CONSTITUTIONAL LAW II
PROFESSOR CHANEY
Revised Spring 2017 Semester in a
Nutshell
[Part I&II]
CIVIL LIBERTIES
STATE ACTION
Constitutional protections of individual liberties apply only to the government. The term “state
action” applies to federal state, and local government. The Constitution, however, does not
apply to private entities or actors.
There are two main exceptions to the state action doctrine.
1. “Public function exception,” where a private entity is performing a task that has been
traditionally, exclusively done by the government. (Seems to be more likely to be
applied where vital government services are involved or there are limited alternative
ways of obtaining the service)
2. The entanglement exception where the government has authorized, encouraged, or
facilitated the unconstitutional conduct (e.g. Shelly v. Kramer where gov’t authority
needed to enforce would-be unconstitutional action) or where gov’t actively or
significantly controlling the decisions and imposing gov’t type sanctions.
ELEVENTH AMENDMENT
The 11th Amendment restrictions on federal jurisdiction over suits against a state or its
instrumentalities entail more than what the language of the amendment would suggest.
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It bars private suits against non-consenting states. (Consent must be in the form of a clear and
express waiver.) It recognizes the state’s sovereign immunity except where the Constitution
provides otherwise and includes suits against suits brought in federal court without the consent of
the state.
In narrow exceptions, the Federal Government can:
(a) Abrogate the states immunity using the Section 5 of the 14th Amendment. However
congress must identify a pattern of violations of the Constitution by the States and the abrogation
must be a narrow tailored remedy.
(b) Apply the so called Ex Parte Young exception that allows personal suits against state
officers for injunctive relief and personal damages.
(c) States can waive their Eleventh Amendment immunity.
Generally speaking: The Eleventh Amendment prohibits federal courts from hearing a
private party’s claims against a state government, but actions can be brought against state
officers to enjoin future conduct that violates the U.S. Constitution or federal law.
RIGHT TO TRAVEL
That right to travel is not specifically found in the Bill of Rights. It, however, can be implied
from other rights and from the Privileges and Immunities, Art IV, section 2. See Saenz v. Roe.
That right to travel is not specifically found in the Bill of Rights. It, however, can be implied
from other rights and from the Privileges and Immunities, Art IV, section 2. See Saenz v. Roe.

The right to travel requires all citizens be free to travel throughout the length and breadth
of our land uninhibited by statutes, rules or regulations which unreasonably burden or
restrict the movement. The right to travel has three components:
(1) Right to enter and leave;
(2) Right to be treated as a welcome visitor;
(3) Right to be treated the other citizens of the state.

Often arises in contest of durational residential requirements for important state benefits
of privileges such as welfare eligibility.
Short durational periods (e.g.30 days) to prevent fraud or confusion constitutional;
however long durational periods generally insufficiently compelling to outweigh the
burden on travel.

The fundamental right to travel does not include the right to travel outside the country
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ACESS TO COURT
Right to Court Access raises these key points:


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The “right to be heard in court” is a fundamental right and an essential aspect of due
process, but you should consider the nature of the proceeding.
Discrimination among people is generally subject to strict scrutiny.
Requires appointment of an attorney in some cases where assistance essential to make
access meaningful in order secure fundamental rights, but not at all levels, e.g. appeals,
extraordinary writs.
RIGHT TO CONTROL PERSONAL INFORMATION
The Court recognized and described the zones of privacy at issue in personal information
collection as follows:
(1) Individual interest in avoiding disclosure,
(2) Individual interest in making certain decisions.
However, unless there is a sufficiently grievous threat to (1) or (2), the gov’t has broad latitude
in experimenting with possible solutions to problem of vital local concerns. Strict scrutiny will
apply if the threat to the rights are sufficiently grievous.
FIRST AMENDMENT FREEDOM OF SPEECH
The 1st Amendment to the United States Constitution states that Congress shall make no law
abridging the freedom of speech. Although the right to free speech is guaranteed, it is not
absolute. Congress retains the right to regulate certain less protected or unprotected areas of
speech, as well as certain non-verbal conduct, without offending the 1st Amendment.
Protections are imputed to the states via the Due Process Clause of the 14th Amendment. Courts
may also rely on independent authority of the First Amendment in reviewing federal action.
I.
The First Amendment text:
 Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition the
government for a redress of grievances.
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II.
Definitions
Speech may be a symbol, action, or inaction intend to communicate a message and would
reasonable listener likely understand the conduct as communicating a message. Speech,
giving rise to 1st Amend protection may be real or symbolic as long as it communicates a
message. It is a fundamental right that triggers strict scrutiny when it is unduly burdened.
 Speech that is entitled to strict scrutiny review
 Oral expression – pure speech
 Gestures
 Epithets
 Light show/ laser show
 Music
 Silence to make a point
 Maintaining anonymity to prevent chilling effect on speech
 Expenditure (or refusal of expenditure) of funds on political or other viewpoints
 Expressive Association, where association is manifestation of goal/idea
 Advertisement
 Press
 Religion
 Maintaining anonymity of members of expressive association
 Speech that is less protected because gov’t primarily restricting non-speech component
 Expressive Conduct & Content Neutral
 Sexual Oriented themes
 Secondary effects
 Commercial Speech
 Gov’t Employees while on job or part of duties
 Non-Speech (things often deemed non-speech)
 Non-expressive conduct
 Criminal Acts
 Threats of imminent violence or criminal acts
 Obscenity (Justice Alioto)
 Fraudulent speech that injures (Defrauding, lying, stealing and cheating)
 Imminent impairment of some other constitutional right (Per Justice Kennedy)
 Defamation
 Fighting Words
 Creating Hostile audiences
 Gov’t Speech
 Gov’t Selection
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A SIMPLIFIED FIRST AMENDMENT ANALYSIS
(Not in any particular order)
I.
CONSIDER WHETHER PLACE IS A FORUM OPEN TO FREE SPEECH.
II.
CONSIDER WHETHER A PROTECTED MESSAGE IS DELIVERED
AND RECEIVED.
III.
CONSIDER WHETHER THE GOVERNMENT ACTION UNDULY
BURDENS THE MESSAGE BY TARGING THE MESSAGE OR BY
HAVING ONLY AN INCIDENTAL AND INSIGNIFICANT EFFECT ON
DELIVERING THE MESSAGE.
Significant burden that is either targets message
or has a significant effect even though the
government action predominantly targets
something else such as conduct or secondary
effects. (Note if governing statute too vague or
overly broad may be void and may not be used
as source of gov’t authority to act.)
IV.
EVALUATE THE GOVERNMENT’S JUSTIFICATION BY APPLYING
THE APPROPRIATE LEVEL OF JUDICIAL SCRUTINY TO DETERMINE
THE CONSTITUTIONALITY OF THE GOVERNMENT ACTION
If gov’t action targets message (or viewpoint in a
closed forum), justification needs to be
compelling (strict scrutiny test); if the action
targets something else or involves commercial
speech, justification needs to be
important/substantial (intermediate scrutiny).
Justification needs only be rational in non-public
forum or involves unprotected speech unless
targets viewpoint.
Public Forum Traditionally Open for Speech
Designated Open Forum limited to speech
compatible to operations of public property
Public Forum Not Open for Speech
Private Forum
A protected message that is sent in any form that
is intended as a message and understood to be a
message. Excludes unprotected messages such as
obscenity, fighting words, incitement to crime or
violence, etc.
First Amendment Issues in a Nutshell
1. Consider the nature of the Forum – (Note the Effects on First Amendment
Protection of Free speech) --Make sure you consider whether content neutral or content
based restrictions in all forums.
Public Forums - Gov’t property that is traditionally or historically available for speech:
 If Content Based – based on viewpoint or subject matter.
Strict Scrutiny applies -- Regulation must be necessary to achieve a compelling state
interest and narrowly tailored to that end but need not employ the least restrictive
means necessary, but it must burden the minimal amount of speech. (Mosely)
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 If Content Neutral – not regulating based on viewpoint or on subject matter.
Intermediate scrutiny applies – regulation must be narrowly tailored to achieve an
important gov’t interest and must leave alternative channels of communication
open (Hill v. CO)
Designated/Limited Public Forums -- Gov’t property that not traditionally open for
speech but the gov’t affirmatively and voluntarily opens to speech
i)
Same analysis as public forums if fully open
ii)
If limited to speech compatible with operation, may restrict
non-compatible speech on content basis so long as
viewpoint neutral.
Non-Public Forums – Gov’t property that is not suitable for public speech (Airports,
Sidewalks outside of Post offices)
 Gov’t properties that the gov’t can close to all speech activity
 Regulations must be reasonable and viewpoint neutral.
 Regulation based on subject matter may be okay in Nonpublic Forum, especially
an authoritarian forum
(Authoritarian Forum) (Special Non Public Forums like prisons, military
instillations, schools – deference given to the authorities as to what speech is
compatible to the operations of the forum)
 Reasonableness Standard, e.g.:
 Military bases – Regulation need be reasonably related to legitimate
military interest Schools- Regulation need be reasonably related to
legitimate pedagogical interest.
 Prisons- Regulation need be reasonably related to legitimate penalogical
interest (Thornburgh- Incoming Mail can be regulated, Procunieroutgoing mail restricting airing grievances unconstitutional)
 Schools- Regulation need be reasonably related to legitimate pedagogical
interest (Tinker- Arm Bands UC, Bethel- Campaign Speech C)
 Public Employees – No First Amendment rights while on job or part of
duties unless matter of public concern and even then can be disciplined or
fired if gov’t can show efficiency of office justifies the action. (Garcetti v.
Ceballos, 1610 [1596].
2. Identify the regulation or gov’t action that is at issue.
Mention the regulation in question and how it potentially affects speech -- Speech is
affected if the regulation significantly forbids, chills, minimizes, restricts, or compels
speech. Content-based restrictions that significantly affect speech are subject to strict
scrutiny review. Content-neutral restrictions are subject to intermediate scrutiny.
3. Consider whether action is speech or non-speech:
 Government choice/selection. The Gov’t has wide latitude to attach conditions
to the receipt of federal assistance in order to further its policy objectives. On a
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
facial challenge, the challenger must demonstrate a substantial risk that the
application of the provision will lead to suppression of speech
But Congress may not (1) Induce the recipient to engage in activates that would
themselves be unconstitutional; (2) Condition benefits on forgoing constitutional
rights;
Government-Speech” When the gov’t speaks on its own behalf the speech is not
subject to 1st amendment scrutiny even though the message may have originated
from a private source. This often applies when the gov’t receives assistance from
private sources for the purpose of delivering a government-controlled message.
To determine whether gov’t speech is involved Justice Souter suggests a
reasonable observer test, which he describes as determining whether a reasonable
and fully informed observer would understand the expression to be “government
speech,” as distinct from merely “private speech” that the government has chosen
to oblige.
4. Expressive Conduct/Symbolic Speech
 When conduct is being regulated, consider whether conduct is being used to
communicate/express a message.
 First, determine if conduct is really sending a message by applying the so called:
 Spence Test:
(1) Subjective intent to communicate a message,
(2) Reasonably likely to be understood as communicating the message] the
conduct will be deemed symbolic speech and will be treated as actual speech for
1st Amendment purposes.

Second, if you determine that the conduct meets the Spence test, apply the
O’Brien test to determine the validity of the government restriction on the
expressive conduct by considering the following:
 Is the law restricting the conduct within the constitutional power of
the gov’t to regulate the conduct?
 Does regulation further an important gov’t interest?
 Is the restriction on the conduct unrelated to the suppression of
speech?
 Is the incidental restriction on speech no more invasive on the
expression than necessary?
5. Review regulation or order for vagueness and overbreadth
 A regulation is unconstitutionally vague if a reasonable person cannot tell what
activity is permitted or prohibited or gives too much discretion to gov’t
authorities. (Watch for words like annoying. Note regulations dealing with
sexual themes are often given broader latitude.)
 If found to be unconstitutionally vague, the regulation is void on its face.
 A regulation is overbroad if it significantly prohibits or inhibits a significant
amount of protected speech.
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If found to be unconstitutionally overbroad, the regulation is void on its
face.
The person to whom the law may lawfully be applied may argue on
behalf of others to whom application would be unconstitutional. (Schad
6. Consider Nature of the infringement
Burden on free speech rights
Free speech rights are infringed if the gov’t action significantly restricts, forbids or
compels speech (real or symbolic). Content-based (protected message is predominant
target of the infringement) and content-neutral (something other than protected message
is target of the infringement) determinations will trigger strict scrutiny or intermediated
scrutiny respectively
Content-Based Infringements
Restrictions based on viewpoint or subject matter
Strict Scrutiny applies -- Regulation must be necessary to achieve a compelling state
interest and does not restrict more protected speech than necessary to achieve the interest
-- it must burden the least amount of speech
Content-Neutral Infringements
Restrictions that for example:
 NOT regulating based on viewpoint or on subject matter);
 Reasonable non content based time, place and manner (TPM) restrictions are
essentially insubstantial infringement on speech and will be constitutional if not
directed at the message.
 Secondary effects – The regulation may be deemed content neutral and escape
strict scrutiny if it is primarily aimed at curbing undesirable secondary effects
of conduct aspect of speech. (Renton v. Playtime)
 Expressive Conduct [See above] -- When speech based on conduct or things
not inherently communicative, may determine if First Amendment Protection
applies by finding (1) subjective intent to communicate a message and (2)
reasonably likely to be understood as communicating the message. The conduct
will be deemed symbolic speech and the restriction will be scrutinized under
intermediate scrutiny described in the O’Brien case.
Intermediate Scrutiny applies – regulation must be and narrowly tailored to achieve an
important/substantial gov’t interest and infringing on no more speech than necessary and
leave ample alternative channels of communication open.
.
.
Prior restraints on speech.
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
Generally -- an administrative system that prevents speech before it actually
occurs (There is a heavy presumption against constitutionality).Consider the
nature of the infringement, e.g. whether direct and content based or indirect,
content neutral/viewpoint neutral, insubstantial, affecting only time, place and
manner.

Prior Restraints – Court orders and other administrative orders
 Prior restraints that are court and other administrative orders (e.g. gag
orders, cease and desist orders) generally will apply heightened scrutiny as
order is directed curtailing or limiting communications. Considering the
gravity of the harm and likelihood of occurrence in evaluating compelling
justifications. Justice Learned Hand suggests the constitutional validity of a
prior restraint “should be [measured by] the gravity of the evil discounted by
its probability.”
 In considering validity of court order, consider the following:
 The extent or nature of the harm (e.g. in a restraint on disseminating of
information by the press consider the nature and extent of
the pretrial coverage in creating an environment that would make a fair
trial difficult);
 If other measures that minimize or avoid restrain the dissemination of
speech would mitigate the effects of the unrestrained activity;
 Whether the order is precise in its description and duration of what's
restrained;
 Whether the order is effective in preventing the threatened danger;
 Whether there are other fundamental rights that must be balanced.

Permits/licenses
In order for these prior restraints to be constitutional:

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


Generally needs to be content neutral – based on time, place, or manner and
not the message itself.
There must be an “important” reason for licensing requirement.
Clear standards as to the requirements to obtain the license, leaving
almost no discretion to the issuing gov’t official or agency.
Procedural Safeguards that are appropriate for the circumstances (i.e. must
satisfy Due Process)
Quick approval or denial adequate for the circumstances (Must be able to
appeal and get final ruling before issue becomes moot.)
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Caveat: Look out for the Collateral Bar Rule – often applied to licenses and
permits, the rule requires a person challenging the constitutionality of the
restraining order or permits to observe the order or permit until it is set aside
unless the law or order is clearly unconstitutional on its face. A challenger that
fails to do so waives the unconstitutionality of the law as a defense. See Walker v.
City of Birmingham, Court barred the constitutional challenges of several
ministers protesting discriminatory practices because the orders were not
transparently invalid or based on a frivolous pretense.
Infringements based on Preventing Compensation. Compensation provides a
significant incentive toward more expression. Restrictions on compensation, such as
honoraria ban on federal employees, is subject to strict scrutiny review. Add:
Concomitantly restrictions on obtaining money or funds to increase one’s (or a groups’)
message would be an infringement on the message.
Infringements based Compelled Speech. Gov’t action, such as requiring pledges and
allegiance, subject to strict scrutiny review.
Infringements due to undue pressure. The gov’t may infringe upon speech without
actually prohibiting or penalizing speech when government pressure places an due
pressure to not exercise right to speak because of reasonably perceived unfavorable
consequences.
Infringements on Government-Employee Free Speech Rights
 Generally - No First Amendment rights while on job or part of duties unless
matter of public concern and even then can be disciplined or fired if gov’t can
show efficiency of office justifies the action. (Garcetti v. Ceballos, 1610 [1596]

Honoraria (Compensation) -- a broad band on public employees from accepting
any compensation for making speeches or writing articles is unconstitutional.
Compensation provides a significant incentive toward more expression. Broad
ban not narrowly tailored to achieve an overriding gov’t concern. United States v
National Treasury Employees Union 1275-77 [1293-94].

Gov’t Oaths of Allegiance. Loyalty Oaths or oaths of allegiance are generally
unconstitutionally vague and overbroad and are violations of the right not to speak
as well as freedom of association. Baggett v Bullitt (1237[1249); Elfbrandt v
Russell (1618[1604]) Exception: Loyalty oaths that require that an individual to
swear to uphold and defend the Constitution is valid if it does not deny
employment based on membership in a particular group. See Cole v. Richardson
(1972) 405 US 676.
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Less Protected Areas of Speech
Indecent Speech and Speech with Sexual overtones
Courts will usually apply an intermediate level of scrutiny of gov’t restrictions, i.e. treat it
as content-neutral even where an argument could be made that it is content-based.
Note: Sale and distribution of “specified sexual activities” and the Location of Adult theatres
may be regulated even though the First Amendment protects the expression from total
suppression as part of a city’s interest in the present and future character of its
neighborhoods. (Young v. America Mini-Theatres, 1388[1378].)
Commercial Speech
Commercial Speech to determine if it is Commercial Speech involved apply the Bolger
test:
a) Meant to be an advertisement (note trademark not considered speech)
b) Reference a particular product
c) Involve economic/profit motivation for disseminating the material If qualified, it
is commercial speech and is entitled to intermediate scrutiny. (But note he
doctrine of overbreadth not applicable. See NY v. Fox, CB. P. 1439))
Apply the Central Hudson Test (to determine constitutionality)
a) Does the gov’t have substantial and real (Rubin, CB 1440) gov’t interest to
protect?
b) Does the regulation directly and materially advance that interest?
c) Is the regulation no more extensive than necessary (no need to be the least
restrictive)?
Advertising that simply risks deception and not facially deceptive
Generally triggers intermediate scrutiny afforded commercial speech (Friedman v. Rogers),
e.g.:
a) Laws that prohibit professionals from advertising or practicing under trade
names and; (public misunderstanding)
b) Restrictions on the ability of professionals to solicit clients
 Attorneys (Ohralik)
The government may not prohibit attorney’s from engaging in truthful,
non-deceptive advertising of their services
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The government may prohibit attorney in-person solicitation of
prospective clients for profit. The inherent rationale is that such speech
inherently risks becoming deceptive and thus even truthful solicitations
can be forbidden when they are conducted in person and where the
attorney would profit from the representation. (pro bono exception)
 Accountants (Edenfield)
Government may not prohibit accountants from engaging in in-person
solicitation of clients for profit. They are not considered trained “in the art
of persuasion” like lawyers. Their training emphasizes independence and
objectivity, not advocacy.
Notes and queries
Government cannot limit truthful, non-deceptive advertising when those laws are based on the
belief that people will be better off with less information. Cities often restrict the size and
contents of for sale signs or billboards. They also restrict the quantity and quality of
advertisements for such things as tobacco, liquor and gambling. How do they get away with
such restrictions and in what circumstances can they outright Symbolic Speech
Unprotected Areas of Speech
Incitement to violence or criminality

(Brandenburg Test) (Current Test)
a)
b)
c)
d)
There is a likelihood of imminent illegal conduct;
The threatened action poses serious risk of harm;
The speech is directed to causing the imminent illegality;
The illegality is likely to occur.
There must be intent to incite imminent lawless action
There must be a likelihood that lawless action will occur
Consider these points: Imminent, serious, directed, likely.
ALWAYS CONSIDER: Balancing the gravity of evil with the improbability of it
happening when coming to a conclusion.
Fighting Words

Words uttered to someone else [directed] specifically (can be an audience) that are
likely to provoke a violent response or likely to inflict emotional harm on the listener
(Second prong usually not considered) (Chaplinsky)
Statutes and ordinances that attempt to define conduct that constitutes “fighting words are
typically overturned because they are either overbroad or vague.
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True Threats
A variation of fighting words theme and occur when
1. An individual means [subjective intent] to communicate a serious expression of
an intent to commit an act of unlawful violence to a particular individual or
group of individuals; but
2. It does not, as in the case of fighting words, require the imminent outbreak of
violence, but the rather a reasonable fear that such violence might occur.
It does not require an actual face-to-face confrontation often associated with cyberbullying.
Obscenity
Unprotected if expression meets the Miller Test (Miller v. California)
a) Appeals to prurient interests (Local Standard)
b) Depicts sexual conduct in patently offensive way
c) Lacks serious artistic, political, or scientific merit (National Standard)
Child Pornography
Can be regulated – apply the Ferber test
Child Pornography is unprotected if it:
1. Depicts or describes children engaged in sexual or lewd exhibition of their
genitals specifically defined by applicable law.
2. Must be adequately defined by applicable law as written or authoritatively
defined, e.g. visually depicting sexual conduct by children below a specified age.
Advertisement of illegal or Deceptive Practices Not Protected
Advertising that inherently risks deception calls for only rational basis (rationally
related to a legitimate gov’t interest. (Friedman v. Rogers)
Defamation
(Unprotected speech – gov’t limited in ability to provide remedies except in where prove
actual malice appropriate level malice – depending on whether challenger is public or
private figure or public concern)
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Spring 2017 Semester in a Nutshell
[Part II]
FREEDOM OF ASSOCIATION
1. Re Freedom of Association what levels of scrutiny apply to freedom of association?
Freedom of Association Involves two types of Association Rights (Roberts v. US Jaycees)
1. Non Expressive Association -- Fundamental Right to Liberty [Con L I]
• Right to enter and maintain personal relationships (e.g. family,
children, other intimate or familiar relationships as opposed to large
corporation or employment environment).
• Determination often depends on size, familiarity, selectivity.
2. Expressive Association -- Free Speech Rights
• Association intended as a collective effort to foster, amplify, or
better promote beliefs, message, or expression or collective goal.
• Nature and composition of group as a manifestation/symbol of goal
is the message. Thus, the size, complexion, composition, activities,
etc., which effectively alters the message is subject to First
Amendment Free Speech protection.
Infringement of the right to association may be justified by compelling state interest unrelated
to the suppression of ideas, where the interest cannot be achieved through means significantly
less restrictive of association freedom. Consider these infringements:
A. Altering the membership composition by compelling the acceptance of members or
requiring or restricting what the group can say in a way that significantly alters the
message (goal) manifested in the group association. (See Boy Scouts v. Dale)
B. Disclosure of membership can be forced by the government if necessary to achieve a
compelling government purpose. The court will balance the magnitude of the
government interest, seriousness of the invasion of the associational privacy and whether
there are less restrictive alternatives. NAACP v. Alabama
C. Government may punish membership if:
a) The organization advocates illegal conduct;
b) Persons affiliations with group is proved;
c) Active membership is proved;
d) Person knows of the organizations illegal purpose; and
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e) Person has specific intent to further illegal purpose.
FREEDOM OF THE PRESS
A. 1st Amend: Congress shall make no law respecting . . .abridging the freedom of press . . .
B. 14th Amendment incorporates and applies it to the states through the privileges and
immunities portion of section 1.
C. General Principles applicable to Press
 Most rules that apply to free speech apply to freedom of the press.
 Press is subject to generally applicable economic regulations even if the enforcement
of the rules has incidental effects on the press ability to gather and report the news.
 The press has no special immunity, absent applicable legislation, from application of
general laws. Thus reporter can be subpoenaed to disclose sources if member of
public can be so subpoenaed.

But press entitled to access to places open to public, but does not give press special
access to info not generally open to public.
RELIGIOUS FREEDOM (FREE EXERCISE) AND
ESTABLISHMENT CLAUSES
First Amendment: Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof.
FREE EXERCISE CLAUSE
Definition: There is no clear definition as to what is a religion. Arguably could violate the
establishment clause to have a set definition. There are, however, guiding principles that courts
use to test the applicability of the establishment and free exercise clauses. Those principles
usually (but not always) include sincerely held belief that is essentially more than political,
sociological or philosophical – beliefs that occupy place where religious beliefs reside.
Basic tenets:
a) Freedom to believe is absolute – gov’t may not constitutionally punish beliefs.
b) Freedom to act is not absolute – Religious conduct subject to valid gov’t regulations.
General principles and levels of scrutiny
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The Sherbert test [Note but disregard for purposes of exam.]
 Gov’t action that substantially burdens a religious practice must be justified by a
compelling governmental interest within the government’s constitutional power an on a
showing that no less onerous alternative was available to address the compelling interest.
(Arguably now this strict scrutiny standard is applied only to employment benefits [e.g.
quit because of beliefs] or fundamental rights such as child rearing (where choice is
between religion and parental control versus a living income) are involved. But note
statutes like amended version of RFRA apply Sherbert’s strict scrutiny standard to
federal gov’t or state that has enacted such statute. These are statutory rather than
Federal Constitutional violations.
The Smith test (When religion is not targeted) [Apply this rule]
 Generally a law that is neutral and of general applicability need not be justified by a
compelling governmental interest even if the law has the incidental effect of burdening a
particular religious practice. But higher scrutiny may be involved if other fundamental
rights are also involved such as parental rights or freedom of speech rights. (Casebook, p.
1686 [1676]. See some exceptions at1690 [1678])
Test when religion is targeted
 A law targeting religious beliefs as such is not permissible. If the object of the law is to
infringe upon or restrict practices because of their religious motivation and is invalid
unless justified by a compelling interest that is narrowly tailored to advance the interest.
Testing sincerity of belief
 The gov’t cannot regulate or question belief, but may question the sincerity of the belief.
Thus a person cannot be tried on whether the beliefs are true, but may be tried on whether
he or she knew certain factual statements were true.
ESTABLISHMENT CLAUSE
In order for a statute to avoid running afoul of the Establishment Clause (Lemon test):
1. It must have secular legislative purpose;
2. Its principle or primary effect must be one that neither advances nor inhibits religion;
3. It must not foster excessive government entanglement.
Major competing approaches regarding application of the Establishment Clause & the Lemon test
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1. Strict separation
 First Amendment has erected a wall between church and state
 Purpose of the Clause is to uproot all gov’t and church relationships
 Gov’t involvement in the myriad religions is potentially divisive
2. Neutrality
 No endorsement or encouragement – actual or symbolic – of religion
 Employs the informed observer test to determine if constitutes endorsement
3. Accommodation
 Gov’t literally establishes a church or
 Coerces religious participation
Mitchell announced the following constitutional test for religious organizations participation aid
programs:
1. Aid must be available to all students.
2. The aid is more likely to be allowed if it is provided directly to the students than if it sis
provided to the school
3. The aid is a type that likely cannot be used for religion instruction and will be invalidated
if it can be easily used for religious education.
True private choice rule
According to Chemrinski the first two continue to be followed, the last prong not so much. 1786
[1783]. Courts have applied the Lemon test to costs to evaluate tax credits. Deductions allowed
for all children constitutional; deductions or credits only for nonprofits unconstitutional.* 1787
[1784].
Note: Religious speech is also covered by Free Speech and Freedom of Association rules.
FIRST AMENDMENT
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SCRUTINY MATRIX A
Type of Speech Infringed upon
Expression
(Fully Protected Speech)
Method of Infringement
Content-Based
Judicial Review
Strict
-Necessary to achieve a
-compelling gov’t goal using
-least restrictive practical infringement on
speech.
Stated another way:
-Narrowly tailored to serve;
-A Compelling Gov’t goal;
-Does not unnecessarily circumscribe protected
expression.
-Republican Party v White
Expression
(Fully Protected Speech)
Content-Based Prior
Restraints (E.g.
Injunctions and Judicial
Orders)
Strict
-Compelling goal [Often measured by the extent
or nature of the harm (e.g. in a restraint
on disseminating of information by the press
consider the nature and extent of
the pretrial coverage
in creating an environment that would make a
fair trial difficult)];
-Necessary: Effectiveness in mitigating the
harm;
-Narrowly tailored: Precision in describing the
activities restrained and for the s Whether the
order is precise in its description and duration of
what's restrained;
-No Less Onerous alternative ways to achieve
the goal. [Whether other measures that minimize
or avoid restrain the dissemination of speech
would mitigate the effects of the
unrestrained expression.]
Expression
(Fully Protected)
Content-Neutral
(generally)
Intermediate
Important government interest that is
substantially related to achieving the important
interest. Turner v. FCC 1217
Stated another way:
Congruent to the benefits it afforded and
narrowly tailored to preserve a multiplicity of
speech outlets. Turner
Stated another way:
Designed to serve a substantial governmental
interest and do not unreasonably limit alternative
avenues of communication. Renton
Expression (Fully Protected Speech)
Content-Neutral Prior
Restraints (Licenses &
Permits)
Intermediate
Important justification (reason is relevant only if
it is substantially related to achieving the
justification). In addition, must have:
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



Expressive Conduct
Content-Neutral
Clear standards as to the requirements to
obtain the license,
That leaves almost no discretion to the
issuing gov’t official or agency;
Procedural Safeguards that are
appropriate for the circumstances (i.e.
must satisfy Due Process);
Quick approval or denial adequate for the
circumstances (Must be able to appeal
and get final ruling before issue becomes
moot.)
Intermediate
Restriction is within the Constitutional power of
the government to regulate the non-speech
component of the expressive speech.
Restriction is unrelated to the suppression of
free expression.
Narrowly tailored and specifically designed to
prohibit the conduct.
No more speech is precluded than necessary to
advance the government interest.
- O’Brien test
Secondary Effects of Speech
(Effects are predominant gov’t
concern)
Content-Neutral
Intermediate
Designed to serve (achieve) a substantial
governmental interest and do not unreasonably
limit alternative avenues of communication.
FIRST AMENDMENT
SCRUTINY MATRIX B
Type of Speech (or place speech)
Infringed upon
Unprotected Incitement to violence
or criminality
(Expression where there is a
likelihood of:
Imminent illegal conduct;
The threatened action poses serious
risk of harm;
The speech is directed to causing
the imminent illegality;
The illegality is likely to occur Brandenburg test)
Unprotected Fighting Words
(Words Narrowly directed at an
individual;
Method of Infringement
Judicial Review
Content-Neutral or
Content- Based
Rational Basis
Need only be legitimate and rationally related to
achieving a legitimate goal
Content-Neutral or
Content Based
Rational Basis
Need only be legitimate and rational
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Intended to provoke and
Likely to provoke the average person
to a violent response or
Likely to inflict immediate
emotional harm.)
Commercial Speech
(Meant to be an advertisement [note
trademark not considered speech];
References a particular product;
there is an Economic/profit
motivation for disseminating the
material.)
Content-Based or
Content-Neutral (Note
overbreadth standing
exception not applicable
to Commercial Speech)
Intermediate
Gov’t have substantial and real (Rubin) gov’t
interest to protect; the regulation directly and
materially advance that interest; the regulation
narrowly tailored – no more extensive than
necessary (no need to be the least restrictive)
Government Selection
(Gov’t exercising its wide latitude to
attach conditions to the receipt of
federal assistance in order to further
its policy objectives.)
Content-Neutral or
Content-Based (But not
viewpoint based)
Rational Basis
Need only be legitimate and rational.
But Gov’t may not
-Induce the recipient to engage in activates that
would themselves be unconstitutional;
-Condition benefits on forgoing constitutional
rights.
*On a facial challenge, the challenger must
demonstrate a substantial risk that the
application of the provision will lead to
suppression of speech.
Government Speech
(Souter: A reasonable and fully
informed observer would understand
the expression to be “government
speech,” as distinct from merely
“private speech” that the
government has chosen to oblige.)
Content Neutral or
Content Based
(Viewpoint Neutral)
Rational Basis
Need only be legitimate and rational.
Less Protected Speech (Indecent
Speech)
(Public exhibition of obscene
material, or commerce in such
material; has a tendency to injure the
community as a whole or endanger
public safety. Barnes)
Content-Neutral or
Content-Based
Intermediate
Regulation is unrelated to the suppression of free
expression;Specifically defined to prohibit the
conduct; Ample speech available.
Unprotected Speech (Obscenity)
(Expression the average person,
applying contemporary community
standards would find that the work,
taken as a whole, appeals to the
prurient interest.
The work depicts or describes, in a
patently offensive way, sexual
conduct specifically defined by
applicable law.
Whether the work, taken as a whole
lacks serious literary, artistic,
political or scientific value.)
Content-Based or
Content Neutral
Rational Basis
Need only be legitimate and rational (But watch
for situations where restriction combined with
protected speech, e.g. obscenity directed at
politicians only in which case need to meet strict
scrutiny test.
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Public Forums
(Places traditionally open to free
speech, or that have been opened to
free speech e.g. streets, roads, parks,
train stations, spaces designated as
open for speech, but not airports and
government offices or closed parks
and spaces.)
Content-Based
Strict
(All rules above apply)
-Necessary to achieve a
-compelling gov’t interest using
-least restrictive infringement on speech
practical.
Stated another way:
-Narrowly tailored to serve;
-A compelling state interest;
-Does not unnecessarily circumscribe protected
expression.
Public Forums or Designated
(*Limited) Public Forums
Content-Neutral
Intermediate
All rules above apply)
Important government interest that is
substantially related to achieving the important
interest. Turner v. FCC 1217
Stated another way:
Congruent to the benefits it afforded and
narrowly tailored to preserve a multiplicity of
speech outlets. Turner
Stated another way:
Designed to serve a substantial governmental
interest and does not unreasonably limit
alternative avenues of communication.
Non-Public Forums
(Places traditionally not open to free
speech, that is incompatible with the
normal use of the place, e.g. gov’t
offices, airport terminals, schools,
military facilities)
Content-Neutral or
Content-Based but
Viewpoint neutral
Rational Basis
(Need only be legitimate and rational and
viewpoint neutral. [*Opening up Non-Public
places for speech that is compatible to the
operation of the place does not convert the place
to designated public place.])
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