it may encourage pedophiles
to engage in illegal conduct”
SPEECH IN NEW MEDIA
I.
Indecent and sexual speech in new media
A. Pacifica: government can regulate (persistent) obscene, profane, or indecent broadcasting
in radio because of (a) its pervasive place in society and (b) ease of access for children due
to captive audience concerns
1.
Fox Television Stations said the FCC did not violate the APA in extending regulation to
“fleeting expletives” but did not address the constitutional question
B.
II.
Con. Edision and Bolger: mail can be easily discarded, so it does not create any captive
audience concerns
Violent speech in new media
A. United States v. Stevens: government cannot regulate the creation/sale/possession of
videos showing animal cruelty; Court expressly rejected the government’s proposed
balancing test to allow speech regulation when the “societal costs outweigh the value of the
speech”
B.
Entertainment Merchants Ass’n: government cannot regulate the sale of violent video games
to minors (the statute used the label of obscenity as pretext for banning things that are only
offensive)
COMMERCIAL SPEECH
I.
Commercial speech = speech that merely proposes a transaction
A. commercial speech is still protected, but is a “lower” form of speech with fewer protections
than core speech; it can be regulated in some circumstances (Virginia Pharmacy Board)
II.
Commercial speech after Virginia Pharmacy Board
A. Linmark: government cannot ban “for sale” signs
B. Carey: government cannot ban contraceptive ads
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C.
Government cannot ban lawyer advertising for routine services (Bates) or mailing individuals
to inquire about providing legal services (In re Primus, Shapero)
1.
but these are not okay: ambulance chasing likely to produce adverse effects (Ohralik),
direct-mail solicitation to a victim’s relatives within 30 days of an accident (Went For It)
D.
Central Hudson: Commercial speech gets intermediate scrutiny: a four part inquiry . . .
a) speech concerns lawful activity and is not misleading
b) there is a substantial government interest
c) the speech restriction advances the government interest
2.
3.
d) the speech restriction is not more extensive than necessary
in Central Hudson, the restriction passed 1-3 but failed 4 because the governmental
interest was to reduce energy consumption, but the restriction was overboard by
banning ads that encouraged reduced energy consumption
44 Liquormart: government cannot ban alcohol price advertisements outside of liquor
stores because it failed part 3 of Central Hudson; there was not enough evidence to
show that the ban would further the interest of reducing alcohol consumption
Modes of Speech Regulation
CONTENT-BASED VERSUS CONTENT-NEUTRAL REGULATIONS
I.
Content-based regulation
A. Reed: Content based laws are presumptively unconstitutional and subject to strict scrutiny
a)
Government regulation of speech is content-based if it applies to a particular
speech because of the topic discussed or the idea expressed
b)
1.
B.
C.
Regulation targeted at a specific subject matter is content-based even if it does
not discriminate among viewpoints within that subject
Reed sign regulation was unconstitutional because it treated signs differently based on
their communicative content; did not further compelling governmental interests
Mosley: government cannot ban almost all picketing but exempt a specific type of picketing
Simon & Schuster: law seriously restricting convicts from benefiting from their own book
sales was overinclusive because it also applied to rehabilitated ex-cons
D.
II.
Burson: government can ban all political solicitations within a certain distance from polling
places
E. Republican Party of Minnesota: government cannot prevent candidates for judicial elections
from announcing their political views
Content-neutral regulation and symbolic conduct
A. laws restricting symbolic conduct because of its symbolism and communicative impact
are content-based and subject to strict scrutiny
B.
5
O’Brien (draft card burning): but laws that are allegedly content-neutral5 but impact
symbolic content it must pass intermediate scrutiny — they must further an important/
substantial government interest and can only involve an “incidental” restriction on speech
that is no greater than essential to the furtherance of that interest
Government regulations are content neutral if they “are unrelated to the suppression of free speech”
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1.
C.
III.
conduct is expressive if (a) an intent to convey a particularized message is present,
and (b) in the surrounding circumstances there is a great likelihood that the message
would be understood by those viewing it (Spence); conduct is not automatically
“speech” simply because the actor intends to express an idea
Texas v. Johnson: established the predominant test for regulating expressive conduct:
1.
Was the conduct free expression?
a) yes → then ask whether the regulation was related to the suppression of free
expression?
i.
if no, apply O’Brien
ii. if yes, apply strict scrutiny
b) no → end test
D. Holder (federal law prohibits “material support” to FTOs): laws that are generally directed at
conduct, but triggered by the communication of a message, shall receive “more rigorous
scrutiny”
Nude dancing
A.
Barnes (nude dancing ban in adult establishments): nude dancing bans are content neutral
and are subject to the O’Brien test; nude dancing is not expressive under Spence;
protecting public health, safety, and morals is content neutral under O’Brien (but this was
walked back in City of Erie)
GOVERNMENT POWER TO LIMIT SPEECH IN CONFERRAL OF BENEFITS AS A
REGULATOR AND EMPLOYER (PUBLIC FORUMS)
I.
Public forums
A. Court recognized in Hague a general right to speak in “public forums,” but did not fully
define “public forum”
B. Lovell, Saia: Standardless licensing in regulating access to public forums is unconstitutional
C. Government may not totally ban mediums, even if done on an equal basis; it invalidated bans
on leaflets (Schneider), handbills (City of Struthers), posting most kinds of signs (Gilleo), and
a government requirement that permits be acquired in order to go door-to-door (Stratton)
1.
but regulation of “loud and raucous” speakers are okay (Kovacs)
D. Time, place, manner test
1.
Taxpayers for Vincent (city ban on posting signs on public property): First Amendment
does not guarantee access to government property simply because it is owned or
controlled by the government
a)
2.
also held that reducing is a valid governmental interest under the O’Brien test that
can justify incidental restrictions on speech
Clark (ordinance prevented demonstrators from sleeping in tents as part of
demonstration): Time, place, and manner restrictions are valid as long as they are (a)
justified on content neutral grounds, (b) narrowly tailored to serve a significant
governmental interest [but not necessarily LRM, Ward], and (c) leave open ample
alternative channels for communication
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a)
3.
regulating the act of sleeping as part of the demonstration regulates the manner of
the demonstration and is therefore okay; preserving parks is significant; alt.
means exist
Protecting captive audiences: remember—Cohen, Con. Edison, and Bolger said that
viewers could just avert their eyes, but Pacifica cabined this for radio broadcasts with
expletives
a) Frisby: targeted picketing, if intense enough, can be regulated
b) Madsen (restrictions on protesting outside abortion clinics): as a general matter,
content-neutral restrictions on protesting outside an abortion clinic are
acceptable if they have narrowly-tailored buffer zone; protecting the emotional
and psychological well-being of patients is a significant interest
i.
government can prevent people from “knowingly approaching” within 8 feet
of someone without their consent to deliver an antiabortion leaflet (Hill,
2000)
ii.
BUT “floating no-protest zones” are generally unconstitutional because they
unnecessarily burden speech (Schenck, 1997 — seems to conflict with Hill)
(A) and a 35-foot no-protest buffer zone, while content neutral,
unnecessarily burdens speech (Coakely)
iii.
II.
* big debate between the majorities and dissents about whether these
injunctions and statutes are actually content-neutral because they seem to
specifically target anti-abortion activists
Speaker access to places that are not traditional public forums
A. Classes of forum:
1.
public forum = streets, parks, theaters (Conrad), social media (Packingham — even
registered sex offenders cannot be banned from social media sites)
a) content-based exclusions must pass strict scrutiny
b) the government creates a public forum only by intentionally (clear evidence)
opening it up to public discourse (Cornelius, O’CONNOR concurrence)
2.
designated public forum = locations the government opens up for expressive activity;
parts of Trump’s twitter account (Knight First Amendment Institute)
a) content-based exclusions must pass strict scrutiny
b)
3.
content-neutral and reasonable time, place, and manner restrictions must pass
intermediate scrutiny
c) the government does not create a DPF when it merely reserves eligibility for
access to the forum to a particular class of speakers, whose members must still
obtain permission to use it (AETC — televised debates are a nonpublic forum)
nonpublic forum = schools (Rockford), airport terminals (Lee), household mailboxes
(Greenburgh Civic Associations), open areas in military bases (Spock), postal sidewalks
(Kokinda, plurality); public property that is not by tradition or designation a forum for
public communication
a) restrictions only permitted if they are reasonable and viewpoint-neutral, but they
can be content-based (Perry)
i.
e.g., government could prohibit abortion speech on a military base, but if it
permits pro-life speech then it must also allow pro-choice
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4.
B.
III.
limited forums (unclear how these differ from nonpublic forums) = once a state opens
a limited forum, it cannot exclude speech if such exclusion is either (a) unreasonable in
light of the purpose of the forum, or (b) if such exclusion is based on viewpoint
(Rosenberger, invalidating public university policy of not providing finances to student
groups supporting religious activities)
a) all-comers requirement policy for student group funding at a public law school is
constitutionally viewpoint-neutral (Martinez)
Walker (license plate): When the state itself is speaking, it can exercise control over speech
1.
this even applies to permanent monuments in public parks (Summum)
Religious speech on public property
A. is a unique case because of the countervailing interests of the Establishment Clause
B.
IV.
Widmar: public universities making their facilities available for registered student groups
must also make those facilities available for religious student groups
1.
Lamb’s Chapel extended this to say that public schools allowing social/civic/
recreational functions also had to permit religious uses
C. Pinette: government cannot prevent the KKK from erecting a Latin cross in a public forum,
because that is impermissible content discrimination
D. Summum: permanent monuments in a public forum park are government speech and can be
regulated
Schools
A. Tinker test: government may not regulate student speech unless there is (a) a material or
substantial interference with the school’s operation or (b) collision with the rights of
others to be secure and left alone
1.
“undifferentiated fear or apprehension of a disturbance” is not enough to override free
speech; teachers and students do not surrender First Amendment rights at the
schoolhouse gate
2.
exceptions to the Tinker test—schools may regulate the following types of student
speech outside the realm of substantial interference or collision of rights:
a)
b)
c)
B.
C.
V.
lewd and indecent speech (Fraser)
speech reasonably perceived to bear the imprimatur of the school (Kuhlmeier)
speech promoting drug use (Morse)
Pico: school officials may not remove books from school libraries simply because they find
the books to be objectionable
SCOTUS has yet to directly address the issue of student speech occurring off-campus
Speech restrictive conditions on public funds
A. Governmental benefits cannot be conditioned on the surrender of First Amendment rights,
meaning the government generally cannot tell you what to say (Speiser); these
“unconstitutional condition” cases arise when the government offers a benefit on the
condition that the recipient perform or forgo an activity that is generally free from
government interference
1.
Government cannot use the leverage of a subsidy to prevent recipients from engaging
in speech that they could otherwise do with their own resources, BUT the government
can avoid the problem by simply not paying for speech it disagrees with
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a)
b)
government can choose to not provide tax deductibles to organizations that
participate in lobbying; this is a “non-subsidy” (Regan)
government cannot prohibit broadcasting stations receiving federal grants from
“editorializing”; this is a “penalty” (FCC v. League of Women Voters)
i.
c)
d)
this was distinguished from Regan because the benefit in Regan applied to
specific activities of the recipient organizations and could thus be
segregated, whereas the benefit in League of Women Voters automatically
barred all editorializing even if the recipient used entirely private funds to
editorialize
[widely considered to be wrong] government can selectively fund a program to
encourage certain activities, while simultaneously not fund an alternative
program that deals with the issue in a different way. "This is not viewpoint
discrimination, but merely funding one activity to the exclusion of the other” (the
fuck, Rehnquist?) (Rust v. Sullivan)
public university cannot selectively fund secular student extracurriculars but
deny funding to religious student extracurriculars (Rosenberger)
i.
distinguished from Regan because Regan was not viewpoint discrimination
ii. distinguished from Rust because Rust was government speech
iii.
e)
2.
dissent said that the school policy applied to all religions and was therefore
not viewpoint-based
government cannot prevent a legal services organization from funding
organizations that want to amend existing welfare law
i.
distinguished from Rust because this case was designed to facilitate private
speech and was closer to Rosenberger
Conditions on federal funding are permissible if they define the limits of the
government spending program—conditions that specify which acts Congress wants
to subsidize; BUT conditions on federal funding are not permissible if they seek to
regulate speech outside the context of the program (Alliance for Open Society)
a)
b)
imposing a belief as a precondition for funding falls outside the scope of federally
funded programming
Government cannot prohibit the registration of trademarks that may “disparage
or bring into contempt or disrepute” any persons (Tam)
i.
trademarks are not government speech; they belong to the persons
registering them
ii.
VI.
trademarks are not a form of government subsidy because no payments are
being made to the registrants
Injunctions
A. prior restraint = judicial suppression of material that would be published or broadcast, on
the grounds that it is libelous or harmful. The government is presumptively prohibited from
using prior restraints (Near)
1.
but Near noted that “no one would question” the government preventing actual
obstruction to its recurring services, or publishing the locations and numbers of
troops”
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2.
B.
Even in the case of national security, any prior restraint comes to the Court with a
heavy presumption of unconstitutionality. The government bears a heavy burden of
justifying these restraints (New York Times)
a) but in a DIST case, Progressive, the judge prevented a magazine from publishing a
detailed, compiled article about the manufacture of atomic weapons (despite the
fact that all the information in the article was publicly available)
3.
in the case of trying to ensure fair trials, the Court didn't even allow a prior restraint
“gag order” with the purpose of blocking potentially prejudicial information about the
defendant from getting out
collateral bar rule = injunctions must be obeyed until they are lifted; if an injunction is
violated, its unconstitutionality is not a defense to a finding of contempt (Walker v.
Birmingham)
Compelled Speech
THE RIGHT NOT TO SPEAK
I.
Compelled individual speech
A.
B.
Government cannot require school children to salute the flag during the pledge (Barnette)
State cannot place the motto of “Live Free or Die” on its license plates; First Amendment
freedom of thought includes both the right to speak freely and the right to refrain from
speaking at all (Maynard)
C.
II.
III.
Government cannot require organizations providing professional services to “speak a
particular message” (remember this is outside the context of government funding, so Rust
doesn't apply) (Becerra — CA law tried to combat fake abortion centers by requiring certain
disclosures)
Compelled speech and private discrimination
A. Government cannot force private groups to include a message they do not wish to endorse
(Hurley — parade)
1.
but the government can regulate conduct (FAIR — government is able to deny funding
to private schools that do not provide equal access between military recruiters and
other employers)
Compelled speech standard
A. Law does not compel speech: rational basis
B. Law compels speech for reasons unrelated to content: intermediate scrutiny
C.
Law compels speech on the basis of content: strict scrutiny
FREEDOM OF EXPRESSIVE ASSOCIATION
I.
Right of association
A.
II.
Individuals possess a right of association, derived from the individual right of expression.
This right is a liberty right guaranteed by DP and therefore gets strict scrutiny (NAACP v.
Alabama)
Compelled disclosure of membership
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A.
B.
III.
Compelled disclosure of an organization’s rank and file members violates the right of free
association and must pass strict scrutiny (NAACP v. Alabama)
Compelled disclosure of an individual’s membership to organizations violates the right of
free association and must pass strict scrutiny (Shelton)
Compelled disclosure of political campaign contributions
Disclosure requirements
Individual expenditure
limits
Individual contribution
limits
Buckley v. Valeo 1976
constitutional
unconstitutional
constitutional
McConnell v. FEC 2003
constitutional*
-
-
Citizens United 2010
constitutional*
-
unconstitutional
* except as applied to organizations donating $10,000+ if members face reasonable
probably of threats
IV.
Restrictions on organizational activities
A. Litigation is a form of political expression and is therefore protected by the right of
association (Button)
1.
Button extended to non-constitutional litigation (Brotherhood of Railroad Trainmen)
2.
B.
V.
Button extended to unions’ ability to retain lawyers to assist members (United Mine
Workers)
Boycotts are generally legal if nonviolent; isolated violent acts committed by boycotters will
not render the boycott as a whole to be illegal (Claiborne Hardware)
1.
but government can enjoin boycotts that frustrate the enforcement of lawful public
policy, like economic functioning (International Longshoremen)
The right not to associate
A. There is a general right to not associate, and individuals can refuse union dues if those dues
are used for things the individuals do not want (Abood)
1.
BUT unions cannot assess fees on public employees to create a fund for the union's
political activities (Knox)
2.
and the Court basically killed Abood by later ruling that unions cannot compel
nonmembers to subsidize private speech on matters of substantial public concern
(Janus)
B. Students do not have a right to recoup fees paid to the school that is diverted to student
group speech they do not support because universities have more leeway in choosing what
speech to support (Southworth)
C. Compelling interest in eradicating discrimination outweighs the right to not associate —
groups cannot exclude women for being women (Jaycees)
1.
BUT this was cabined: Forcing an organization to include a member infringes free
association if that person’s presence significantly affects the group’s ability to
advocate public or private viewpoints (Boy Scouts of America)
a) “instilling values in young people” qualifies as a viewpoint, apparently
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MONEY AND POLITICAL CAMPAIGNS
Disclosure
requirements
Individual
expenditure limits
Individual
Electioneering
contribution limits communication
restrictions
Corporate
expenditure limits
Buckley v. Valeo
1976
constitutional
unconstitutional
constitutional
-
-
McConnell v. FEC
2003
constitutional*
-
-
constitutional
constitutional
Wisconsin Right
to Life 2007
-
-
-
constitutional**
-
Citizens United
2010
-
-
-
-
unconstitutional
* except as applied to organizations donating $10,000+ if members face reasonable probably of threats
** telling viewers to “call Senator Feingold” and protest a filibuster is not express advocacy; BCRA cannot regulate nonexpress advocacy
- stopping corruption and the appearance of corruption (but only quid-pro-quo corruption) is a compelling
governmental interest. After Citizens United, it is arguably the only valid compelling interests in election regulations
- slowing the skyrocketing of campaign costs is not compelling
I.
Parties, corporations, PACs, super PACs, and political money
A. Parties
B.
1.
Political parties can spend funds freely in support of or against candidates as long as
they do so separate from the campaign itself (Colorado I)
2.
Parties may not coordinate expenditures with the candidates (Colorado II)
Corporations
1.
Corporations can spend their own treasury funds on political speech for state
referenda (Bellotti)
2.
Corporations can use their own treasuries to engage in political speech, even if
that speech is express advocacy (Citizens United)
C.
PACs
1.
Non-profit PACs can spend their own treasury funds on political speech (MCFL)
D.
Miscellaneous
1.
BCRA is valid when it proscribes express advocacy (McConnell)
a)
an ad is the functional equivalent of express advocacy only when the ad is
susceptible of no reasonable interpretation other than as an appeal to vote for or
against a specific candidate (Wisconsin Right to Life — effectively overruled
McConnell)
i.
2.
3.
telling viewers to “call Senator Feingold” to protest his filibuster of judicial
nominees is not express advocacy (Wisconsin Right to Life)
BCRA cannot level the playing field by offsetting a rich candidate’s personal funds via
letting her opponent receive donations at triple the normal amount (Davis)
Aggregate individual contribution limits (which cap the total amount of money
someone can contribute to all candidates or committees) are unconstitutional
(McCutcheon)
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E.
Loopholes
1.
2.
soft money = political money given to parties to spend on state and local elections
issue advocacy = advocating for certain issues and avoiding buzz words like “elect” or
“defeat,” which would be classified as express advocacy
3.
Congress passed BCRA to close these loopholes. BCRA was upheld in McConnell but
seriously weekend in Citizens United
a) closing the soft money loophole:
i.
national party committees cannot solicit/receive soft money
ii.
iii.
state and local parties cannot spend soft money on federal elections
prohibits transferring soft money to/from tax-exempt organizations that are
involved in election activity
iv.
federal candidates cannot solicit/receive/spend soft money in connection
with federal elections (and seriously limits ability to do so for state and local
elections)
v.
b)
state and local candidates cannot raise/spend soft money to promote/attack
federal candidates
closing the issue advocacy loophole: BCRA banned electioneering
communications, which are broadcasts, cables, or satellite communication that
(I) refers to a clearly identified candidate for federal office; (II) is made within (aa)
60 days before an election for the office sought by the candidate or (bb) 30 days
before a primary or preference election, or convention or caucus of a political
party that has authority to nominate a candidate for the office sought by the
candidate; and (III) in the case of a communication which refers to a candidate
other than the President or VP, is targeted to the relevant electorate
The Religion Clauses
I.
II.
Congress shall make no law respecting an establishment of religion . . .
. . . or prohibiting the free exercise thereof.
INTRODUCTION
I.
II.
[Establishment] Congress shall make no law respecting an establishment of religion . . . [Free
Exercise] or prohibiting the free exercise thereof.
Defining religion
A. Religion is broadly defined: the test of belief is whether a given belief is (a) sincere and
meaningful and (b) occupies a place in the possessor’s life that is parallel to that held by
someone with an orthodox belief in God (Seeger)
B. A jury cannot decide the truth or verity of someone’s religious beliefs, only whether that
person sincerely believes what they claim to believe (Ballard)
FREE EXERCISE OF RELIGION
I.
Laws discriminating against religion
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II.
A.
Facially neutral laws that target specific religions infringe on Free Exercise (Lukumi)
B.
Without a finding of animus, laws that condition public funding to specific religious groups
such that they cannot be used for certain things are not discriminatory (Locke — state
funding could not be used for devotional theology), but denying funding to religious
organizations solely because they are religious organizations—and when the funding is
provided to secular organization—is discriminatory (Comer — playground resurfacing)
Religious exemptions
A.
B.
C.
D.
E.
F.
Smith — If prohibiting the exercise of religion is not the object of the regulation but
merely the incidental effect of a generally applicable and otherwise valid law, the law
does not violate the First Amendment (unless the generally applicable law impinges on
another constitutional right or a parental right)
Freedom to belief what one chooses is absolute, but freedom to act on those beliefs is not
absolute (Cantwell)
A law does not infringe Free Exercise if it indirectly burdens religion (e.g., making it slightly
more expensive to practice your religion) (Braunfeld — Sunday closing law imposed on
Orthodox Jewish businesses)
Government cannot deny unemployment benefits on the basis of religion if the denial has
a truly coercive effect (Sherbert — Seventh Day Adventist refused to work on Saturday)
Government cannot force children to attend school over religious objections (Yoder)
Failed religious exemption attempts:
1.
2.
3.
avoiding paying social security taxes (Lee)
religiously-“mandated" racial discrimination (Bob Jones University)
wearing a yarmulke in the military in violation of dress code (Goldman)
4.
5.
6.
G.
avoiding being identified by social security number for food stamp purposes (Bowen)
preventing road construction through sacred lands (Lyng)
circumventing a law prohibiting drug use as a precondition for unemployment benefits
(Smith — peyote)
RFRA = legislative effort to restore some religious exemptions, prohibits government from
substantially burdening someone’s religious exercise through a law of general applicability
unless the government demonstrates that it satisfies strict scrutiny
1.
2.
H.
no longer applies to states (City of Boerne) but still applies to the federal government
Corporations are persons for the purposes of RFRA analysis and can have religious
beliefs (Hobby Lobby); the ACA’s contraceptives mandate violates Hobby Lobby’s
corporate religious beliefs and fails strict scrutiny
RLUIPA = a narrower form of RFRA that applies to prisons and land zoning
1.
Federal and state governments cannot prevent Muslim prisoners from growing a halfinch beard to comply with his faith; interests in safety can be accomplished via less
restrictive means (Holt v. Hobbs)
ESTABLISHMENT CLAUSE
I.
Lemon Test
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A.
II.
Effectively rendered inert by American Legion: To survive an Establishment Clause
challenge, a law must meet three criteria:
1.
statute must have a secular legislative purpose,
2.
principal or primary effect of the statute must neither advance nor inhibit religion,
3.
the statute must not foster an excessive entanglement with religion
Public financial aid to religious institutions
A. Government cannot exclude religious individuals from receiving the benefits of public
welfare legislation (Everson — state can reimburse Roman Catholic parents for transporting
their children to parochial schools on public buses)
B. how the Court has treated aid to religious schools:
1.
states can lend secular books (Allen) and other instructional materials (Mitchell) to
parochial schools
2.
states can subsidize parochial schools for the cost of administrating state-prepared
exams (Levitt)
3.
4.
5.
states can provide financial aid to parochial school parents (Mueller)
states cannot reimburse parochial schools for teacher salaries, textbooks, etc. (Lemon)
states cannot provide transportation for parochial school field trips, despite is holding
in Everson (Wolman)
6.
C.
states cannot allow parochial school instructors to use the “compulsory public school
machine” to teach sectarian classes at public schools during school hours (McCollum)
a) but students can be released during school hours to attend sectarian classes
outside of the public school (Zorach)
Criteria for evaluating whether public financial aid to religious institutions is valid:
1.
general beneficiary class — the larger and more general the statutory class of
beneficiaries, the more likely it is to pass muster
2.
decentralized choice — aid that is indirectly channeled to parochial schools is much
likelier to pass muster than aid that is directly given to them
a)
BUT Agostini held that direct government aid to the educational function of
schools is not per se invalid
b)
III.
also: when government aid is neutral toward religion and provides aid directly to
a broad class of citizens, and that class then direct the aid to religious
institutions wholly as a result of their own genuine and independent choice, the
program is not subject to an EC challenge (Zelman)
D. Court is more willing to allow government aid to go to higher ed religious institutions
because college students and older are less impressionable (Tilton)
Rise of the Mueller inclusionary view
A. A law is not unconstitutional simply because it aids a religiously-affiliated institution in
some manner; religious individuals and institutions can generally receive government
benefits as long as they do so on the same terms as other comparable beneficiaries
(Mueller)
1.
Government aid recipient can spend it for a religious purpose as long as religiouslydriven recipients do not receive greater benefits than non-religious ones (Witters)
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2.
IV.
Government program to provide sign language interpreters can benefit parochial
school students if provides the benefit to a broad class of citizens not on the basis of
religion (Zobrest)
3.
Placing public employees on parochial school grounds does not automatically create
state-sponsored indoctrination (Agostini)
Religion in public schools
A. Government may not place its power, prestige, and financial support behind a religious
belief due to the coercive pressure on religious minorities to conform (Engel)
1.
2.
3.
B.
Public schools cannot set aside time each day for “moments of silence or voluntary
prayer” because that has a clear sectarian purpose (Jaffree)
Inviting a rabbi to give a nonsectarian prayer in school at graduation violates the
Establishment Clause (Weisman)
Students may not lead prayers at public schools if they do so with the authority of the
school at a school-sponsored event (Santa Fe)
Religion and the public school curriculum
1.
Public schools cannot post the Ten Commandments in their classrooms (Stone)
2.
“Under God” within the pledge of allegiance is not an EC violation, given the prevalence
of phrases like “In God we trust” in our society (Elk Grove)
3.
V.
States cannot prevent the teaching of evolution because it conflicts with a particular
religious belief (Epperson and Aguillard)
Public displays of religious symbols
A.
B.
C.
D.
While historical practices and traditions do not create an exception to the EC, they must be
considered when deciding whether a practice violates the EC (Town of Greece — legislative
prayer led by volunteer clergy does not violate EC)
1.
Legislative prayer does not need to be nonsectarian
Whether or not a government’s religious display violates the EC depends on the context in
which the display constructed
1.
Government erecting a nativity display along with secular holiday decorations in a
nonprofit-owned park is not an EC violation (Lynch)
O’Connor developed an “endorsement test” that was adopted by the Court: the
government action may not have the purpose or effect of endorsing religion—it cannot
make adherence to a particular religion relevant in any way to a person’s standing in the
community (Allegheny County)
1.
Nativity display belonging to a Catholic organization placed on courthouse steps
violated EC because it stood alone and was not surrounded by secular decorations, but
a Jewish Chanukah display placed next to a Christmas tree was okay (Allegheny
County)
2.
Government must allow KKK to erect an unattended latin cross in a public square
adjacent to the statehouse. There were other private, unattended symbols, so there
was not a significant enough risk of endorsement
(returning to the Lynch framework) Government cannot post the Ten Commandments in
isolation in its courthouses for all to see. With no secular objects to contextualize the
Commandments, they have a clear sectarian purpose (McCreary)
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1.
2.
[this doesn't make any sense in context of the other cases here] BUT a Ten
Commandments monument in the area surrounding the TX state capitol is okay
because of our nation’s history and the nature of the monument (Van Orden)
Alito put forth a squishy history and tradition test in American Legion that discards
Lemon; the test considers the following four things:
a) identifying the original purpose of monuments or symbols can be difficult
b) the purposes of many objects, symbols, and monuments can multiply over time,
and it can acquire many secular meanings
c)
d)
symbols also begin to embed in the communities around them
when monuments become entrenched in a community, it may become
impossible to remove them in a way that is neutral
RECONCILING THE RELIGION CLAUSES
I.
Free Exercise v. Establishment
A.
II.
There exists a universe of government actions permitted by the Establishment Clause, but
not required by Free Exercise. Within this zone, government can exercise discretion in
regulating religion (Locke v. Davey)
1.
Government can directly provide funding to a church if that funding is being used for a
secular purpose, like playground resurfacing. Government cannot discriminate against
an organization solely due to its religious character or status (Comer) but they can
discriminate based on religious use (Locke)
Legislative accommodation of religion
A. Government may not delegate to a religious entity the power to exercise civic authority
(Larkin — MA cannot give churches and religious schools the ability to veto liquor licenses
within a set area around them)
B. Employers must make reasonable accommodations for the religious practices of their
employees and cannot discriminate on the basis of religion (Trans World Airlines)
1.
but employees do not have the absolute power to declare any day of the week to be
their Sabbath (Thornton)
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Scrutiny
EQUAL PROTECTION : In Bolling v. Sharpe, the Supreme Court held that the Fourteenth Amendment guarantee of
equal protection of the laws (which textually only applies to the states) also applies to the federal government
DUE PROCESS : protects fundamental rights (whether a right is fundamental depends on [i] history and tradition
and [ii] whether failing to recognize the right would contravene liberty and justice). GLUCKSBERG. The Fifth
Amendment says that the federal government may not deprive a person of “life, liberty, or property without the
Due Process of law”; the Fourteenth Amendment says that the state governments may not deprive a person of
“life, liberty, or property without the Due Process of law”
SUSPECT CLASSES RECEIVING STRICT SCRUTINY
I.
II.
III.
Race
National Origin
Religion
IV.
Alienage
PRIVACY
I.
II.
Abortion: SPECIAL, UNDUE BURDEN TEST — Casey (formerly STRICT under Roe)
Marriage: STRICT — Loving
III.
IV.
V.
Same-sex marriage: UNKNOWN6 (but states cannot deny this right) — Obergefell
Family living arrangements: STRICT — Moore
Suicide: RATIONAL BASIS — Glucksberg
VI. Gender: INTERMEDIATE — United States v. Virginia
VII. Child legitimacy: INTERMEDIATE — Clark v. Jeter
RACE
I.
All race-based distinctions: STRICT — Korematsu
A. malevolently racist and race-conscious remedial policies are treated the same; due to “strict
in theory, but fatal in fact,” this means almost no race-based remedial policies can survive
B. valid compelling governmental interests for race:
1.
2.
II.
Racial purpose and effect
A.
Facially neutral laws can be struck down as racially discriminatory when they
1.
have racially discriminatory applications (Yick Wo)
2.
have an underlying purpose that is racially discriminatory (Gormillion), or
3.
6
remedying past racial discrimination, SUPER HIGH STANDARD (Adarand)
deriving the educational benefits that flow from diversity, MEDIUM-HIGH STANDARD (Fisher)
have racially discriminatory effects (Arlington Heights)
a) can be shown if a discriminatory purpose was a “motivating factor” using the
following considerations:
But it is at least rational basis with a bite. Romer v. Evans
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i.
b)
impact of the law
ii. history behind the law’s passing/drafting, and
iii. lead-up to the decision and any departures from normal procedure
if the challengers show this, the burden shifts to the defendants to show that the
outcome would have been the same without the racially discriminatory purpose
SEX
I.
All sex-based distinctions: INTERMEDIATE — Craig v. Boren
A. this actually means laws intending to remedy past sexual discrimination are more likely to
survive (so lesser scrutiny does more for victims of sex discrimination than greater scrutiny
does for victims of race discrimination)
1.
remedial sex-based policies are generally upheld as long as they do not reinforce
“archaic or traditional stereotypes” for women
B. “intermediate scrutiny plus”? Hogan held that gender-classifying laws needed an
“exceedingly persuasive justification”
II.
Sex-based purpose and effect test (Feeney):
A. whether the classification is indeed neutral in the sense that it is not gender based. If it is
not gender based, then . . .
B. whether the adverse effect reflects invidious gender-based discrimination (with impact
being an important starting point of analysis)
NON-FUNDAMENTAL INTERESTS
I.
Education: RATIONAL BASIS — San Antonio Indep. Sch. Dist.
II.
III.
Housing: RATIONAL BASIS — Lindsey v. Normet
Welfare benefits: RATIONAL BASIS — Dandridge
SPEECH AND EXPRESSION
I.
II.
III.
IV.
Voting: SPECIAL, “METICULOUSLY SCRUTINIZED” — Virginia Board of Electors
Compelled speech
A. law compels speech for reasons unrelated to content: INTERMEDIATE
B. law compels speech on the basis of content: STRICT
Right of association: STRICT
Individual political contribution limits: INTERMEDIATE — Shrink
V. Individual political expenditure limits: STRICT — Buckley
VI. Political party campaign contribution limits: INTERMEDIATE — Colorado II
VII. Corporate state referenda expenditure limits: STRICT — Bellotti
VIII. PAC campaign expenditure limits: STRICT — Massachusetts Citizens For Life
Constitutional Law II / Edelman 2019
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RELIGION
I.
Laws of general applicability that incidentally burden religion: RATIONAL BASIS — Smith
II.
Laws discriminating against a particular religion: STRICT — Lukumi
Constitutional Law II / Edelman 2019
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