Spring 2018
Equal Protection Outline
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14th Amendment: “No state shall ... deny to any person within its jurisdiction the equal protection
of the laws”
o Applies only to the states and localities
5th Amendment – no federal EP clause, but Due Process includes rights guaranteed by the equal
protection clause
EP claims must be against a Government Actor and there must be Intent
EP rights are individual and personal – Concerned about group classifications – Government is
dividing the world into 2 groups
Levels of Scrutiny
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Rational Basis Review
o The measure must bear a Rational Relationship to a Legitimate State Interest
▪ Is there any reasonably conceivable state of fact that could provide a rational basis for the
classification?
o Post-hoc justifications → YES
o Burden of Proof is on the π to prove the law is arbitrary or irrational
Intermediate Scrutiny
o The measure must bear a Substantial Relationship to an Important State Interest
o Post-hoc justifications → NO
o Burden of Proof is on the Government
Strict Scrutiny
o The measure must be Narrowly Tailored to a Compelling State Interest
▪ Narrowly Tailored → Least Restrictive → Necessary to achieve compelling interest
o Post-hoc justifications → NO
o Burden of Proof is on the Government
Proving Discrimination
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What is discrimination? → Recognizing differences
o Government needs to be able to recognize differences when those differences actually matter
▪ We do not want Invidious Discrimination
Discriminatory Intent is required to get Heightened Scrutiny
o Disparate impact/effect, without intent is not enough
o Can show intent 3 ways:
1) Facially
 No conceivable set of circumstances where it could be constitutional
2) As Applied
 Isolate the decision making criteria → does it matter (Yick Wo)
 What is the goal Government is trying to pursue?
 If π can prove that a discriminatory purpose was used when applying or passing the law,
then the law violates EP
3) Discriminatory Motive
 Can be Inferred, look to the following factors:
a) Historical back ground
b) The specific sequence of events leading up to the challenged action
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c) Normal procedural sequence of the State & any substantive departures
d) Legislative History
Classifications
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Suspect = Strict Scrutiny
Quasi-Suspect = Intermediate Scrutiny
Non-Suspect = Rational Basis
Look to a variety of factors to determine which to apply, because we want a principled basis for
making distinctions:
1. Is the group a Minority?
2. Discrete (identifiable)
3. Insular (isolated) → historically disfavored?
4. Involuntary?
5. Immutable?
6. Irrelevant? Is the characteristic relevant in terms of the government’s objective
Cleburne Factors:
1. Relevance – if relevant to the government interest, it should be considered and thus get lower
level scrutiny
2. Antipathy – has disfavorable treatment been contradicted by statues?
3. Insularity – is the group politically powerless? (running buddy with antipathy)
4. Slippery Slope – difficult to find a principled basis to distinguish other groups
Classifications can be Over-Inclusive or Under-Inclusive
o Under-Inclusive: there is a problem or state interest, but the government is making a
classification that doesn’t include everyone that is related to the it
▪ This is okay under Rational Basis Review
▪ In heightened scrutiny it may be a problem (tell me more)
▪ Government CAN proceed incrementally → not required to solve the entire problem in one
swoop
o Over-Inclusive: there is a problem/state interest, but the government is including too many
people in the classification
▪ May or may not matter, case specific
Suspect Classifications → Strict Scrutiny
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Race, Ethnicity, National Origin
o Courts are going to be:
A. Skeptical – these classifications are generally based on stereotypes, and in most instances
those characteristics are irrelevant
B. Consistent – same standard of review → immediately suspect and given the “most rigid
scrutiny”
C. Congruent – apply same standard to State and Feds
Alienage
o Aliens are a discrete and insular minority that have been historically disfavored
o The division is Citizens vs. Non-Citizens → Strict Scrutiny
▪ State CANNOT prohibit aliens from:
 Owning land
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 Obtaining commercial fishing license
 Welfare benefits eligibility
 Civil service job eligibility
*2 Exceptions to suspect classification of Aliens
1) Political Function Exception
 Public positions that “run at the heart of representative democracy” will get RBR
 Does the position allow the alien to participate directly in the formulation, execution,
or review of public policy, OR to use broad discretion?
2) Illegal Alien Exception
 Status as an illegal alien is not a suspect class, and thus does NOT get Strict Scrutiny
(likely get RBR)
 Children of Illegal Aliens are different though because they are seen as “innocent
victims” → NOT RBR
 State CANNOT deny them primary or secondary education benefits (Plyler)
o Federal Interest > State Interest
▪ Congress has plenary power over aliens, thus a federal alienage classification is likely valid,
UNLESS it is Arbitrary and Unreasonable
 Federal is going to have an easier time in justifying an interest than a State
▪ Federal Scheme that is Non-Citizen vs. Non-Citizen does NOT trigger strict scrutiny
 UNLESS it involves a fundamental right
o
Quasi-Suspect Classifications → Intermediate Scrutiny
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Gender
o Gender is involuntary and Immutable, Discrete, and there is a history of discrimination against
women
▪ BUT is either group insular? Plus, neither gender is a minority group
o Classification on the basis of gender requires “Exceedingly Persuasive Justification”
▪ Still just intermediate scrutiny, but USE THAT PHRASE for gender
▪ Gender neutral is NOT constitutionally required, but would be better for the government’s
case
o The justification must be genuine and CANNOT rely on overbroad generalizations or
stereotypes
o Biggest determination is whether or not it matters for the government’s purpose:
▪ Are men and women Similarly Situated?
▪ Is the classification Relevant to the state interest?
Legitimacy
o Illegitimate children are an insular minority that have a history of discrimination
▪ BUT, are NOT discrete and sometimes it can be Relevant
 Could matter for intestate succession
o Biggest determination is whether or not it matters for the important state interest
▪ Substantial relationship, how closely related to that interest is the classification?
o Watch out for different treatment based on mother vs. father
▪ This may be a gender classification
Non-Suspect Classifications → Rational Basis Review
 Age
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As a constitutional matter → RBR
▪ BUT Congress has intervened with statutory rules
Wealth
o Poverty is NOT Immutable or Involuntary
o Additionally, there is a “discretionary economic/social program”
▪ Government has no obligation to create a social/economic benefit
▪ Remedy is through the political process
Mental Illness
o Although they meet several of the factors to become suspect classifications, SCOTUS did NOT
apply heightened scrutiny for 4 Reasons (Cleburne)
1) Relevance – government should be able to take this difference into account
2) Antipathy – belies continual antipathy, nah cause we have statutes protecting them
3) Insularity – the group is NOT politically powerless, see the statutes
4) Slippery Slope – if we give it to them, whose next?
o SCOTUS said they were applying RBR, but they held the classification irrational...
Sexual Orientation
o This classification is up in the air, there is currently a circuit split on the issue
o Homosexuals are a Discrete Minority with a history of discrimination
▪ BUT they aren’t Insular anymore (if you think so, give me a break)
▪ Immutable and Involuntary? – Arguable
o Big question turns on; is the classification Relevant given the State’s purpose
▪ Yes, for discretionary social programs (?)
 BUT not if it’s based on stereotypes or animus
o You can probably get this up to Intermediate Scrutiny if the conditions are right
▪ If you want to get strict scrutiny, you’re probably going to have to raise a fundamental right
issue
 Fundamental right to privacy, which includes the right to make certain important
personal decisions – two consenting adults in the privacy of your home
 BUT that isn’t really about Sexual Orientation
 Are LGBT Discrete, Insular, Involuntary, Immutable?
 Is T a gender issue?
o
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Education
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Education is NOT a fundamental right
o State constitutional issues
School Segregation
o To make out this claim you must show:
1) Intentional Government Action designed to create or maintain schools that are segregated
on the basis of some identifying characteristic
 With Full Knowledge that it would lead to such segregated schools
 What is the factor? Can government use it as an appropriate criteria?
2) Existence of identifiable schools on the basis of the identifying characteristic
 This is your injury in fact
o Applies to the Feds through the 5th
o Remedy – if a school board doesn’t take measures to eliminate intentional racial segregation
of schools, the court can order the district to implement measures to do so
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These have to be temporary, and must be terminated once the “vestiges of past
discrimination” have been eliminated
 i.e. bussing, funding, quality, attendance zones, etc...
o Unitary Status will remove a school district from federal court supervision because it’s no
longer an intentional government action to discriminate
▪ School is saying “We fully complied with all of our obligations and the identifiable schools
are not the product of intentional government action”
▪ Court has to declare this status, meaning they have cured the constitutional violation
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Reverse Discrimination and Affirmative Action
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Intentional (Benign) discrimination by the government with “good” intentions
o Remedial or Compensatory purpose by the government
Equal protection is an individual and personal right
o So even if this is for a good intention, the same standards apply
Race, Ethnicity, or National Origin → Strict Scrutiny
o *Only 2 compelling state interests*
1) Remedying the present effects of its own past invidious discrimination
 Need actual real world present harm
 Societal discrimination is no good
2) Obtaining a diverse student body via the admissions process in higher education
 Seen as an asset to the school (not sure about k-12)
o If there is a compelling reason, the means still must be narrowly tailored
▪ In higher education that means:
 Consider neutral alternatives – is this use of the classification necessary
 Needs to be individualized – Holistically assess the entire individual
 NO Quota system (“critical mass” might be a problem)
 NO separate admissions track –
 The weight given to diversity cannot be dispositiveburdensome to the other group
 It needs to only be a “plus factor”
 Needs to be temporary – Periodically reassessed
Gender
o Still needs to be an exceedingly persuasive justification (intermediate scrutiny)
States may allow voters to choose whether racial or gender preferences should be adopted,
continued, or ended
o Whether to do it is totally up to them, and they will get deference on the decision BUT if they
do it has to be done right
Travel
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Travel between and among the several states = implied fundamental right → Strict Scrutiny
*2 types of residency requirements*
1) Bonafide Residency Requirement
▪ State has a compelling interest in ensuring that a person has severed the ties with the
previous jurisdiction if that person wants the benefits of living in their state
 Requiring things like permanent address, banking/checking accounts, taxes, etc...
▪ Government is likely to win
2) Durational Residency Requirement
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Requiring somebody to have lived in the state for a certain amount of time to qualify for a
state benefit must be narrowly tailored for a compelling government interest
▪ If durational residency requirements deny somebody a benefit, courts looks to:
i. Why the government is acting;
ii. The nature of the benefit being denied; AND
iii. The duration of the residency requirement
▪ i.e. ability to vote in local elections
 government must show the time is necessary to ensure free and legal elections
 Might be okay, depends on the facts
▪ i.e. receiving in-state tuition
 Temporary residency requirement is ok – cannot be an irrebuttable presumption
▪ i.e. receiving necessities (food stamps/shelter/emergency health benefits)
 difficult for government to justify
*3 Aspects to Travel*
1) The ability to Enter & Leave Freely
2) Treated as a Welcomed Visitor (Art. IV P&I)
3) Bonafide = Bonafide (14th P&I)
▪ Elect to become permanent resident, means you are treated as a permanent resident
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Voting
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Even though there is no express recognition, voting = Fundamental right → Strict Scrutiny
o Dispositive of all other rights – the political process is typically the available remedy
▪ Thus there is a close relationship between voting and RBR
 Which is why we apply Strict Scrutiny when voting rights are implicated
Right to Vote is NOT absolute – individual and personalized
o State has a compelling interest in ensuring a fair, orderly, and legal election process
o As a constitutional matter, government can require a literacy test to vote
o States can require proof of identification to vote
▪ Prevention of fraud – Needs to be narrowly tailored
o States can deny felons the right to vote, but it has to be because they’re felons
▪ Supported by §2 of the 14th amendment
▪ Watch out for the intent of government on all of these (can’t do a protected class)
Apportionment – “One Person, One Vote”
o Every person’s vote should count the same
▪ The right to vote is individual and personalized
▪ Ideally apportionment will be mathematically even
 BUT states may deviate from the ideal if for principled reasons
 4 principled factors:
1) Compact district
 Want the same community of interest/needs
2) Respect for Political Subdivision Lines
3) Preserve Prior Districts
 Voters have developed associations and communities of interest, so we don’t
want to break those up
4) Incumbents/candidates are important (Cases with regard to filing fees)
 Voters have expressed preference in the candidate
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State needs to make an Honest and Good Faith effort to construct districts as close to equal
population as practicable
 Math is NOT the be all end all (tell me more) (don’t assume based on math)
Apportionment must be based on Total Population
Super Majority
 Requiring a supermajority is acceptable for extremely important decisions
 U.S. constitution has some of them
 What is the nature of the election? Nature of the governmental body?
 Is it general governmental power?
 Does it affect everyone?
 i.e. a very narrowly focused government activity → focus on the people affected
Weighted or Proportional Voting
 May be permissible depending on:
 The nature of the election and special issue at stake
 Not a general unit of government exercising general government power?
We do NOT need to know majority-minority districts for the exam
 you can take race into account but it cannot be the determining factor
 usually a mix of constitutional and statutory issues
 there is a difficult standard to work with
State Action Doctrine
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EP claim must be against a government actor who acted with intent
o Can the conduct be “fairly attributable to the government”
Congress CANNOT use §5 of the 14th to pass a measure that protects individuals from
discrimination by a Private actor
o BUT the 13th amendment does NOT require a state actor
▪ Therefore, Congress can take action that relates to Slavery, Involuntary Servitude, and
Badges or Incidents of Slavery
 i.e. private housing sellers, private schools, private employers, contracting, buying
property, etc...
Government Actor = court, jury, or government official
o IF a private actor is engaged in government functions then courts consider:
A. The nature of the relationship between the private actor and government
 Is there a symbiotic relationship between the two parties?
B. The authority the private actor has
 What is the source of their power?
C. Joint Party Test
 Willful participation in a joint activity with the state or its agents
D. Public Function Test
 Nature of the function being performed – whether the party exercises powers
traditionally exclusively reserved for the state
o Case-by-case, fact sensitive determination to determine if the action is a “quintessential
government function/activity”
▪ Old question = are you standing in the shoes of government?
▪ Big question today = Can the conduct be *“fairly attributable to the government”*?
o The “mere receipt of” government money does NOT make a private actor a state actor
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Even if it is a substantial amount (tell me more)
o The “mere receipt of” a license or permit does NOT make a private actor a state actor
▪ Being regulated by the government is not enough
o Examples: Primary elections, Restrictive Covenant Enforcement, Preemptory Challenge,
Testator, Prisons R US, NCAA
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13th & 14th Amendments and Abrogation
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Congress can abrogate a State’s sovereign immunity, thus subjecting the state to a private cause of
action
§5 14th Amendment
o Gives Congress the power to pass Remedial legislation, NOT Substantive
▪ Congress has the power to enforce or remedy, but they do NOT get to define fundamental
rights/constitutional guarantees
o The Legislation must be Congruent and Proportional
▪ Congruent: a problem that actually exists and needs to be cured
 Congress needs to prove a history of state action designed to create a constitutional
problem
▪ Proportional: the remedy proposed needs to be constitutional
 Is it possible for the State to violate the constitution in the typical course of events of
those actions Congress is addressing?
 The abrogation needs to be consistent with the standard of review
 RBR → NO
 Heightened → YES
o Can restrict the free exercise of religion IF there is a “Neutral Law of General Applicability” in
place
▪ This creates the “Belief-Conduct Dichotomy” → meaning you can believe it, but you can’t do
it (peyote/polygamy)
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13 Amendment §2
o Congress has the remedial power to enforce constitutional guarantees
o Congress can prohibit action that relates to Slavery, Involuntary Servitude, and Badges or
Incidents of Slavery
▪ i.e. private housing sellers, private schools, private employers, contracting, buying property
o does NOT require a state actor
1st Amendment Outline
Free Speech
“Congress shall make no laws ... abridging the freedom of speech, or of the press; or the right of the
people to peaceably assemble, and to petition the Government for redress of grievances.”
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Freedom of Speech is a fundamental right, but is not absolute
o Protected speech
▪ We want to prevent a Chilling Effect on protected speech
▪ Can be Regulated, have to do so carefully
o Unprotected speech
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1st Amendment has been incorporated by the 14th and thus applies to the States (Gitlow v. NY)
o There is a State actor requirement – “Congress shall make no...”
Important distinction between speech and conduct
Regulating speech based on Content (subject matter) is different than regulating based on Viewpoint
Checking value of the 1st Amendment holds government more accountable
So when can Government place limits on speech?
 Clear and Present Danger Test (Old Test)
o “The question in every case is whether the words used are used in such circumstances and are of
such a nature as to create a clear and present danger that they will bring about the substantive
evils that Congress has a right to prevent. It is a question of proximity and degree.” (Schneck v.
U.S.)
▪ Clear to Who? Present in what respect?
o “The substantive evil must be extremely serious and the degree of imminence extremely high
before utterances can be punished.” (Bridges v. California)
o But, if “such utterances, by their very nature, involve danger to the public peace and to the security
of the State” then the speaker can be punished even if it doesn’t create a clear and present danger
(Gitlow v. NY)
o “In each case courts must ask whether the gravity of the evil, discounted by its improbability,
justifies such invasion of free speech as is necessary to avoid the danger.” (Dennis v. U.S.)
▪ Communism is so evil that you have to discount the unlikelihood of it taking hold in the U.S.
and punish their advocacy of communism
▪ This variation of the test provides no protection for unpopular speech... wow
 Brandenburg Test (Test used today)
o 2 Part Test – Can go after a speaker for their protected speech IF:
A. it is directed at “inciting imminent lawless action” AND
B. it is likely to happen
o Similar to clear and present danger test, but more respectable
▪ DO NOT USE the “Clear and Present Danger Test”
o Cohen v. California – “Fuck the Draft” shirt in court
▪ Women and Children in the courtroom are NOT a Captive Audience
 They can “avert their eyes”
 Captive Audience: Group that is present by virtue of government requiring them to be there
▪ Even offensive speech is protected by the 1st Amendment
 “Fuck the Draft” is an opinion
 Why are certain categories of speech Unprotected?
o No value to the words – They do not help with the exchange of ideas, particularly when in the
pursuit of truth
▪ “Marketplace of ideas”
 Counter speech you disagree with by using more speech
o Creates a harm as soon as the words are spoken
o 3 Traditional Categories of unprotected speech:
1) Fighting Words
2) Defamation
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3) Obscenity
Fighting Words
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Chaplinsky v. State of New Hampshire
Jehovah’s Witness, was convicted of disturbing the peace for yelling at a local sheriff, “You are a
God damned racketeer” and “a damned Fascist”
o Fighting Words Defined
▪ “Personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of
common knowledge, inherently likely to provoke violent reaction.” (Cohen v. California)
Can you call a Cop an “asshole”? (Bufkins v. City of Omaha)
o Police officers are not an “ordinary citizen” → so yes
Can you flip a Cop off?
o Yes → this is an expression
▪ If you’re arrested for doing so, sue the cop personally, he will lose his qualified immunity
Disturbing the Peace Statute in Arkansas
o What if it is only speech? (NOT conduct)
▪ AR Supreme Court placed a limiting construction on it to only apply to fighting words
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Defamation
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Defamation: False Statement of Fact
o Distinction between Facts and Opinions
▪ Ex A: “yesterday at 12PM, Billy did it in the courtyard with a goat” – purports to be a fact
▪ Ex B: “well Billy, is the kind of guy that would probably like to do it with a goat.” – opinion
o Truth is a defense
New York Times Rule
o To sue for the statements about a Public Official while speaking on a Matter of Public Concern, the
speaker must have Actual Malice (New York Times v. Sullivan)
▪ Public officials have a platform for self-help – mistakes are inevitable – avoid the chilling effect
▪ Actual Malice: actual knowledge that the statement is false, OR the speaker had reckless
disregard of the statement’s truth or falsity
 To establish a reckless disregard for the truthfulness of a statement, the Π must prove that
∆ entertained serious doubts about its truthfulness
 Mere failure to check for facts is insufficient
▪ Public Officials – not all public employees are public officials
 Someone who has, or appears to have, substantial responsibility for or control over the
conduct of government affairs.
o Also applies to Public Figures – (Gertz v. Robert Welch)
▪ Person who occupies a position of persuasive power and influence in society; OR one who
thrust themselves to the forefront of particular public controversies in order to influence a
resolution
▪ Can have Voluntary and Involuntary Public Figures
 Even if you’re an Involuntary Public Figure, actual malice is still required (Time, Inc. v. Hill)
o Matter of public interest or concerns = Matter of legitimate new interest
What about private defamation?
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States can regulate and are free to have their own standards, UNLESS:
A. They create Liability without Fault; OR
B. Allow Punitive Damages
▪ If a State uses either they must require Actual Malice
o State doesn’t have to make a defamation statute, but if they do they need to follow the rules
Lies
o Court is very reluctant to create new categories of unprotected speech
▪ Especially when corrective measures are available
o A statute criminalizing speech merely because it is false is a Content based Regulation
o Speech is NOT unprotected merely because it is false
▪ Exceptions are based on the harm that occurs as a result of the Lie PLUS something else
o Stolen Valor Act – (U.S. Alverez)
▪ This is a content based regulation, thus it is subject to traditional strict scrutiny
▪ Not narrowly tailored enough
o Disclaimer or asterisk of an ad means that it’s not an assertion of fact
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Obscenity
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Roth v. U.S. & Alberts v. California
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Memoirs v. AG of Massachusetts
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Utterly without redeeming social value
Ginzburg v. U.S.
“Sorted business of Pandering” → Commercial exploitation of the material
▪ Thus no redeeming social value cause he’s only in it for money
Mishkin v. NY & Redrup v. NY
o Basically, there is no consensus on what the “average person” standard is
▪ Everything was going to be up to the Supreme Court (“Redrupping”)
▪ “I Can’t define it but I know it when I see it”
The Miller Test – *Current Test*
o Obscenity Defined by the Court: “A state offense must also be limited to works, which taken as a
whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive
way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific
value.” (Miller v. California)
o 3 Part Test for the trier of fact
1) Whether the average person applying contemporary community standards would find that the
work taken as a whole appeals to prurient interest
2) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law
3) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value
 Sex and Nudity are not necessarily synonymous with obscenity
o Qualifier of Miller = Appellate courts can correct any issues with sensitive questions of fact
▪ If state statutes do what SCOTUS is saying, Appellate courts will protect 1st amendment values
 But see Jenkins v. Georgia – GA got it wrong
o Important Footnote in Miller
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Appeal to prurient interest – Average person – Dominant theme of material
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Descriptions or Depictions = Speech
 NOT Public Conduct – a video is a depiction
o Miller Test for Obscenity Simplified
▪ The average person, applying contemporary community standards, must find that the material,
taken as a whole:
a) Appeals to the “prurient interest”; AND
b) Depicts sexual conduct in a patently offensive way; AND
c) Lacks serious literary, artistic, political, or scientific value
Stanley Defense (Stanley v. Georgia)
o Private Possession of obscene material for use and enjoyment in your own home is Protected
▪ But, the sale, distribution, and exhibition of obscene material can be prohibited
Engaging in the commercial exploitation of obscene material is deferential to a legitimate state
interest in regulating the speech (Paris Adult Theatre v. Slaton)
o Legitimate state interest = Rational Basis language
Content based regulation of Offensive Speech is Protected speech → you can avert your eyes
Zoning Regulations (City of Renton v. Playtime Theatres)
o Allows cities to draw narrow zoning ordinances that restrict the location of explicit adult material,
meaning that it is not obscene and thus is protected material, if trying to limit secondary effects
▪ CANNOT altogether ban establishments with explicit adult material
o Secondary Effects Doctrine
▪ Material is protected but it generates secondary effects
 Concentrated Zoning requirements makes it easier to police the secondary effects
▪ Consenting adults should have access to constitutionally protected material
Pornography
o Sexually explicit material – it is protected
o Regulations based on Viewpoint are not likely to survive
▪ Preferred viewpoint based restrictions are subject to Strict Scrutiny
 i.e. women protected but not men (American Booksellers v. Hudnut)
o Military’s access to pornographic magazines is more deferential to regulations (PMG International
v. Rumsfeld)
▪ The military is making decisions about what effects the morale of the troops
 They have expertise so the courts are deferential to their decisions
Child Pornography
o Unprotected (NY v. Ferber)
▪ Obscenity has nothing to do with the rationale for making it unprotected
 It’s all about protecting children
▪ State has to carefully define what they are prohibiting
 Description or Depiction of a minor engaged in sexual activity
 We don’t want to criminalize family photos of nude children
o CANNOT use for your own private use and enjoyment (Osborne v. Ohio)
▪ NO Stanley defense
▪ Want to eliminate the incentive for its existence
o Simulated virtual child pornography may NOT be banned. (Ashcroft v. Free Speech Coalition)
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▪
Not a real live kid, thus the rationale for making it unprotected doesn’t apply
 Same applies for actors who are portrayed as minors but are actually adults
Broadcasting & The Media
 Speech that is Protected but is Indecent
o The way speech is transmitted matters when determining if regulations are okay
 Radio
o Highly regulated → License is required to run radio broadcasting (Red Lion Broadcasting v. FCC)
▪ The License is a privilege not a right
▪ Need to protect the limited spectrum available
o Indecent speech over the radio (FCC v. Pacifica → Holding is limited to “over the air” Radio/TV)
▪ Broadcasters may be sanctioned for airing “patently offensive sexual and excretory speech,”
even if it does not qualify as obscene under the miller test
▪ As a condition of the license, the FCC is permitted to impose the safe harbor regulation
 Regulating indecent speech during certain hours – not prohibiting
 Protecting children that may be listening to “over the air” broadcasting
 Not Prohibiting – it is available to a willing and appropriate audience
 TV
o Cable/satellite doesn’t pose the same limited spectrum transmission problem
▪ Paid for service with tons of channels that you opt into
o Content-based regulations of cable broadcasts need to be narrowly tailored (U.S. v. Playboy)
▪ FCC wanted to impose an obligation on the cable company to block the signal
▪ Assuming the content is protected speech, we have a willing and appropriate audience
▪ There are other ways to protect the kids – parental controls can shield them
 Not all TV/Radio stations are the same
o The way it is transmitted and accessed is important
▪ Over the Air vs. Paid For
 “Over the air” broadcasting is:
 Uniquely accessible to children, intrusive, and has a pervasive presence
 Paid For listeners are a willing and appropriate adult audience
 Newspaper (Miami Herald v. Tornillo)
o Not a limited spectrum → anyone can start a newspaper
o Strict Scrutiny
 Internet
o Poses significant regulatory problems
▪ Not a limited spectrum → easily accessible – anyone can start a website
▪ World-wide-web – not just U.S.
o If Federal dollars are being used to fund internet access, then government is allowed to limit what
content is available for viewing (U.S. v. American Library Association)
▪ The condition must be specified in advance
Hate Speech
 Statutes designed to punish only fighting words that express certain viewpoints are unconstitutional
o No Hate Speech statute has survived
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Spring 2018

R.A.V. v. City of St. Paul
Charged with a “Bias-Motivated” criminal statute for burning a cross in black family’s yard
MN Supremes tried to place a limiting construction on the statute to only apply to fighting words
▪ Fighting words doctrine already protects everybody regardless of their identity
▪ A prohibition on hateful speech that is directed to a minority group is a viewpoint based
regulation, which is a not oaky
 Regulations need to be Content Neutral
 Regulations that are Content Based will be subject to Strict Scrutiny
Hateful protected speech is still protected speech (Snyder v. Phelps)
o Still need to obey applicable public assembly laws
Hateful motivated conduct CAN result in a sentencing enhancement (Wisconsin v. Mitchell)
o CANNOT increase punishment merely for a ∆’s abstract beliefs
▪ Their Motive or Mental State is part of the required elements of the substantive offense
Disparaging Trademarks (Matal v. Tam)
o Not allowed to prevent trademark registration because it might be offensive
▪ Entirely Subjective decision & it’s Viewpoint based
o
o



Threats
 Threats are speech, so what’s not protected?
 True Threat Doctrine (Virginia v. Black)
o *New category of unprotected speech*
▪ Harm is immediate, not curable with more speech, no redeeming value, doesn’t help in pursuit
of truth
o True Threat: “Serious expression of intent to commit an unlawful act of violence against a
particular person or group”
▪ Speaker does NOT have to actually intend to carry out the threat
▪ Protects individuals from fear of violence
 Problems with the True Threat Doctrine:
o From whose perspective do we consider if it’s a true threat, the victim or speaker? (Doe v. Pulaski)
▪ Killenbro thinks (and I agree) the definition in Virginia v. Black reads to say that it is from the
speaker’s perspective, but it’s uncertain
▪ Dinwiddie inquiry – 5 Factors to consider the Totality of The Circumstances – 8th Cir. Only
1) Reaction of those who heard the threat
2) Whether the threat was conditional
3) Whether it was communicated directly to the object of the threat
4) Whether the speaker had a history of making threats against the person
5) Whether the recipient had reason to believe that the speaker had a propensity to engage in
violence
Aiding the Enemy
 Holder v. Humanitarian Law Project
o “Material support” as defined in the California statute does not impose any speech issues
o Court declined to create a new category of unprotected speech
Public Employee Speech
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Spring 2018



Public employees retain their 1st Amendment rights
o Permitted to speak in your capacity as a private citizen on matters of public concern (Pickering)
▪ Public concern = matters of legitimate new interest
o Have to Balance the employee’s interest in making the speech against the interest of the State in
promoting efficiency of the public services it performs
▪ The Nature of the employee’s work is important in determining the weight of the State’s
interest (Rankin v. McPherson)
 Low level clerical worker’s statement doesn’t have as much weight as higher officer
Employee punished for engaging in protected speech (Mt. Healthy v. Doyle)
o Mt. Healthy Test – used to determine if the employee’s 1st amendment rights were violated:
▪ Step 1: Did the employee engage in protected speech (i.e. speak about a matter of public
concern) and was that a substantial or motivating factor in what happened to them? If so,
▪ Step 2: the Burden shifts to the employer to show by a preponderance of the evidence that it
would have done the same thing even in the absence of the protected conduct.
▪ Doesn’t matter where or when the employee makes the statement (Givhan v. Western Line)
 Doesn’t require that the employee speak publicly
o The speech really needs to be on a matter of public concern, NOT an individual employee
grievance concerning internal office policy (Connick v. Myers)
Whistleblower Employee
o Exposing matters of public concern, BUT they’re not speaking in within their capacity as a private
citizen (Garcetti v. Ceballos)
▪ Thus they’re not protected
▪ Need to be speaking as a Private Citizen, NOT pursuant to your official duties
Government as a Speaker
 The 1st amendment protects the right of citizens to speak from government interference
o When Government itself speaks, it is NOT constrained by the Free Speech Clause of the First
Amendment (AETN v. Forbes)
▪ Government speech does NOT have to be viewpoint neutral
 Monument on Public Property (Pleasant Grove City v. Summum)
o Government is the speaker
▪ Even if the monument is privately donated
 The message conveyed is not necessarily that of the donor
▪ Government may speak as it wishes
 Under the Free Speech Clause, government does NOT have to display a permanent
monument with a message it disagrees with
 License Plates
o Disagreement about viewpoint and subjective judgements
o A license plate is government property, thus it is government speech
▪ Government can regulate what goes on it
 Funding Private Messages
o IF government chooses to fund private messages, it generally must do so on a Viewpoint Neutral
basis (see infra Rosenberger v. Rector)
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Spring 2018
IF providing funds, government CAN limit the scope of the speech to fit within the spending
program (Rust v. Sullivan)
▪ BUT CANNOT impose conditions upon the funds that are outside of the scope of the program
o Government not paying for your speech is NOT equal to government regulating or prohibiting
your speech (National Endowment for the Arts v. Finley)
o
K-12 Students
 Children have constitutional rights, but their rights are NOT “coextensive with those of adults”
 Schools are supposed to be a place for learning
o Children in school = Captive Audience
 Students and teachers do not "shed their constitutional rights to freedom of speech or expression at
the schoolhouse gate” (Tinker v. Des Moines)
o The school has an interest to structure the educational environment to prevent disturbances
o BUT the school CANNOT prohibit silent, passive, and non-disruptive expressions of opinion that do
not “materially and substantially interfere” with the operation of the school
▪ No Hecklers Veto – People who don’t like the speech are not allowed to control the speech
environment
o Symbolic Speech needs to be through a means of communication that is likely to be understood
 Educators have discretion to exercise educational control of student speech “in school-sponsored
activities so long as their actions are reasonably related to legitimate pedagogical concerns.”
(Hazelwood School District v. Kuhlmeier)
o School newspaper is part of the curriculum and the school is the publisher, so the school has some
ability to regulate, but it has to be exercising its educational judgement (not covering its ass)
 School can punish students for speech that is Disruptive i.e. lewd, sexual innuendo, inappropriate for a
captive audience. (Bethel Sch. Dist. v. Fraser)
 If a school, using Reasonable Judgement, determines that student speech is advocating for illegal drug
use then the school gets a Deferential Review when deciding to prohibit the speech (Morse v.
Frederick)
o The authority of educators extends beyond the campus and formal school day – but how far?
 Electronic Communications – Social Media
o For the school to regulate electronic communications, they need to be using their educational
judgement and the regulations need to be Consistent
o To regulate off campus and outside of school hours, the speech may need to be harassing
▪ Very fact sensitive – new cases are all over the place
Time, Place, and Manner


Protected speech can be subject to Time, Place, and Manner regulations
o When and Where the speech takes place, and How the speech is transmitted
▪ Special emphasis on where → see the forum doctrines
Permit schemes CANNOT grant the government administrator absolute or unfettered discretion
o The decision maker’s decision needs to be guided so that the decision is regulating for the public
interest (public health, welfare, and safety)
o Regulatory power may NOT be exercised to suppress speech they don’t like
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Spring 2018

Ordinances must regulate for the public interest AND cannot suppress speech just because the
government disagrees with it
o Facially Invalid – No conceivable circumstances that its constitutional
 *Ward Test* DEFAULT RULE for Valid TPM Regulations on Speech – 3 Requirements
1) Content Neutral
▪ Regulations can be content based, BUT then its subject to Traditional Strict Scrutiny
 Compelling Government Interest
 Narrowly Tailored – Least Restrictive Means
2) Narrowly Tailored to serve the government’s Significant Interest
▪ BUT it does NOT need to be the least restrictive means of doing so
▪ “Rather, the requirement of narrow tailoring is satisfied so long as the regulation promotes a
substantial government interest that would be achieved less effectively absent the regulation”
3) Leave open Ample Alternative Channels of Communication
▪ Has no effect on the quantity or content of the expression
▪ You get the opportunity to speak, but you may not get your preferred TPM
 *O’Brien Test* –Determine the validity of a regulation on something Other Than Speech (conduct)
1) Must be Within the Government’s Power
2) Regulation must further an Important or Substantial Interest
3) Government interest must be Unrelated to the Suppression of Free Expression
4) Incidental Restriction on Speech is No Greater than is Essential to the Furtherance of the Interest
 Know the 2 Test and when to use them!
 Crafting good TPM Regulations: (Thomas v. Chicago Park District)
o Need sufficient detail to inform the decision maker on how to make the decisions, and inform the
applicant/speaker to know what is required of them
▪ Do NOT vest too much unfettered discretion with the decision maker, it will be Facially Invalid
o Want a measure that you’re confident is going to be used in ALL circumstances
▪ Post-hoc justifications are not going to justify otherwise
 Censor Rule: 3 steps (Freedman v. Maryland)
1) Burden is on the Censor/Regulator to prove that the speech is unprotected, NOT the speaker.
2) Any restraint prior to judicial review can only be imposed for a specified brief period of time AND
only for the purpose of preserving the status quo
3) A prompt independent final judicial determination must be assured
o Censorship is disfavored
Forum analysis
 Types of forums – going to argue with government about which has been created
1) Traditional Public Forum – Places where, historically, people could meet and exchange ideas i.e.
streets, parks, sidewalks
▪ Always open for speech – Speech can be formal or informal
 Assumption is that this is where speech is going to take place
▪ Apply Ward Test
▪ Not all streets, parks, and sidewalks are created equally
 May have different purposes
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Spring 2018
 There is a greater role for regulation when solicitors impede the normal flow of traffic and
2)
3)
4)
5)
are intrusive in a face-to-face setting (U.S. v. Kokinda)
Dedicated Public Forum – Government creates or designates space and opens it up for speech
▪ Something other than streets, parks, and sidewalks
▪ Government is not under any obligation to create or maintain these forums and can get rid of
them at any time
▪ Apply Ward Test
▪ Government property with advertisements = speech
Limited Purpose Public Forum – Public property open for speech but has content based regulation
▪ Regulating subject matter - CANNOT regulate the viewpoint
▪ Apply Traditional Strict Scrutiny – compelling interest and narrowly tailored/least restrictive
▪ Ex: K-12 school system is under no obligation to open classrooms for other use after hours. If
school opens to public, it may prohibit political speech if it passes strict scrutiny
▪ Ex: Preventing for profit organizations is a content based organization
Public But Not Dedicated Forum – Government property that is reserved for the purposes for
which it was created
▪ Government is under no obligation to allow speech
▪ Regulation need only be Reasonable – easy burden for government to bear
 Cannot be administered in a viewpoint biased way
▪ Ex: U of A was created for the purpose of educating. It is under no obligation to allow speech to
take place on its premises.
Private Forum: Protected by the First Amendment
▪ Assumption is you can do what you want, few limitations
▪ Needs to be truly private
▪ Ex: can have a club that meets in your apartment and the state cannot dictate who belongs to
your club
Coerced Expression – Compelled Speech Doctrine
 1st Amendment protects your freedom not to speak (West Virginia v. Barnette)
o Not an absolute rule → Speaking in court
o Not all pledges are created equally (Brinsdon v. McAllen ISD)
▪ Can force a kid to recite the Mexican pledge for class, because it is part of the curriculum
 Regulation of Association
o Government CANNOT compel private organizers of a parade to include a group that has a message
with which the organizers disagree with (Hurley v. GLIB)
o Right of Private Expressive Association – to use the 1st Amendment as a shield, Private Groups
must be Truly Private and have a Common Expressive Purpose
▪ Government Cannot compel a private group to speak in ways inconsistent with who/what it is
 Public Accommodation laws cannot bleed over to force association
 Compelled Financial Support
o Can be compelled to support a group with respect to your employment, i.e. unions (Abood v.
Detroit Bd. Of Educ.)
▪ BUT you CANNOT be forced to fund political speech by that group
▪ Unions for public employees is different than unions for private employees
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Spring 2018
 Public sector union’s job is to lobby the government
Public universities may charge students an activity fee to fund a program to facilitate
extracurricular speech if the program is viewpoint neutral (University of Wisconsin v.
Southworth)
▪ Money is given to facilitate the students' exchange of expression and ideas
 Part of the educational environment
Symbolic Speech
o Expressive Conduct – Symbolic Expression
▪ Has to convey a message that is capable of being understood
o If regulating conduct, it needs to be administered in a Viewpoint Neutral manner
▪ Does Government have an interest
K-12 School Dress Codes
o Uniformity can be beneficial to learning, thus a dress code promotes the educational process
▪ Courts are deferential to school authority when making decisions for pedagogical concerns
o T-shirts may be expressing a viewpoint – can the school ban viewpoints?
▪ Tinker was a non-disruptive symbolic expression likely to be understood and the school
district allowed people to wear other symbols
▪ If the school is going to regulate it needs to do so evenhandedly
 Don’t allow any T-shirts with a message on it (hard to enforce)
 Can’t be too vague
▪ Ex: Can school prevent students from wearing the confederate flag?
 Tell me more – if there has been a history of violence associated with the symbol in that
school or city, then yes they can prevent it
▪ Further away from K-12 the more difficult it is to justify enforcement, but it could even be
done at the law school if done for the proper reasons and is implemented in an appropriate
way (consistently implemented and enforced)
o


Privacy or Anonymity
 Privacy = Fundamental Right
o 2 Aspects
1) Make important personal decisions
2) Shielded from disclosure
o Involuntary Public Figures on Matters of public interest/concern (Time v. Hill)
▪ Lost their right to privacy
 Media and Obtaining Private Information
o 1st Amendment shields the media from liability for the publication of private information that is
Truthful and Lawfully Obtained (Florida Star v. BJF)
▪ Crime is a matter of Public Interest
 If you commit a crime, your info can be published (Paul v. Davis)
 Authors are generally free to decide to be anonymous (McIntyre v. Ohio Elections Commission)
o Especially on matter relating to political expression
 Generally, information that is disclosed in open court may be reported on by the media
o There are statutory exceptions creating shield laws to protect children or victims of certain crimes
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Spring 2018
Commercial Speech
 Regulation of speech that is part of a commercial transaction – Advertising
o Used to be unprotected speech
 *Central Hudson 4 Part Test* Current Standard – type of intermediate scrutiny
1) Commercial speech must Concern Lawful Activity and be neither False nor Misleading; and
▪ Speech that is fraudulent or proposes an illegal activity may be prohibited
2) Government must have a Substantial Interest; and
3) The regulation must Directly Advance the asserted interest; and
▪ Special Emphasis on this part
▪ Government is going to have to show that the regulation actually prevents X
 Speculation is NOT enough (Florida Bar v. Went For It Inc.)
4) The regulation must be Narrowly Tailored to serve that interest
▪ Does NOT require the Least Restrictive Means available, only needs to be a Reasonable Fit
Flag Burning
 Factual context and circumstances are important (Spence v. State of Washington)
o Private flag, displayed on private property, passive non-disruptive, symbolic expression, easily
understood, etc.
o Improper Use Statute vs. Desecration Statute
▪ One is conduct the other is expression – Spence was charged with the improper use
▪ If a desecration statute is based on viewpoint, it is unconstitutional (Texas v. Johnson)
 Ex: “Intentionally or knowingly desecrates a state or national flag by defacing damaging or
otherwise physically mistreating the flag in a way that the actor knows will seriously offend
one or more persons likely to observe or discover the action” – this is viewpoint
Symbolic Speech: Nude Dancing
 Dancing itself is speech and thus protected (Barnes v. Glen Theatre)
o BUT in terms of Nude Dancing, government has a substantial interest in protecting societal order
and morality. So using its police powers, government can regulate public nudity, which is conduct.
▪ The state wanted to prevent public nudity, regardless of whether or not the nudity is combined
with expressive activity, thus it is only a regulation on conduct
 Apply O’Brien Test
 Need to know what government is banning and why
o If banning nudity because it conveys a message → Viewpoint
o If banning nudity for public health → Conduct
 If government is going to regulate nudity, then it needs to be done for conduct reasons and done so
evenhandedly
Freedom of Religion
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof...”


Establishment Clause → Absolute
Free Exercise Clause → “by its very nature cannot be”
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Spring 2018
Defining Religion:
 Contentious objectors exemption from the draft was created to respect the free exercise clause
o Government had to have a way of determining who qualified, without respecting some religions
over others – so we get a definition of religion
▪ “A sincere and meaningful belief which occupies in the life of its possessor a place parallel to
that filled by the god of those admittedly qualifying for the exemption comes within the
statutory definition” (U.S. v. Seeger)
 Sincerity can be tested BUT NOT Legitimacy → No heresy trials
▪ Marijuana church? Used a laundry list of factors to determine if it is a religion (U.S. v. Meyers)
 Ultimate ideas; metaphysical beliefs; moral and ethical system; comprehensive beliefs;
symbols; ceremonies; etc.
Establishment Clause




“Wall of separation between church and state” (Everson v. Board of Education)
o Government is NOT allowed to:
1) Establish a church
2) Pass laws that aid any religion
3) Force someone to attend or avoid church, or to profess a belief or disbelief in any religion
4) Punish people for expressing religious beliefs or disbeliefs
5) Tax, large or small, to support religion
6) Participate in the affairs of any religious groups or vice versa
o So why did the New Jersey law providing public transportation for kids to private school get
upheld?
▪ It was a Neutral Law of General Applicability designed to benefit an educational purpose
 School CANNOT be for profit and it must be accredited by the state
 The incidental benefit to catholic families is NOT dispositive
CANNOT give religious instruction at public schools – This would be aiding the establishment of
religious beliefs (McCollum v. Board)
o BUT the state can release students from school to attend religious instruction that is outside of
school while keeping the others in school (Zorach v. Clauson)
▪ Early release is viewed as an accommodation of individual religious preferences rather than
an aid to religion, because they don’t want to be hostile towards religion
Prayers or Scripture Readings at public school is NOT allowed (Engel v. Vitale)
o Even if the prayer is non-coercive, non-denominational, or non-proselytizing
▪ K-12 students at school are a Captive Audience
o Even tacit government support of religious beliefs raises the danger of eventual establishment of
state approved religious views
o Although reading religious scripture at school could have some educational value it would have to
pass the Purpose and Primary Effect Test (Abington Township v. Schempp)
1) What is the Purpose AND the Primary Effect?
2) IF it either Advances OR Inhibits religion, then it’s NOT allowed
Tax Exemptions on property taxes for religious institutions are permissible as long as the statute is for
a Neutral Purpose (Walz v. Tax Commision)
o Provide the tax exemption for a wide variety of nonprofit institutions
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Spring 2018
“for religious, educational, or charitable purposes” – socially valuable institutions
o Neither advancing nor inhibiting religion
o BUT tax exemptions that are only available for religious activities or organizations are NOT
allowed, because that is an endorsement of religion (Texas Monthly v. Bullock)
Textbook Loan Program (Board v. Allen)
o State is permitted to require school boards to loan books to students in public and private schools
▪ The program has an Educational Purpose and Primary Effect
▪ Can only loan books that are for secular studies
 Doesn’t necessarily rule out religious texts, but they have to be for the right purpose
Lemon Test – Government action that benefits religion is valid IF:
1) It has a Secular Purpose aka Neutral; AND
2) Its Principle or Primary Effect Neither Advances nor Inhibits Religion; and
3) It does NOT result in Government’s Excessive Entanglement with Religion
 #3 is NOT a dispositive issue! (Agostini v. Felton) #3 is now “folded into” the
Principle/Primary Effect prong. (only for purposes of providing aid to schools?)
 Want to ensure 2 things:
a) The aid does NOT result in religious indoctrination by the government ; AND
b) Government is NOT deciding who receives the aid with reference to religion
 Ex: Although aid programs to K-12 Private Schools for Instructional Equipment or Field
Trips could be Diverted for Religious Purposes the Government is permitted to provide
the aid as long as it is for a permissible purpose and Neutral (Mitchell v. Helms)
 Government reserves the right to check and ensure that the aid is being properly
used, which does NOT result in excessive entanglement
 NOT giving the private school money! – giving them equipment
 BUT wait... Vouchers are constitutional (Zelman v. Simmons-Harris)
 NOT government endorsing religion, private choice, school has to meet state
standards, NOT too concerned about monitoring
o Government is permitted to provide funding for buildings on private college campuses so long as
it passes the Lemon Test and is used only for nonreligious purposes
▪ No need to monitor for excessive government entanglement with college students
o Government CAN grant a tax deduction to ALL parents for their children's educational expenses,
regardless of whether their children attended public or private schools (Mueller v. Allen)
▪ What is the Principle or Primary Effect? → Advancing Education
 Secondary effect that may benefit a religious school is the product of private choice
▪ CANNOT grant the tax deductions only to parents of children in religious schools
o Educational Aid for Handicap Students in a private school is permitted (Zobrest v. Catalina
Foothills)
▪ Government programs that Neutrally provide benefits to a broad class of citizens defined
without reference to religion do NOT violate the establishment clause simply because religious
institutions may also benefit
 Having a government employed interpreter inside of a religious school is NOT Excessive
Entanglement because they are acting as a Neutral Conduit
o Rosenberger v. Rector – Hybrid Case
▪


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Spring 2018
University was denying funding to a Religious RSO Publication → NOT Allowed
 Speech: This is Viewpoint Discrimination
 Religion: Denying them funding would be Inhibiting Religion
 Public funds are not going directly to religion, the funds are flowing through the
university which is creating an educational environment, plus this is private speech
o Larkin v. Grendal’s Den Problem → Governmental decision making authority CANNOT be given to
Religious Actors (Kiryas Joel v. Rector)
▪ What if the State Legislature passes a facially neutral statute allowing religious group to create
their own school district? (Grumet v. Pataki)
 NOT allowed! → Obviously this is an effort to benefit religion
 Have to look closely at what’s going on – its only superficially neutral
Religion within Government?
o Historical Inquiry (Marsh v. Chambers)
▪ NOT dispositive, but a helpful consideration
▪ Audience is an important factor for this inquiry
 Captive Audience?
 Adults? Capable of making their own decisions, and not as impressionable as children
 Nature of the prayer? In Marsh is was non-denominational and non-proselytizing
 Prayer that reflects beliefs specific to only some creeds can be okay so long as the
practice over time is not “exploited to proselytize or advance any one, or to disparage
any other, faith or belief.”
 Chose the prayer leader because they do a “good job” and it was okay
 BUT discriminating against one religion because its bad is NOT okay (Snyder v. Murray)
▪ Practice of prayer that has been “long sanctioned by history” in order to lend gravity to the
occasion and reflect important historical values is okay (Town of Greece v. Galloway)
▪ Context is important
 City council meeting vs. school board meeting
o Ceremonial Deism → We invoke God in a variety of ways (i.e. Pledge, Money) but it’s not for
religious reasons – we don’t have a religious experience
▪ Not formally used by the court, but it is a possible tool in our toolbox
o Religious Holidays & Displays
▪ Context Inquiry: Displays by Government need to be in a Nonreligious Context
 i.e. Christmas as a Holiday NOT a “Holy Day” (Lynch v. Donnelly)
 Plastic Reindeer Test
 Secular Purpose that drives economic activity when you add Santa
 Nativity Scene inside a government building is NOT allowed (County of Allegheny v. ACLU)
 Menorah and Christmas tree outside is okay
 The overall context makes it clear that it’s a holiday and not a holy day
 10 Commandments → (Van Orden v. Perry & ACLU v. McCreary County Ky.)
 Displays on public property are NOT allowed IF it has a predominantly religious
purpose
 BUT IF it also has a secular moral message, and/or its context contains a historical and
social meaning, then it is permissible
▪

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 i.e. allow other displays to be included like Texas did
 Post-hoc corrections/justifications to secularize the display ARE NOT ALLOWED
 Very context dependent, case-by-case inquiry
 Look closely to see what is the city actually doing
 Private Funding of the display doesn’t really matter
Coercion is bad (Lee v. Weisman)
▪ Especially bad in the school setting
 Don’t have a prayer at a middle school graduation
 Doesn’t matter that they aren’t forced to attend (i.e. not a captive audience)
▪ Looking at context and audience
▪ Prayer at a high school football game? (Santa Fe ISD v. Doe)
 Have to pay close attention to the history and context to determine the purpose
 Where? Under whose authority? Captive Audience?
 NOT as concerned about adults, mostly K-12
 Needs to be purely private speech and a football game is NOT
 Some students are forced to be there
Endorsement Inquiry
o Lemon as modified by Endorsement – Is government endorsing the message?
▪ Focus is on government’s Intent
 What values is government trying to promote
▪ Very similar to the Purpose/Primary Effect Doctrine
o Measured from the perspective of an “Objective Observer” who is aware of the purpose, context,
and history of the policy behind the symbol
▪ They would know the type of forum, whether its public or private speech, etc.
Day of Rest?
o When evaluating constitutionality of OLD blue laws, you have to look at what the Present Purpose
for the law is, NOT the original intent
▪ i.e. Now it’s a day of rest, NOT for a religious purpose, thus okay (McGowan v. Maryland)
o Good Friday? Spring Holiday? Earth Day?
▪ Has to be set up properly to be constitutional (look at what Indiana did)
 Purpose has to be sincere and NOT a sham
o


Free Exercise Clause

Protects your religious beliefs, BUT NOT Conduct (Reynolds v. U.S.)
o Freedom to believe is absolute but the freedom to act is NOT
o Need a Neutral Law of General Applicability
24