CON LAW 2 FINAL
STATE ACTION DOCTRINE
• With state action doctrine, the individual is suing the state because the
state has violated the individuals constitutional right.
• State action doctrine provides that the constitution applies to the
government
• Government can enact laws that require private conduct meet the
same standards that the constitution requires of the government
WHEN C AN INDIVIDUAL LIBERTIES AND
EQUAL PROTECTION CHALLENGES BE
BROUGHT TO CHALLENGE PRIVATE
CONDUCT
• Public function doctrine: private actor engages in function that was traditionally
and exclusively performed by the government
• Exception: private actor engages in function that is typically performed by
government. Private entity must comply with the constitution if its
performing a task that has been traditionally, exclusively done by the
government.
• Marsh-balancing test: whether the private property is used for a public
purpose
• Jackson test: whether its an activity that has been traditionally, exclusively
done by the government
ENTANGLEMENT EXCEPTION
• Government, by its behavior, has authorized, approved, encouraged, facilitated, or
directed the private actor’s unconstitutional behavior, then the private actor must
comply with the constitution.
• Government is heavily involved, entangled or entwined in activity.
• Key question: what degree of government involvement is sufficient to make the
constitution applicable?
• Judicial and law enforcement action
• Government licensing and regulations
• Government subsidies
• Votes initiatives permitting discrimination
PROCEDURAL DUE PROCESS
• Due process of 5th amendment (applied to federal government) & 14th
amendment (applied to states) provide that the government shall not take a
person’s life, liberty, or property without due process of law. Due process
contemplates fair process/procedure, which requires at least an opportunity to
present objections to the proposed action to fair, neutral decision maker.
LIBERTY
• Not specifically defined. It includes more than just freedom from bodily
restraints. A deprivation of liberty occurs if a person:
• Loses significant freedom of action; or
• Is denied freedom provided by the constitution or a statute
Example: injury to reputation in itself is not deprivation of liberty or property. However,
if governmental acts so injure a persons reputation that he will have lost significant
employment or associational opportunities, there is a loss in liberty.
PROPERTY
• Includes more than just personal belonging and realty, chattels, or money, but
an abstract need or desire for the benefit isn't enough. There must be a LEGIT
CLAIM OR ENTITLEMENT to the benefit under state or federal law (board of
regents v. roth)
• Examples:
• Public education – property interest when attendance is required. A suspension
that’s for a significant time requires procedural due process
• Welfare benefits – one has property interest if she has previously ben determined
to meet requirements
• Public employment – if terminated for cause, there's a property interest
QUESTIONS TO ASK FOR PDP ANALYSIS
• Has there been a deprivation?
• You must have entitlement to the deprivation
• Is it of life, liberty, or property?
• is it without due process of law?
• When does government conduct deprive person of life, liberty, or property?
• Pdp does not apply if the government enacts/decides something that applies to everyone,
but only takes it from certain individuals.
• Liberty: confinement, marriage/family, not reputation alone
• Property: tangible or intangible (employment, education, benefits, license)
• Was individual provided an appropriate amount of due process?
NOT EVERY DEPRIVATION REQUIRES A
PRE-DEPRIVATION HEARING
• Considerations:
• Importance of the interest
• Value of the specifically procedural safeguard (severity of harm if procedure not
provided)
• Government interest in efficiently (cost or difficulty of proving the procedure)
• Pre v. post deprivation hearings
WHAT TYPE OF PROCESS IS REQUIRED?
• While all intentional governmental deprivations of life, liberty, or property
require fair process, the court will weigh:
• The importance of the individual interest involved;
• The value of specific procedural safeguards to that interest; and
• Governmental interest in fiscal and administrative efficiency
WELFARE BENEFITS HEARING
• Due process requires an evidentiary hearing PRIOR to termination.
• Recipient must have timely and adequate notice of reason for proposed
termination, right to confront adverse witnesses, and right to present own
arguments
• Goldberg v. kelley
GOLDBERG V. KELLY
•
•
Facts:
•
Appellees, John Kelley were NY residents who received assistance under aid to families with dependent
children or NY home relief program and their assistance was terminated without due process (legal theory)
•
Families received no prior notice/hearings. Challenged NY’s lack of evidentiary hearing prior to the
termination of the benefits. Namely the opportunity to personally appear before the reviewing officer for oral
testimony and cross examine the adverse witnesses.
•
Issue: whether the DP clause requires that the recipient be afforded an evidentiary hearing before the
termination of benefits?
Holding:
•
Yes
•
RULE: the extent to which procedural DP must be afforded in a particular situation is influenced by the extent
of the loss suffered and depends on whether the recipient’s interest in avoiding the loss outweighs the
governmental interest in summary adjudication.
DISABILITY BENEFIT HEARING
• No prior evidentiary hearing required.
• Must have prior notice to recipient, opportunity to respond in writing and a
subsequent evidentiary hearing.
• Disability benefits are not based on financial need so they’re not vital
MATTHEWS V. ELDRIDGE
•
Matthews v. Eldridge (Justice Powell)
•
•
Facts:
•
State agency terminated Eldredge’s disability benefits
•
Eldridge challenged the constitutionality of the governments termination procedures as not sufficiently protecting his right to due
process under 5th amendment.
•
Eldridge was informed of termination, provided a statement of reasons for the termination and was given opportunity to submit
written response to the state
•
Eldridge had opportunity to file for reconsideration.
•
Issue: whether eldridge was entitled to evidentiary hearing before termination of SS benefits
Holding:
•
NO
•
Matthew’s test: the court must balance the importance of interest involved, the degree to which the procedure will make a
difference, and cost of the government
•
Private interest that will be affected; the risk of erroneous deprivation & the governments interest
PUBLIC EMPLOYMENT HEARING
• Employee removed for cause generally must be given notice of charged against
him and a pre-termination opportunity to respond.
• He may have a subsequent evidentiary hearing regarding the termination.
• NO RIGHT TO HEARING IF YOU ARE AN AT WILL EMPLOYEE
OR TERMINATED WITHOUT CAUSE.
BOARD OF REGENTS V. ROTH
•
Board of regents v. Roth (justice stewart)
•
Facts: Roth, university of Wisconsin-Oshkosh professor with one-year contract as not retained for a second year. Upon
release, he was not provided with a reason or hearing as to why he was not being retained for the following year.
•
•
Issue: whether a government employee with a fixed term of employment have a 14th amendment liberty or property
interest in continued employment after the fixed term expires such that a decision not to rehire the person must be
accompanied by a hearing at which the person can challenge the decision
Holding:
•
No.
•
Rule: person is not deprived of liberty or property in violation of the 14th amendment when he is not hired or rehired
for a government job but remains free to seek employment
•
Entitlement is defined as reasonable expectation to continued receipt of benefit. The existence of an entitlement
depends on whether the law creates a justifiable expectation that the benefit will be received in the future that he
would be rehired. There was no provision in the contract for renewal whatsoever. There also was no liberty
interest because although he was not rehired in one job (university); he remains free to seek another
PUBLIC EDUCATION – DISCIPLINARY
SUSPENSION
• No formal evidentiary hearing required, but due process usually requires
notice of charges and an opportunity to explain.
• If student poses a danger, notice and hearing may follow removal as soon as
practicable.
GOSS V. LOPEZ
•
Goss v. lopez (Justice White)
•
•
•
Facts:
•
Students of public-school system were suspended from school without a hearing either before or shortly after suspensions.
•
BOE alleged no constitutional right to education at public expense
•
COA ruled in favor of the students and the administrators of school appealed
Holding:
•
Rule: reputation is a liberty interest and there is a property interest in students attending school. Students have legit property interest in their
education, which is protected by DPC. This right cannot be taken away without appropriate procedural hearings.
•
There is a liberty interest in reputation.
•
Suspensions can’t be constitutionally imposed by any procedure the school chooses – students must be given oral/written notice of charges
Point:
•
No constitutional right to education but the entitlement may stem from the state
•
If the state is providing it, the state is depriving an intangible property interest in education.
PUBLIC EDUCATION – ACADEMIC
DISMISSAL
• No prior evidentiary hearing is required when student is dismissed for
‘academic’ deficiencies rather than for disciplinary issues.
•
Due process is satisfied if student is adequately informed of deficiency and
given opportunity to respond.
TERMINATION OF PARENT STATUS
HEARING
• Due process does not require appointment of counsel here, but only when
’fundamental fairness’ requires the appointment.
• To terminate parental rights, state must prove neglect or misconduct by clear
and convincing evidence.
THE TAKINGS CLAUSE
TAKINGS CLAUSE
• 5TH amendment prohibits governmental taking of private property ‘for public
use without just compensation’. Applied to states via the 14th amendment.
• Not a grant of power, but rather a limitation on power, as the taking must arise
out of some other source (ex: police power)
• Any taking by government that causes significant damage to property or
impairs the use of it.
QUESTIONS FOR TAKINGS CLAUSE
• Is there a taking of property? (if not, it’s possessory taking)
• Possessory taking – occurs when government confiscates/physically occupies the property.
• Regulatory taking: when government regulation leaves no reasonable economically viable
use for property. (government says you cant change the function of a building because it’s a
historical site)
• What kind of property?
• What's being taken?
• Is it being taken for public use?
• If so, valid if it meets the rational basis test.
• Is just compensation paid?
EXCEPTION – EMERGENCY SITUATIONS
• A taking is less likely to be found during an emergency situation, even where
there has been destruction or actual occupation of private property
• Ex: no compensation when state orders destruction of cedar trees that threatened to
spread disease to apple orchards.
JUST COMPENSATION
• Owner is entitled to fair market value of property at time of the taking – not
the value it would have it put it to the highest and best use.
KOONTZ V. ST. JOHNSON RIVER WATER
MANAGEMENT DISTRICT
•
•
facts:
•
koontz sr. purchased undeveloped land in 1972 on south side of florida state road 50 (son is executor of estate and representing estate in his son).
The same year Koontz sr. purchased land, florida enacted the water resource act which basically divided the state into 5 water management
districts and each district could regulate construction that connects to, draws water from, drains water into, etc.
•
under this act, a landowner wishing to undertake construction must obtain management and storage of surface water permit. Permit could impose
reasonable conditions to assure construction that would be harmful to water resources. In 1984, the state enacted the Henderson wetlands
protection act which applicants were required to provide reasonable assurance that proposed construction on wetlands is not contrary to the
public interest. Koontz wanted to develop his property and was denied for permits. Filed suit and alleged that demands for mitigation were
excessive in light of the environmental effects that his building proposal would have caused and sought monetary damages under 373.617(2). Trial
court ruled districts conduct was unlawful and didn’t show a nexus and rough proportionality to the environmental impact of the proposed
construction, COA affirmed. SCOTUS reversed.
Holding:
•
Court discussed unconstitutional condition doctrine, that defends the constitution enumerated rights by preventing the government from coercing
people into giving them up
•
Test:
•
•
Government can conditionally approve a permit on dedication of property to the public so long as there is 1. Nexus and 2. Rough
proportionality between the property that government demands and social cost of the applicant’s proposal
•
Court reasoned SCOTUS view that koontz argument failed c he was asked to spend money rather than give up an easement. Monetary
exactions must satisfy the nexus and rough proportionality required of Nolan and Dolan.
•
Monetary obligation burdened koontz’s ownership of parcel.
RULE: the governments demand for property from land-use permit application must satisfy the requirements of Nolan and dolan even when
government denies permit and even when the demand is for money
KELO V. CITY OF NEW LONDON
•
kelo v. city of new London
•
•
Facts
•
new London approved a development plan that was projected to create in excess of 1,000 jobs, to increase tax and other revenues,
and to revitalize and economically distressed city, including its downtown and waterfront areas.
•
Assembling the land needed for project, city’s development agent purchased property from willing sellers and proposed to the
power of eminent domain to acquire the remainder of the property from unwilling owners in exchange for compensation.
•
Issue: does the city’s proposed disposition of property from owners unwilling to sell qualify as ‘public use’ within the meaning of the
takings clause of 5th amendment to the constitution? (basically whether the city’s development plan serves public purpose?
Holding:
•
•
SCOTUS said that the city’s action was for public use because it reasonably believed that its action would create over 1,000 new
jobs and increase economic growth
Points:
•
Case involved possessory taking
•
Court concluded that taking was for public use even though it was economic development.
•
Kelo’s argument was that there was no authority to take because it wasn’t a taking for public use.
•
Transferring property from one private individual to another private individual if the public purpose is for economic development
(economically depressed area)
•
Creating jobs, restoring community, uplifting the community. If the area was not an economic depressed area, then it’s likely a
violation of the taking’s clause. The state could step in and say ‘even though the federal constitution allows the taking to be
permissible, this particular taking is violative of constitution.
EQUAL PROTECTION
• Provision under the 14th amendment: ”nor shall any state deprive any person
of life, liberty or property without due process of law, nor deny any person
within its jurisdiction the equal protection of law”
• Applies to state and local government through the 14th amendment & to the
federal government via the 5th amendment.
• Violated when individuals are treated differently.
LEVELS OF SCRUTINY
• Different levels of scrutiny apply.
•
Does the statute (or conduct) include classification?
•
Race
•
Origin
•
alienage
•
Gender
•
Legitimacy
•
Is a neutral law applicable in a discriminatory manner based on classification?
•
Does a facially neutral law have a disparate impact; if so, is there a discriminatory purpose? Motive?
•
Note: disparate impact/effect alone will not give rise to EPC challenge. There must also be a discriminatory
purpose
LEVELS OF REVIEW
• Strict scrutiny: government must prove that it is necessary to promote/achieve a
compelling government interest and there are no less restrictive
means/alternatives.
• Race, ethnicity, national origin, alienage, and impairing fundamental right.
• Intermediate: government must prove that the classification is substantially related
to achieve an important government interest to be valid
• Gender, illegitimacy
• Rational basis/rational relation: law presumed constitutional and challenger must
prove that the classification is not rationally related to a legit government interest
• Age
3 QUESTION ANALYSIS FOR REVIEW
•
•
•
What is the classification?
•
Showing classification exists on its face OR
•
Showing that a facially neutral law has a discriminatory impact
Level of scrutiny appropriate?
•
Strict
•
Intermediate
•
Rational basis
Does the government action meet the level of scrutiny?
•
Strict
•
•
Intermediate
•
•
Deemed compelling
Regarded as important
Rational
SUBSTANTIVE DUE PROCESS
• 2 constitutional clauses protect substantive due process:
• Due process clause of 5th amendment (federal government)
• Due process clause of 14th amendment (applies to state and local government)
STANDARDS FOR SDP
• Fundamental rights – strict scrutiny.
• Strict scrutiny – upheld only if the government can prove that the action is necessary
to promote a compelling governmental interest. Fundamental rights include:
• Right to travel
• All other cases – rationality
FUNDAMENTAL RIGHTS & SDP
• Is state regulating what an individual can do?
• Does regulation involve fundamental right? (right to privacy, marry, raise
children, procreate, vote, access to court, interstate travel, refuse medical
treatment, etc)
• If yes – law is reviewed under strict scrutiny and government must prove that the
statute is necessary to promote the compelling government interest and there are no
less restrictive means
• If no – statute need only be rational, that the state is pursuing a legit government
objective and the statute is rationally related to the objective.
RIGHT TO MARRY
• Loving v. virginia
• Facts: Loving’s were an interracial couple that legally married in DC. They moved
back to Virginia, where their marriage was deemed invalid and illegal. They raised a
violation of the Equal Protection clause and Due Process clause under the 14 th
amendment.
• Holding: Freedom to marry has been recognized as one of the vital personal rights
essential for pursuit of happiness by free men. Marriage is one of the basic civil rights
of man & under our constitution, the freedom to marry or not marry a person of
another race resides with the individual and cannot be infringed upon by the state.
•
FAMILY AUTONOMY
• Troxel v. Granville (O’Connor)
•
Facts: a father of two daughters committed suicide. For the first year, the girls continued regular visits with their
paternal grandparents. The mother ended visitations, and the grandparents sued for visitation rights
•
Issue: whether a statute that allows persons to petition the court for visitation rights with a child and then gives
the petitioned court wholesale authority to decide the issue without giving the parents any weight constitutional?
• Holding: NO.
•
Rule: parents have a fundamental right to make decisions concerning the care and control of their children & any
state interference with that right will be closely scrutinized by the courts.
•
problem here is that the statute was too broad.
•
Compelling government interest = enacting the statute to promote the welfare of the children
•
Restriction necessary to promote the compelling government interest – no because the statute was broad was
not the less restrictive means
REPRODUCTIVE AUTONOMY
• Court has recognized three aspects of reproductive autonomy to be fundamental rights
• The right to procreate
• The right to purchase and use contraceptives
• The right to abortion
• NC Eugenics program
• NC forcibly sterilized thousands of people between 1929 and 1976. State has begun
compensating victims, but some who were sterilized may never receive restitution from the fund
• NC victim, Blackon, had a mental disability and was sterilized at the age 14, her sterilization was
ordered by a judge
• Some won’t receive compensation because the procedure was not done under the eugenics
board of NC
RIGHT TO PROCREATE
•
Skinner v. Oklahoma (Justice Douglas)
•
The oklahoma habitual criminal sterilization act allowed courts to order the sterilization of those convicted two or more times for
crimes involving ‘moral turpitude’
•
Three separate convictions for petitioner
•
Stealing chickens
•
Robbery with firearm
•
Second conviction of robbery with firearm
•
Court instructed the jury that the crimes that he had been convicted were felonies involving moral turpitude and the only question for
the jury was whether the operation of a vasectomy could be performed on him without detriment to his general health
•
Petitioner challenged the act and said it was unconstitutional due to the 14 th amendment
•
Holding:
•
•
Rule: right to procreate is a fundamental right and therefore government imposed involuntary sterilization must meet strict scrutiny
Points: skinner implicitly overruled Bell by recognizing the fundamental right to procreate
RIGHT TO CONTRACEPTION
• Griswold v. Connecticut (Justice Douglas)
• Facts:
• Connecticut law prohibited use of contraception, as well as made it a crime to assist,
abet or counsel a violation of law
• There was a criminal prosecution of Griswold, who was the executive director of
planned parenthood and a physician, who openly ran a planned parenthood clinic for nine
days
• Holding:
• Rule: right to privacy is fundamental right. Intimate relations lie within a zone of privacy
to which the government may not intrude
• Argument should not be upheld under the DPC, instead, right to privacy is implicit in
many of the specific provisions of the bill of rights.
RIGHT TO ABORTION
•
Roe v. Wade (Justice Blackmun)
•
Facts: a woman challenged a Texas law prohibited all abortions except those necessary to save the mother’s life
•
Holding:
•
Rule: the constitution protects a right for a woman to choose to terminate her pregnancy prior to viability – the time at which the
fetus can survive on its own outside the womb
•
Specifically the court rules that the government may not prohibit abortions prior to viability and the government regulation of
abortions had to meet strict scrutiny
•
Prohibiting abortion infringes on a woman’s right to privacy
•
The state has a compelling interest safeguarding health in maintaining medical standards in protecting maternal health after the first
trimester because it was then that abortions became more dangerous than childbirth. The court divided pregnancy into three
trimesters
•
First trimester – state couldn’t speak to this because it had no interest in a fetus that wasn’t viable
•
Second trimester – situation where an abortion in the second stage is more problematic to a woman’s health. The state has an
interest in protecting the woman’s health and can ban them/regulate them
•
Third trimester – state interest in protecting the life of the fetus, outweighs mothers interest
PROTECTION FOR SEXUAL
ORIENTATION AND ACTIVITY
•
Obergefell v. hodges
•
Facts:
•
Same sex couples in ohio, Michigan, Kentucky and Tennessee brought action challenging the constitutionality on those states bans on same-sex marriage
•
Couples alleged violation of the EP and DP clause of the 14 th amendment
•
•
One plaintiff also raised claims under civil rights act
•
Trial court ruled in favor of plaintiff’s
COA ruled in favor of state and same sex couples appealed to SCOTUS
•
•
Issues:
•
Does 14th amendment require a state to license a marriage between two people of the same sex
•
Even fi states limit marriage whether those states must recognize marriage of same sex individuals entered into in other states
Holding:
•
NO
•
Appellate court reversed and held that state’s ban on same-sex marriage did not violate the couple’s rights under the EP clause and DP clause
RIGHT TO TRAVEL
• Saenz v. Roe
• Facts: california enacted a statute that limited the maximum welfare benefits available
to newly arrived residents.
• The scheme limited the amount payable to family that had resided in the state for
less than 12 months to amount payable by the state of the family’s prior residence
• Holding:
• Rule: newly arrived citizens to a state have the same privileges or immunities
enjoyed by others in the same state
GOVERNMENT SPEECH
• Government speech – free speech clause restricts government regulation of
private speech. It does not require the government to aid private speech nor
restrict the government from expressing its views.
• Government speech will typically be upheld if its rationally related to a
legitimate state interest
FREEDOM OF SPEECH/EXPRESSION
• Freedom of speech is not absolute.
• There are some instances where the government can regulate and punish speech
• Freedom of speech should be a fundamental right because:
• Self governance
• Political speech should be the only speech governed by the first amendment
• Discovering truth
• Truth is most likely to emerge from class of ideas
• Promote autonomy
• Essential aspect to personhood and autonomy
CONTENT V. CONDUCT OF SPEECH
• Court has allowed for leeway regulating conduct related to speech, allowing for the
adoption of content-neutral time, place, and manner regulations.
• Regulations that involve a public forum must be narrowly tailored to achieve an important
government interest
• Regulations involving nonpublic forums must have a reasonable relationship to a legitimate
regulatory purpose
• Regulation seeking to forbid communication of specific ideas (content) is less likely
to be upheld than regulation of conduct incidental to speech.
• Content: presumptively unconstitutional to place burden on speech because of its content.
In order to justify a content-based regulation, the government must show it is necessary to
serve a compelling state interest and that it is narrowly tailored to achieve this.
CONTENT BASED V. CONTENT
NEUTRAL
• In order for government to be content-neutral in its regulation, it must be both
viewpoint & subject-matter neutral.
• Viewpoint neutral: government cannot regulate speech based on ideology of message
• Subject-matter neutral: cannot regulate speech based on topic.
• Content neutral = time, place and manner restriction and regulation.
• Intermediate scrutiny test: upheld if it advance important governmental interest unrelated
to the suppression of free speech and does not burden substantially more than necessary
to further interest
• Content based = restriction on particular type of speech being prohibited
• Compelling state interest that is narrowly tailored to achieve that end.
PROBLEMS ARISING IN APPLYING THE
DISTINCTION BETWEEN CONTENT-BASED
AND CONTENT-NEUTRAL
• Does a permissible purpose of law prevent it from being deemed contentbased, even if the content restriction is on the face of the law?
• SCOTUS has indicated that a facial content-based restriction will be deemed contentneutral if it’s motivated by a permissible content-neutral purpose. Court articulated
this rule in Renton v. playtime theatre.
BOOS V. BARRY
•
•
3 petitioners are individuals who wish to carry signs that are critical of the government (soviet union and Nicaragua) on the sidewalks in DC.
Code prohibited the display of any sign within 500 ft of foreign embassy if sign tends to bring that foreign government into ‘public odium’ or ‘public
disrepute’. Respondeat and US alleged that the code was not content based because it was government is not selecting between viewpoints.
•
Issue: whether provision of DC code violates 1st amendment?
•
Content based bc it prohibits political speech, namely negative speech.
•
Procedural history: Petitioners sought court review a decision of the USCOA for DC. Scotus granted certiorari and reversed. International
treaty cannot grant power to congress if constitution prohibits it. Court rejected arguments that the law was necessary to satisfy
international obligation.
•
•
•
Content-based, political speech is emphasized and subject to strict scrutiny.
Holding:
•
Yes. Display clause operates at core of 1st amendment by prohibiting the petitioners from engaging in classically political speech and it’s content
based. Court has previously held that a regulation that doesn’t favor either side of political controversy, nonetheless impressible bc first
amendment hostility to content-based regulation extends to prohibition of public discussion of entire topic.
•
Since code was content based, it required strict scrutiny.
Points:
•
Challenge is the regulation is unconstitutional and it was viewed. Remember first amendment is not absolute.
•
If speech that’s regulated is political in public forum, emphasize it in essay and cite this case.
CITY OF RENTON V. PLAYTIME THEATRES
•
•
•
Facts:
•
In april 1981, city council of Renton enacted ordinance #3526, which prohibited any adult motion picture theatre from locating
within 1,000 ft of any residential zone, single family or multifamily dwelling, church, park and within 1 mile of school. Ordinance
doesn’t ban adult theatres altogether but provides that such theater may not be located within restrictions above.
•
Issue: whether ordinance is designed to serve substantial government interest and allows for reasonable alternative avenues of
communication?
Holding:
•
Yes. Ordinance is content-neutral bc it treats theatres that specialize in adult films differently from other kinds of theatres and is
‘time, manner and place’ regulation. Ordinance is aimed not at content but rather at secondary effects of the theatres on
surrounding community.
•
Content-neutral regulations are admissible if they’re designed to serve substantial government interest and do not limit alternative
avenues of communication unreasonably
Points:
•
time, place and manner regulation: regulation which allows speech, but limits it to certain places and manners
•
this case focuses on adult motion pictures, which is content based. If case would’ve stated that all adult entertainment was
prohibited, the regulation would still be ok bc of the secondary effects it may have.
•
RULE: although the speech is content base, if the government can articulate that the content-based speech is persuaded by
secondary effects, it may be enough for the content-based to be content-neutral if its reasonable place, time and manner
restriction.
•
These regulations are reasonable so long as they’re designed to serve substantial government interest and do not unreasonably
limit alternative avenues of communication
PLEASANT GROVE CITY V. SUMMUM
•
Facts: pioneer park in pleasant grove, Utah contains 15 permanent displays. Summon is religious org that wrote
letter to mayor requesting permission to erect a monument in park containing seven aphorisms of SUMMUN,
which would be similar size to the 10 commandments that had been donated in previous years. Request was
rejected & summon filed complaint and alleged city’s refusal was violation of 1st amendment.
•
•
Holding:
•
•
Issue: whether the free speech clause of 1st amendment entitled a private group to insist that a municipality
permit it to place permanent monument in city park in which others monuments previously erected.
No. although park is traditional public forum, the display is not a form of expression to which forum analysis
applies and instead it’s best viewed as forum of government speech that’s not subject to scrutiny under free
speech clause
Points:
•
Here, we have government speech and having monuments is government way of speech and not subject to 1st
amendment (free speech doesn’t apply to government as long as they don’t violate establishment clause)
VAGUENESS
• Law is unconstitutionally vague if reasonable person cannot tell what speech is
prohibited and what’s permitted.
• This creates a chilling effect which may lead to people refraining from speech, for
example, out of fear that they will be in trouble for violating the law.
• Facially void if you allow for unlimited discretion to be given by an official.
• Unduly vague laws violate the due process clause, thus they will be void for
vagueness.
• The burden is on the challenger that state the regulation is substantially
vague/overbroad
OVERBREADTH
• Law is unconstitutionally overbroad if it regulates substantially more speech than
the constitution allows to be regulated, and a person to whom the law
constitutionally can be applied can argue it would be unconstitutional as applied to
others.
• If it prohibits substantially more speech that ‘in any manner’ interrupts police from
performance of his duties.
• Law banning all door-to-door solicitations is overbroad.
• In other words, area of law where government can regulate speech, law that
regulates more expression than what the constitution allows to be restricted is to
be declared unconstitutional on overbreadth grounds.
• Analysis: look at whether or not statute is substantially overbroad
COATES V. CITY OF CINCINNATI
• Facts
• Coates was student involved in demonstration where pickets were involved in labor
dispute. City of Cincinnati had ordinance making it a criminal offense for three or more
people to assemble on sidewalks and conduct themselves in an annoying manner.
• Issue: whether ordinance is facially unconstitutional
• Holding:
• Yes. Ordinance is unconstitutionally vague bc it subjects the exercise of right to
assemble to unascertainable standard. Broad bc it authorizes punishment of conduct
that constitution protects. Conduct that annoys some doesn’t annoy others. Vague bc it
didn’t specify conduct. Violative of free assembly and association.
SHAD V. BOROUGH OF MOUNT EPHRAIM
•
•
Facts:
•
Appellants operated adult bookstore and amusement licenses issued to permit store to install coin-operated devices where
customer would sit in booth and insert coin and then watch adult films. Store added another feature where you could insert coin
and watch live nude dancer behind glass panel. Mount Ephraim ordinance prohibits live entertainment including nonobsense, nude
dancing & prohibits wide range of expression held to be within protection of 1 st and 14th amendment.
•
Issue: whether law is overbroad and unconstitutional
Holding:
•
Yes. Court looked at two major aspects to overbreadth doctrine.
•
Law must be substantially overbroad Must be realistic danger that the statute itself will significantly compromise recognized 1st
amendment protections of parties not before the court for it to be facially challenged on overbreadth grounds
•
•
Court concluded law was substantially overbroad.
Person to whom law constitutionally may be applied can argue that it would be unconstitutional as applied to others.
•
Exception to standing doctrine.
•
When person is engaging in conduct that violates constitution and convicted bc the law was constitutionally applied but law
on its face was unconstitutional, person can challenge law on its face and if its facially unconstitutional, it’ll be struck down.
•
•
‘chilling effect’ – when overbroad laws chill significant constitutionally protected speech and that individuals to whom the
law is unconstitutional may refrain from expression rather than bring challenge to justice.
Overbreadth doctrine is ‘strong medicine’ bc it involves the facial invalidation of law and allows individuals standing to raise
claims of others not before the court
BOARD V. JEWS FOR JESUS
•
•
Facts:
•
LAX board adopted resolution #13787 ‘lax airport is not open for 1st amendment activities by any individual/entity’
•
Snyder was minister and was passing out religious material. Snyder was stopped and told to leave, so he did. Filed claim
for 1st amendment violation.
•
Issue: whether resolution banning all 1st amendment activities at LAX violates 1st amendment.
Holding:
•
Yes. Court looked at overbreadth doctrine – an individual whose own speech/conduct may be prohibited is allowed to
challenge statutes on its face ‘bc it also threatens others not before the court’
•
For statute to be invalidated on its face, overbreadth must be substantial. Must be realistic danger that statute itself
will significantly compromise recognized 1st amendment protections of parties not before court. Here, court
reasoned that on its face, the resolution reaches the universe of expressive activated by prohibiting all protected
expressions.
•
Resolution doesn’t reach the activity of those at LAX but also prohibits even talking/reading/wearing
buttons/symbolic clothing.
PRIOR RESTRAINTS
• Prior restraint is a court order/administrative system that keeps speech form
occurring. Prior restraints are not favored; the court would rather allow
speech and then punish it if it were to be unprotected
• Court will uphold prior restraints if special harm would otherwise result.
• Prior restraints must be narrowly tailored to achieve some compelling, or at
least significant, government interest.
• Court has also required that certain procedural safeguards be included in any
system of prior restraint
LICENSE AS PRIOR RESTRAINT
•
•
If law is valid on its face, there are safeguards and standards and you don’t get a permit, you cannot challenge it
•
Cannot challenge the denial of license as arbitrary and unconstitutional. When the licensing system is valid on
its face and when he proceeded without license rather than channel its denial
•
Collateral bar rule applies.
If unconstitutional on its face, you don’t have to get a permit once you are fined, then you can challenge it
•
When discussing permits and license the court looks for:
•
Whether there is unfettered discretion
•
Procedurals in place to challenge the denial of it
•
Is it broad
•
Request process
UPHELD PRIOR RESTRAINTS
•
National security
•
•
Preserving fair trial
•
•
Permissible where the parties have contractually agreed to the restraint.
Military circumstances
•
•
Preserving fair trial may be sufficient basis for prior restraint, but will only be upheld if this is the only sure way of preserving
a fair trial
Contractual agreement
•
•
Sufficient harm justifying prior restraint. Harm must be more than theoretical though.
Interests of maintaining discipline among troops and efficiency of operation on military base justify requirement that persons
on base obtain permission before circulating petitions.
obscenity
•
Court has held that the governments interest in preventing dissemination of obscenity is sufficient to justify prior restraint.
PROCEDURAL SAFEGUARDS FOR PRIOR
RESTRAINTS
• SCOTUS has held that no system of prior restraint will be upheld unless it
provides the person whose speech is being restrained certain procedural
safeguards.
• Standards must be ‘narrowly drawn, reasonable and definite’ to include only
prohibitable speech.
• If restraining body wishes to restrain dissemination of item, it must promptly seek an
injunction.
• There must be a prompt and final judicial determination of validity of the restraint.
• GOVERNMENT BEARS BURDEN OF PROVING SPEECH INVOLVED IN
UNPROTECTED.
NEAR V. MINNESOTA
•
•
•
Facts:
•
Court orders a prior restraint. Near was a newspaper editor and was sued by county prosecutor to enjoin him from
publishing the Saturday press, which charged that a jewish racketeer-controlled Minnesota’s gambling, bootlegging, and
racketeering and that Minnesota police weren’t doing their jobs. Minnesota had a statute that prohibited malicious,
scandalous, and defamatory periodicals may be abated as a public nuisance.
•
Issue: whether a court order enjoining publication of defamatory speech violate the first amendment?
Holding:
•
Yes.
•
Rule: prior restraints against a publication are invalid unless they (1) protect national security during wartime; (2) restrict
obscenity; or (3) protect against incitement to violence, or forcible overthrow of government
•
Court held unconstitutional. & Court noted prior restraints are not presumed invalid but rather maybe valid on case by
case basis
Points:
•
Here, court order, which is an injunction is the prior restraint. You can’t violate court order and challenge the
contempt
NY TIMES CO V. US
Facts: Court orders as prior restraint
• ‘pentagon papers’ case. NY times obtained stole, classified report on Vietnam war and
published it. US government sued to enjoin publication due to national security concern
• Issue: whether government can enjoin publication of classified information to protect national
security?
• Holding:
• No.
• Rule: if the government may impose prior restraint to protect national security, the burden of
proof is very high. Prior restraint bear heavy burden of showing that such prior restraint has
justification
• Prior restraints bear a heavy presumption of unconstitutionality and therefore the government
carries a heavy burden of showing that such prior restraint has justification
LOVELL V. CITY OF GRIFFIN, GA
•
•
•
A city ordinance provided that distributing literature of any kind within the city limits of Griffin without permission from the City
Manager shall be deemed a nuisance and punishable as an offense. Alma Lovell distributed religious pamphlets setting forth the
gospel of the Jehovah without permission. She was convicted under the statute.
•
Issue: whether the city ordinance requiring permission to distribute literature violates the first amendment?
Holding:
•
Yes
•
The ordinance prohibits the distribution of materials of any kind at any place without permission from the City. Court held the
ordinance was invalid on its face.
•
The prohibitions of the ordinance are not limited to ways which might be regarded as disruptive to the public order or obscene.
Case is about limiting the discretion of government officials
Points:
•
The reason this case is unconstitutional is bc the ordinance is extremely overbroad
•
When discussing permits and license the court looks for:
•
Whether there is unfettered discretion
•
Procedurals in place to challenge the denial of it
•
Is it broad
•
Request process
•
You can also argue that the application of this prior restraint was facially const. but the decision to deny the permit was based on
speech, then you can raise discrimination content-based and challenge under strict scrutiny
•
Prior restraints held to an intermediate scrutiny
WATCHTOWER V. VILLAGE OF
STRATTON
•
Facts: The Village of Stratton enacted an ordinance prohibiting “canvassers” from going in and upon private
property to promote any cause without first obtaining a permit from the mayor’s office. Permit was free and
the ordinance also allowed residents who desired to be left alone to complete at “No Solicitation Registration
Form”. Plaintiffs watchtower bible and tract society of NY publishes and distributes bible and coordinates the
preaching activities of Jehovah witnesses nationwide. The distributed the religious material door to door for
not cost and were charged bc they did not apply for the permit before engaging in the door to door
solicitation
•
Issue: whether the town ordinance requiring a permit to engage in door to door activities violate the first
amendment?
•
Holding: yes.
•
Rule: a law requiring a permit before engaging I door to door activities on private residential property violates
the right of free speech.
• The court reasoned that in this case the ordinance was enacted to ensure safety of the town’s residents by
preventing fraud and crime against them and protecting their privacy. The court concluded that the ordinance
impinges the free speech of those disseminating their ideas and its not narrowly tailored to
CITY OF LAKEWOOD V. PLAIN DEALER
PUBLISHER
•
•
Facts
•
Plain dealer challenged the constitutionality of city ordinance that authorized its mayor of the city of lakewood
to grant or deny applications made by the publishers seeking permission to place newsracks on public
property. Ordinance merely required the city’s mayor to provide an explanation in the event of a permit denial
while empowering him to subject all permit approvals to whatever terms and regulations he deemed necessary.
Lower court ruled that ordinance was constitutional but COA reversed and held that the ordinance was
unconstitutional.
•
Issue: whether the city ordinance violates the freedom of speech rights as protected by the 1st amendment
Holding
•
•
Yes. Court held that the ordinance was unconstitutional on its face since it gave the mayor unfettered
discretion to discriminate against permit seeking based on content of their publications and viewpoint. While
cities may impose such ordinance for licensing for newsracks on public property, it may not use language which
is so open-ended to give city officials unlimited subjective discretion over permit approvals.
Points
•
Here, chilling effect, unfettered discretion and no standards
TYPES OF UNPROTECTED AND LESS
PROTECTED SPEECH.
• There are certain types of speech in which the government can prohibit and
punish.
• Government can generally regulate commercial speech if intermediate scrutiny
is met.
• Court has allowed content-based restriction for certain types of speech.
CONTENT-BASED RESTRICTIONS ALLOWED
FOR THE FOLLOWING SPEECH TYPES:
• Speech that creates clear and present danger of imminent lawless action
• Constitutes fighting words as defined by narrow, precise statute
• Speech is obscene (child pornography)
• Speech constitutes defamation
• Speech violates regulation against false or deceptive advertising – commercial
speech is protected and cannot be proscribed to help private interest
• Government can demonstrate a compelling interest in limitation of first
amendment activity
CLEAR AND PRESENT DANGER OF
IMMINENT LAWLESSNESS
• A state cannot forbid advocating the use of force or law violation unless such
advocacy:
• 1. is directed to producing/inciting imminent lawless action
• II. Is likely to produce or incite such action (Brandenburg v. ohio)
• Allows for sanctions. The test allows for sanctions against speech causing demonstrable
danger to important government interest. Disclosure of US intelligence operations &
personnel is ‘clearly not protect’ speech.
• Compelling justification test. Employed to hold unconstitutional the Georgia legislature’s
refusal to seat Julian Bond, an elected black representative, where bond’s speeches, critical
of US policy of Vietnam and the draft, led the legislature to doubt his fitness and ability to
take oath of office in good faith.
SCHNECK V. US
•
•
Facts:
•
During WWI congress passed the espionage act of 1917 which makes it a crime during wartime to
‘obstruct the recruiting or enlistment service of the US’ among other activities which hinder the war.
Penalty was up to 20 years in jail and a $10,000 fine. Schneck was an anti-draft protester who
circulated anti-conscription leaflets. Leaflets said conscription violated 134th amendment that
conscripts were littler better than convicts, that conscription was despotic and monstrous and more.
The US charged Schneck with conspiring to violate the act by causing/attempting to cause
insubordination in the armed services. He was convicted and appealed.
•
Issue: whether an anti-draft speech, made during wartime is protected by the first amendment?
Holding: No
•
Rule: the first amendment does not protect speech which is used under such circumstances and is of
such nature it creates a ‘clear and present danger of inciting illegal activity’
•
Clear and present danger test: 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 (illegal acts)
•
State cannot forbid advocating the use of force/law violation unless such advocacy:
•
Is directed to producing/inciting imminent lawless action
•
Is likely to produce/incite such action
BRANDENBURG V. OHIO
•
Facts
•
•
•
a leader of Ku Klux Klan group was convicted under the Ohio criminal syndicalism law. Evidence of his incitement was a film of the
events at a Klan rally, which included racist and anti-Semitic speech, and several items that appeared in the film, including a number
of firearms.
•
Issue: may the government ban advocacy of illegality
Holding:
•
A conviction for incitement for incitement under Brandenburg only is constitutional if several requirements are met: imminent harm,
a likelihood of producing illegal action, and an intent to cause imminent illegality.
•
In other words:
•
Intent to incite action;
•
Action is imminent and lawless;
•
Imminent and lawless action is likely to occur.
•
Any statue which fails to draw a distinction between punishable incitement to imminent lawlessness and (protected) abstract
advocacy would violate 1st amendment
•
Here the state doesn’t draw distinction bc it punishes mere advocacy & assembly for the purpose of advocacy.
Points:
•
Incitement is still unprotected speech but this Brandenburg provides us with
•
Test:
•
Conviction for incitement under Brandenburg is constitutional only the following requirements:
•
Imminent harm
•
A likelihood of producing illegal action &
•
Intent to cause imminent illegality
FIGHTING WORDS
• True threats: first amendment does not protect ‘true threats’ – statements meant
to communicate an intent to place an individual or group in fear of bodily harm.
• Virginia v. black – state may ban cross burning done with intent to intimidate, as this is likely
to inspire fear of bodily harm due to historical meaning
• States may ban words likely to incite physical retaliation.
• States are free to ban ‘fighting words’ (personally abusive epithets that are likely to incite
immediate retaliation), but it must be narrowly read.
• Statutes regulating fighting words tend to be overbroad/vague.
• Exists in theory. Court rarely upholds punishment for use of words bc statutes define
punishable speech as ‘abusive language’, ‘annoying conduct’, etc.
• Statutes cannot be viewpoint-based – limits hate crime legislation
• SCOTUS generally will not tolerate fighting words statutes restrictions that are designed to
punish only certain viewpoints.
CHAPLINSKY V. NEW HAMPSHIRE
•
•
Facts:
•
Chaplinsky was charged with violating NH public law. He was a jehovah’s witness who was distributing literature on the streets of
Rochester. Citizens complained to the city marshal and Chaplinsky was warned by him. Riot broke out and Chaplinsky repeated
words “god damned racketeer, damned fascist, and whole government of Rochester are fascists”
•
Issue: whether the statute punishing ‘fighting words’ violates the first and fourteenth amendment
Holding:
•
No
•
Rule: 1st amendment does not protect speech that constitutes fighting words
•
Where it is likely to cause a violent response against the speaker and
•
Where its likely to inflict immediate emotional harm
•
The court reasoned that the statute was narrowly drawn and was limited to define and punish specific conduct lying within the use
of the state’s power
•
Fighting words: those which by their very utterance inflict injury or tend to incite an immediate breach of peace. The court upheld
the conviction
GOODING V. WILSON (INVALIDATED AS
VAGUE OR OVERBROAD)
•
•
•
Facts:
•
Appellee was convicted under the GA statute for using ‘opprobrious words and abusive language’. Appellee state the fighting words
tending to cause a breach of peace ‘white SOB, I’ll kill you’ ‘you SOB, ill choke you to death’
•
Issue: whether the statue prohibiting opprobrious words and abusive language as a breach of peace is constitutional
Holding:
•
No
•
The statue must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of
application of protected expression. Government may regulate in area only with narrowly specificity. Here, the court reasoned
that the ordinance was overbroad since it was held that all abusive language is fighting words.
•
Dissent: Blackmun
•
Doesn’t think the statutes words are overbroad
Points
•
In this case, the appellees case made it to SCOTUS bc he filed a writ of habeas corpus with the district court that was appealed to
federal court and then the federal court of appeals to the SCOTUS
•
Even if Wilson’s conduct would have amounted to fighting words, the conviction would still be overturned bc the statute was
overbroad and therefore unconstitutional on its face
RAV V. CITY OF ST. PAUL (NARROWING
FIGHTING WORDS AS CONTENT-BASED
RESTRICTION)
•
•
•
Facts:
•
Petitioners were teens who were prosecuted under the St. Paul bias motivated crime ordinance for burning cross in black family’s
yard. Statute, which prohibits the display of a symbol, which ‘arouses anger, alarm or resentment in others on the basis of race,
color, creed, religion or gender. Petitioners moved to dismiss stating the ordinance was unconstitutionally overbroad. Trial court
dismissed but on appeal Minnesota supreme court reversed stating that the law was limited to only fighting words and it was
narrowly tailored for accomplishing a compelling government interest in protecting against bias threats & it was limited to only
fighting words.
•
Issue: may the government ban speech based on bias?
Holding:
•
No
•
Rule: the government may not regulate speech based on hostility or favoritism.
•
This is low value speech (fighting words) & cant be made as a vehicle for content discrimination. Some expressive content is not
protected under 1st amendment bc it is worthless or of de minimis value to society. Government may regulate content
discrimination where the distinctions advances the reason why the category is unprotected. May also regulate when content base
discrimination has secondary effects.
Law will be upheld only if it doesn’t draw a content-based distinction
RACIST SPEECH (FIGHTING WORDS
CONTINUATION)
• Group libel is not protected by the first amendment
• Expression of hate is protected speech and the government may not outlaw
symbols of hate.
• First amendment does not protect conduct simply because it happens to be
motivated by person’s belief/views. It’s unconstitutional to increase defendant’s
sentence merely bc it was proved that he belongs to an organization that
advocates racism, for example.
VIRGINIA V. BLACK
• Facts: D’s convicted for violating cross-burning statute on separate occasions.
• Issue: whether the state of Virginia statute banning cross-burning with ‘an intent to intimidate a
person/group; violates the first amendment?
• Holding: yes.
• Rule: state statute banning cross burning with the intent to intimidate another person is not in its
unconstitutional infringement on free expression, but the establishment of criminal intent from the
prohibited act itself violates the first amendment.
• Court held that state may ban cross-burning carried out with the intent to intimidate, however
the virginia statute treating any cross-burning as prima facie evidence of intent to intimidate
renders the statute unconstitutional
• Court also believe that the provision had chilling effect because it would prosecute and
potentially convict someone engaging in lawful political speech by cross-burning
HOSTILE AUDIENCE CASES.
• Speech, though not absolute, is nevertheless protected against censorship/punishment, unless
shown likely to produce a clear and present danger of serious substantive evil that rises far
above inconvenience, annoyance or unrest.
• Who do you control?
• audience who is displeased with the message or
• Do you silence the speaker
• Essays:
• Look at the balancing and where the suppression of the messenger will be permissible
• Is there evidence of imminent threats of riots or violence
• What are cops doing? Are they controlling the crowd or sitting silently?
• Look for someone speaking and the crowd is upset, so cops try to silence speaker
FEINER V. NEW YORK
•
•
Feiner’s was convicted of disorderly conduct for addressing an open-air meeting on a street corner. Police received a
phone call complaint concerning the meeting and responded to the location. Once arrived, they saw a crowd of about
70-80 people of both races and Feiner was standing on a wooden box. Feiner made statements in his speech about
Truman, the american legion, and the mayor of Syracuse but the purpose of his speech was to get people to attend a
meeting that evening at the Syracuse hotel.
•
At first, police never arrested Feiner but asked him twice to stop asking statements. Bc of the feeling that existed in the
crowd, both for an against the speaker, the offices stepped in to prevent the fight and arrested Feiner.
•
Issue: whether the police had the authority to arrest a speaker whose speech causes audience annoyance or unrest?
Holding
•
Yes
•
Rule: when a speaker incites the audience to imminent riot, police may stop his speech.
•
The court reasoned that the findings of the state court in regard to the situation and the imminent of greater disorder
coupled with Feiner’s deliberate defiance of the police officers was sufficient to convince the court the ruling of the
lower court was correct. Basically, the court decided this case on the facts.
OBSCENITY
• Unprotected speech. The court has defined obscenity as description or
depiction of sexual conduct that, taken as a whole, by the average person,
applying contemporary community standards:
• Appeals to prurient interest in sex
• Portrays sex in patently offensive way; and
• Does not have serious literary, artistic, political, or scientific value – using a national,
reasonable person standard, rather than the contemporary community standard.
ELEMENTS OF OBSCENITY: APPEAL TO
PRURIENT INTEREST
• Appeal to prurient interest. Dominant theme of material considered as a whole
must appeal to the prurient interest in sex of the average person.
• Scotus has found this includes appeals to shameful or morbid interest in sex, but do
not incite lust.
• Average person: both insensitive and sensitive adults may be included in determining
contemporary community standards, but kids are not considered part of the relevant
audience.
• Material designed for deviant group: where the allegedly obscene material is designed for
and primarily disseminated to a clearly defined deviant sexual group (sadist), rather than the
public at large, the prurient appeal requirement is satisfied if the dominant theme of
material, taken as whole, appeals to the prurient interest of that group
ELEMENTS OF OBSCENITY – PATENTLY
OFFENSIVE
• Community standard
• Material must be patently offensive in affronting contemporary community standard
regarding the description or portrayal of sexual matters
• National standard not required
• Statewide standard is permissible but not mandatory. Juror may draw on knowledge
of the community/vicinity from which eh comes, and the court may either direct jury
to apply ‘community standards’ or define standard in more precise geographic terms.
MILLER V. CALIFORNIA
•
•
Facts:
•
California penal code bans knowingly distributing obscene matter. Mail order pornographer Miller was convicted for mailing
unsolicited ads for pornographic books. Miller appealed and alleged that the penal code violated the first amendment.
•
Issue: whether the state may restrict obscenity
Holding:
•
Yes
•
Rule: the government may regulate obscene material which:
•
Depicts or describes sexual conduct
•
Which conduct is defined specifically by state law
•
Would be found to appeal to the ‘prurient interest’ by average person apply contemporary communist standards
•
Portrays sexual conducti n a patently offensive way &
•
Has no serious literary, artistic, political or scientific value
ELEMENTS OF OBSCENITY – LACKING
IN SERIOUS SOCIAL VALUE
• The fact that the material may have some redeeming social value will not
necessarily immunize it from finding of obscenity. It must have serious literary,
artistic, political or scientific value, using a national standard.
ROTH V. US
•
•
Facts:
•
Federal obscenity statute prohibits the mailing of “Every obscene, lewd, lascivious, or filth book, pamphlet,
picture, paper, letter, writing, or other publication of an indecent character”.
•
Issue: whether the federal government obscenity statute violates the provision of the 1st amendment
Holding:
•
No
•
Court has always assumed that obscenity is not protected by the freedoms of speech and press. Government
may regulate obscene speech without implicating the 1st amendment
•
Obscene material is material which deals with sex in a manner appealing to prurient interest – material having
tendency to excite lustful thoughts
•
Court held that the statute applies the proper standing for judging obscenity and do not offend the const.
safeguards against convictions based upon protected material or fail to give mean in acting adequate notice of
what is prohibited
CHILD PORNOGRAPHY
• To protect minors from exploitation, government may prohibit the sale or
distribution of visual depictions of sexual conduct involving minors, even if it
would not be obscene had it not involved children.
• Government may also prohibit offers to provide (and obtain) material
depicting children engaged in sexually explicitly conduct and does not
criminalize a substantial amount of protected speech
• Such offers of material is unlawful to possess have no first amendment
protection
• Simulated photos of minors cannot be barred.
NEW YORK V. FERBER
•
•
Facts
•
This case is about a New York criminal statute that prohibits a person from knowingly promoting sexual performances by children
under the age of 16
•
Issue: whether this statue is constitutional?
Holding:
•
Yes
•
Rule: state may prohibit the distribution of material depicting children engaged in sexual conduct without requiring that the material
be legally obscene
•
Court reasoned that states are entitled to greater leeway in regulation of pornographic depictions of children for the following
reasons
•
•
State has an interest in safeguarding the physical and psychological well-being of minors and this is a compelling interest
•
The distribution of photographs and films depicting sexual activity of minors can relate to sexual abuse.
Court believed that the miller standard was insufficient as applied to child pornography
ASHCROFT V. FREE SPEECH COALITION
•
•
Facts:
•
Statue in question extends a federal prohibition against child porn to sexually explicitly images that appear to depict
minors but were produced without using any real children
•
Issue: whether the child pornography prevention act abridges freedom of speech?
Holding:
•
Court focused on section B & D of statue
•
Section B:
•
•
Section D: punishment for crime
•
•
Court held that this provision that prohibits the depiction including any photograph as falling within the statue
Court reasoned that this part of the statute provided a chilling effect because even minor punishments can chill
protected speech.
Court held that the statute is overbroad and unconstitutional
PARIS ADULT THEATRE V. SLATON
• Facts:
• Petitioners are two adult theatres in atlanta. The DA and a solicitor filed complaint alleging
that the petitioners were exhibiting to public for paid admission two allegedly obscene films,
contrary to the Georgia Code
• issue: whether a ban on exhibiting obscenity to consenting adults violates their constitutional
right to privacy?
• Holding:
• No.
• Rule: states may restrict commercial obscenity, even that viewed by consenting adults, in public
accommodations, to further the legit interest in maintaining order and morality.
• The court held that there is a legitimate state interest at stake in stemming the tide of
commercialized obscenity, even assuming it is feasible to enforce effective safeguards against
exposure to juveniles
COMMERCIAL SPEECH
• Commercial speech in general is protected by first amendment.
• False advertising is not protected.
• In determining whether a regulation of commercial speech is valid, there is a 4 step
process used by SCOTUS.
• First, determine whether commercial speech concerns a lawful activity and is not
misleading/fraudulent. If it is a lawful activity & not misleading or fraudulent, the regulation
will be valid only if it:
• Serves a substantial government interest
• Directly advances the asserted interest; and
• Is narrowly tailored to serve substantial interest.
COMMERCIAL SPEECH NOT PROTECTED
• Outlaw advertising of illegal activities
• False and deceptive advertising
• True advertising that inherently risks becoming false or deceptive
• Limits commercial advertising to achieve other goals
VIRGINIA STATE BOARD OF PHARMACY V.
VIRGINIA CITIZEN CONSUMER COUNCIL
•
•
Facts: This case overturned valentine v. Christensen, which held that commercial speech was not protected by the first
amendment
•
Plaintiffs-appellees attack the portion of the Virginia law (pg 1428) and alleges that it is violation of the 1st and 14th
amendment. The statute provides that a pharmacist licensed in the state of VA is guilty of unprofessional conduct if he
“publishes, advertises, or promotes, directly or indirectly, in any manner whatsoever, any amount of price, fee, premium
or discount for any drugs which may be dispensed only be prescription. The appellants allege that the advertisement of
prescription prices is outside the protection of the 1st amendment due to the court’s ruling in Valentine v. Christensen
•
Issue: whether the communication of the advertisement is wholly outside of the protection of the first amendment
Holding:
•
NO
•
Rule: commercial speech is protected by the first amendment so long as it is not misleading or doesn’t promote illegal
product or enterprise.
•
Court held that commercial speech is protected by the 1st amendment with exceptions. The court examined where the
material contained a public interest and looking at the interest to the advertiser and consumer.
BOLGER V. YOUNG DRUG PRODUCTS
•
•
Facts:
•
Young drug product was a contraceptive marker who wished to mail several unsolicited pamphlets, flyers, promoting
drugstore products especially prophylactics. Federal statue prohibited mailing unsolicited advisements for
contraceptives. Youngs sued to declare the statute unconstitutional but district court found that young’s speech was
commercial speech and therefore not protected under the 1st amendment.
•
Issue: whether a government can regulate informational advertising as ‘commercial speech’?
Holding:
•
No
•
Rule: commercial speech is a communication which:
•
Does no more than propose a commercial transaction or
•
Is an advertisement and
•
References specific products and
•
Is mailed for economic motivations
CENTRAL HUDSON GAS & ELECTRIC CORP
V. PUBLIC SERVICE COMM’N OF NY
•
•
Facts:
•
During a fuel shortage, energy regulatory agency public service commission of NY ordered a regulated energy utility to cease all advertising that ‘promotes the use of
electricity’. After the shortage had passed, commission decided to continue the ban. Central Hudson gas is an eclectic company challenged the ban alleging that it was
a violation of the first amendment
•
Issue: whether the government ban on advertising electric utilities in order to conserve energy was violative of the first amendment
Holding
•
No
•
Rule: non-deceptive/non-illegal advertising may be regulated if:
•
The speech advertised illegal activities or constituted false or deceptive advertisement that is unprotected by the first amendment
•
•
Example of advertising for an underground lottery that is illegal – this is illegal and not a constitutionally protected activity
The restriction is justified by ‘substantial governmental interest’
•
Example: look at the government interest and if it’s a substantial interest
•
The restriction directly advances that interest and
•
The regulation is the least restrictive method needed to achieve that interest
•
Look to see whether the regulation is the least restrictive means or can it be done some other way
DEFAMATION
• First amendment places restrictions on the ability of government to grant
recovery where the person suing is a public official/figure or where the
defamatory statement involves an issue of public concern.
• Plaintiff must prove not only the elements of defamation, but also that the
statement was false and the person making the statement was at fault to some
degree in not ascertaining the truth.
• Falsity: plaintiff must prove by clear and convincing evidence that the statement
made was fault
• False statement must be viewed by reasonable person as statement of fact, rather
than opinion or parody.
PUBLIC OFFICIAL/FIGURE &
DEFAMATION
• Public figure: general fame/notoriety or involvement in particular controversy
(gertz v. welch)
• Public official may not recover for defamatory words relating to is official
conduct or matter of public concern without clear and convincing evidence
that the statement was made with ‘actual malice’.
• Actual malice (NY Times v. Sullivan)
• Knowledge that statement was false or
• Reckless disregard as to its truth or falsity.
NY TIMES V. SULLIVAN
•
•
Facts:
•
Sullivan was one of the people elected as commissioner and brought a civil libel action against four individual
petitioners. The ad was located n the NY times & some info was inaccurate.
•
Issue whether this rule of liability, as applied to an action brought by a public official against critics of his official
conduct, abridges the freedom of speech of 1st and 14th amendment
Holding:
•
Court held that the law was inconsistent.
•
Rule: there are four requirements
•
Plaintiff must be a public official or running for public office
•
Plaintiff must prove their case with clear and convincing evidence
•
This is higher than other civil cases which the preponderance of evidence
•
Plaintiff must prove falsity of the statement
•
Plaintiff must prove actual malice
•
Actual malice the defendant knew that the statement was false or acted with reckless disregard of
truth
PRIVATE INDIVIDUAL SUING ON MATER
NOT FOR PUBLIC CONCERN
• SCOTUS has not imposed constitutional restrictions on defamation actions
brought by private individuals that do not involve a matter of public concern.
Hence, presume and punitive damages can be recovered even if no actual
malice is established.
PRIVATE INDIVIDUAL SUING ON
MATTER OF PUBLIC CONCERN
• At least negligence is required
• Limitations are not as great as those established for public officials and public
figures.
• When defamatory statement involves matter of public concern, 2 restrictions
on private plaintiffs (Gertz):
• Prohibits liability without fault
• Restricts recovery of presumed or punitive damages
GERTZ V. WELCH
•
•
Facts:
•
Nelson was killed by a chicago police officer Nuccio. Gertz was the attorney for the nelson family. The
american opinion put out a paper called “FRAME-UP” and demonstrated that the testimony against Nuccio at
his criminal trial was false and that his prosecution was part of the Communist Campaign.
•
Issue: whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is
not a public individual?
Holding:
•
We hold that as long as they do not impose liability without fault (meaning strict liability) the States may define
for themselves the appropriate standard of liability of for a publisher or broadcaster of defamatory falsehood
injurious to a private individual
•
Also, states may not allow recovery of presumed or punitive damages, at least when liability is not based on a
showing of knowledge of falsity or reckless disregard for the truth
•
You have to have actual malice if you are trying to get presume or punitive damages
DUNN & BRADSTREET V. GREENMOSS
•
•
Facts:
•
Private individual and private concern
•
Dunn and Bradstreet were a credit reporting agency. On July 26, 1976 Dunn sent a report to 5 different
subscribers indicating that Greenmoss Builders, Inc. had filed a voluntary petition for bankruptcy. Report was
false and grossly misrepresented greenmoss’s assets and liability. President of greenmoss learned f this
information and Dunn sent notice to the 5 subscribers that stated that one of Greenmoss’s former employees,
not the company itself had filed for bankruptcy ad that the company “continued in business as usual.
•
Issue: whether the rule articulated in Gertz applies when the false and defamatory statements do not involve
matters of public concern.
Holding
•
•
The court balanced the state’s interest in compensating private individuals for injury to their reputation against
the 1st Amend interest in protecting this type of expression.
Points:
•
When there is a private individual and private matter a state can say that one is entitled to punitive a damage
even if they don’t show actual malice.
•
NY times gives us what the constitution proposes for defamation
INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS
• Damage actions by private individuals for IIED are subject to the first
amendment rights of defendants if the speech relates to matter of public
concern, despite its ‘outrageous’ and ’particularly hurtful’ quality.
• Snyder v. Phelps established this, and hustler magazine v. falwell demonstrated
it
SNYDER V. PHELPS
•
•
Phelps founder the westboro Baptist church that believed that God hates and punishes the US for its tolerance
of gays, especially in the military. Synder’s son was killed in iraq. On the day of the memorial service, the
church congregation picketed on public land adjacent to the streets near the funeral service. Congregation
notified authorities in advance of its intent to picket and complied with police instructions for staging. Synder
didn’t see the pickets but saw it later that evening on the news. Snyder filed a suit for IIED against phelps and
his daughter and the trial court awarded daamges. Phelps appealed.
•
Issue: whether the first amendment shields church members from tort liability for their speech in this
particular case?
Holding:
•
Yes
•
Rule: there is no liability for IIED for speech that would be otherwise protected b the amendment
•
The court reasoned that this was a matter of public concern and that the congregation was on public property.
Even though speech was planned bc of the funeral, it didn’t disrupt the funeral. The court said that this is an
area of speech that the government may regulate via a time, place, and manner regulation.
•
However, MD’s regulation was enacted prior to the lawsuit
HUSTLER MAGAZINE V. FALWELL
•
•
Falwell is a nationally known minister. He sued hustler magazine & publisher for privacy invasion and libel and
IIED. Hustler’s editors chose Falwell as the featured celebrity and drafted an alleged interview with him in
which he states that his “first time: was during a drunken incestuous rendezvous with his mother in an
outhouse. Hustler portrayed Falwell and his mother as drunk and immoral and suggest that Falwell is a
hypocrite who preaches only when he is drunk.
•
Issue: whether a public figure may recover damages for IIED caused by the publication of an ad parody
offensive to him, and doubtless gross and repugnant in the eyes of most?
Holding: No
•
The court held that the recovery for IIED had to meet the NY Times standard.
•
The court concluded that public figures and officials may not recover for IIED by reason of publication such as
this one without showing that the publication contains false statement of fact which was made with “actual
malice,” with knowledge that the statement was false or with reckless disregard as to whether or not it was
true
• REMEMBER – PUBLIC FIGURES ARE FAIR GAME
PUBLIC DISCLOSURE OF PRIVATE FACTS
• Cox broadcasting v. Cohn
•
•
Chon’s daughter was a rape victim who didn’t survive. During the trial, reporter was there covering incident
for his employer and learned of the victims name from an examination of indictments in the courtroom. Cox
broadcasting aired the report and the report named the victims of the crime. Cohn’s sued alleging that his
right to privacy had been violated.
•
Issue: whether state may extend a cause of action for damages for invasion of privacy caused by publication of
the name of a deceased rape victim, which was publicly revealed in connection with crime?
Holding:
•
No
•
State may not punish a person for publishing information that was obtained in connection with public
prosecution and inspection. The court reasoned that the individuals in society whom have limited resourced
and time, rely upon the press to bring those facts. Also, without the media and press people wouldn’t be able
to vote intelligently or register their opinions
CONDUCT THAT COMMUNICATES
SPENDING MONEY ON POLITICAL
SPEECH.
•
Citizens united v. Federal election commission
•
•
•
Facts:
•
Citizens united released a documentary about Hillary Clinton, who was running for president at the time of the release. This
documentary was critical of her. Ads were played & violated a law that stated expressly advocating the election or defeat of a
candidate or to broadcast electioneering communications within thirty days of a primary election and sixty days of general election.
Citizens wanted this 30-day window provision removed – stemmed from where the money was coming from.
•
Issue: whether prohibiting advertisements for the documentary film violated the non-profit corporation filmmaker’s first amendment
rights
Holding:
•
Yes
•
Rule: the government may not suppress political speech on the basis of the speaker’s corporate identity. No sufficient government
interest justifies on limits of political speech of either for profit or non-profit
•
The court overruled the Austin case – this case allowed banning the political speech of millions of small corporations
•
Government has no business regulating political speech.
•
Disclosures are constitutional – the more information the people have, the more it helps people know and filter the weight you’re
giving the message.
Points:
•
This is an example where we have speakers being treated differently
PUBLIC FORUMS AND DESIGNATED
PUBLIC FORUMS
• Public property that has historically been open to speech-related activities
(streets, sidewalks, and public parks) is called public forum.
• Public property not historically open to speech related activities, but which
government has thrown open for such activities, are designated public forums/
• Government may regulate speech in public forums and designated public
forums with reasonable time, place, and manner regulations
TEST FOR GOVERNMENT REGULATION OF
SPEECH IN PUBLIC FORUMS/DESIGNATED
PUBLIC FORUMS
• To be valid, government regulations in public forums and designated public forums must:
• Be content neutral (subject-matter neutral & viewpoint neutral)
• Cannot be based on content of speech.
• Be narrowly tailored to serve an important government interest; and
• Regulation may not burden substantially more speech than necessary to further the significant
government interest. Regulation need not be the least restrictive means of accomplishing goals
• Leave open alternative channels of communication
• Law must leave open alternative channels of communication; ie other reasonable means for
communicating the idea
Remember: even if regulation meets above conditions, it may be struck on other grounds still
(overbreadth, vagueness, unfettered discretion, etc)
POLICE DEPARTMENT OF CHICAGO V.
MOSLEY
• City of chicago exempts peaceful labor picketing from its general prohibition on picketing next
to school. Mosley was a federal postal employee who engaged in picketing near jones
commercial high school during school hours on the public sidewalk adjoining the school – this
was done about seven years before the ordinance was enacted. He carried signs stating that
the school practices black discrimination; his picketing was quiet, orderly and peaceful & was
conceded to be so by the city of chicago.
• Issue: whether the selective exclusion from picketing from public place is constitutional?
• Court analyzed this issue under the 14th amendment EP clause since the ordinance treated
picketing differently in certain circumstances and 1st amendment.
• Holding:
• No.
• Rule: in ‘public forums’, the government cannot selectively exclude certain speakers based on
content, issue, or viewpoint
RESIDENTIAL AREAS RESTRICTED
• Targeted picketing – SCOTUS upheld statute that prevented focused residential picketing.
Street/sidewalk involved was public forum, but ordinance passed three-part test:
• Content neutral bc it regulated the location and manner of picketing rather than message;
• Narrowly tailored to important interest of protecting homeowners privacy
• Alternative means of communications were available bc the protesters could march through the
neighborhood in protest
• Charitable solicitations – funds in residential areas are within the protection of first
amendment, but are subject to reasonable regulation
• States have significant interest in preventing fraudulent charitable solicitations
• Permits – state may not require persons to obtain permits in order to canvass door-to-door
for noncommercial/non-fundraising purpose.
LIMITED PUBLIC FORUMS AND
NONPUBLIC FORUMS
• Other than streets, sidewalks, parks, and designated public forums, most public
property is considered to be a limited public forum or nonpublic forum.
Government can regulate speech in such forums to reserve them from their
intended use. Regulations will be upheld if they are:
• Viewpoint neutral and
• Reasonably related to legit government purpose
SIGNIFIC ANT C ASES REGARDING LIMITED
PUBLIC FORUMS AND NONPUBLIC FORUMS
• Military bases
•
Not public forums, thus on-base speech & assembly may be regulated, even when the public is invited to visit
• Schools
•
Generally, schools and school sponsored events aren't public forums. Schools may reasonably regulate to serve
educational mission
• Government workplace or charity
•
Neither government workplace nor government-controlled charity drive constitutes public forum
• Postal service property
•
Sidewalks on postal service property are not public forums
• Signs on public property
•
Sings on public property can be removed for limited public forum
• Airport terminal
•
Not public forums
• Candidate debate on TV
•
Exclusion of candidates not from major parry & lack support is permissible bc: viewpoint neutral; and reasonable in
light of logistics for educational debate
• Mailboxes
•
Not public forum, so government can prohibit placing unstamped items in post boxes to promote
CHRISTIAN LEGAL SOCIETY V. MARTINEZ
(SCHOOLS LIMITING SPEECH)
•
•
Facts:
•
CLS was an organization at Hastings School of Law. Hastings has a registered student organization (RSO) program that extends official recognition to
student groups. The groups receive benefits ranging from financial assistances to utilizing law school channels to communicate with students,
announcements, meeting space, etc.
•
In exchange for the benefits RSO requires the acceptances of all corners – known as the nondiscrimination policy. CLS submitted its application for
RSO but its was rejected bc the bylaws did not comply with the discrimination policy bc CLS barred students based on religion and sexual orientation.
CLS asked for an exemption but the school declined but the school offered CLS to use its facilities for its meeting and other activities if it decided to
operate outside of the RSO program.
•
CLS had two arguments:
•
Regulation barrier must be reasonable and viewpoint
•
Regulation directly and immediately affects associational rights
•
Court viewed the two arguments together and gave special caution to the issue and the justifications set by the school as far as the reason for the
nondiscriminatory statute.
•
The court also concluded that the policy was viewpoint neutral bc it required all student groups to accept all comers.
•
Issue: whether a public law school condition its official recognition of a student group – and the attendant use of school funds and facilities – on the
organization’s agreement to open eligibility for membership and leadership to all students?
Holding:
•
Yes
•
Rule: the 1st amendment shields a student organization against state prohibition of its expressive approaching patients entering health care facilities is a
content-neutral, valid, “time, place, and manner, restriction”. The court upheld the regulation and said governmental entities establish limited public
forums by operating property limited to use by certain groups or dedicated solely to the discussion of certain subjects
TINKER V. DES MOINES
(SCHOOL REGULATING SPEECH)
• Facts:
• Students wore black armbands to school. School stated that this was ‘gang related’,
although that was not the student’s intent.
• Holding:
• In order for a state in the person of a school official to justify prohibition of a
particular expression of opinion, it must be able to show that this action was
caused by sometimes more than a mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular viewpoint
• Must show that engaging in the forbidden conduct would ‘materially and
substantially interfere with the requirements of appropriate discipline in the
operation of the school
BETHEL SCHOOL DISTRICT V. FRASER
(SCHOOL REGULATING SPEECH)
• Facts:
• Key difference in this case and tinker is that in tinker, the political message was armbands,
whereas here it’s the sexual content of Fraser’s speech
• Issue: whether the first amendment prevents a school district from discipline a high
school student for giving a lewd speech at a school assembly
• Holding:
• No
• In this case, sanctions that were imposed were unrelated to any political viewpoint like it
was in tinker
• School board has the authority to determine what manner of speech in the classroom or
at a school assembly is considered ‘inappropriate’
HAZELWOOD V. KULMEIER (SCHOOL
REGULATIONS)
• Facts:
• The extent to which educators may exercise editorial control over the contents of a
high school newspaper produced as part of the school’s journalism curriculum. School
officials deleted parts of students article from students newspaper
• Holding:
• Biggest issue here: whether the first amendment requires a school to affirmatively
promote particular student speech
• Court held that educators do not offend the 1st amendment by exercising editorial
control over the style and content of the student speech in a school-sponsored
expressive activity so long as their actions are reasonably related to legit pedagogical
concern
• Court held that the principal's actions were REASONABLE
FREEDOM OF ASSOCIATION
• There’s nothing in the first amendment that says ‘freedom of association’ but it’s couple with
speech and due process clause
• SCOTUS has expressly held that freedom of association is fundamental right protected by the
first amendment.
• The right to associate is not absolute. It may be infringed upon to serve compelling
government interest, unrelated to the suppression of ideas that cannot be achieved through
means significantly less restrictive of associational freedom.
• Government can punish if:
• Active affiliation
• With knowledge of illegal objects &
• With proof that he specifically intends to accomplish the aims of the party by resort of violence
knowing of its illegal objections (scales test)
FREEDOM OF RELIGION
• Constitutional provision – first amendment provides ‘congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise
thereof’
• Applicability to states: both establishment and free exercise clause of the first
amendment apply to states under the 14th amendment.
NO PUNISHMENT OF BELIEFS
• Free exercise clause prohibits the government from punishing (denying benefits
to, or imposing burdens on) someone on the basis of the person’s religious
beliefs. It is sometimes said that the government can engage in such activity
only if it’s necessary to achieve a compelling interest; sometimes the rule is
stated as total prohibition of such actions. In any case, SCOTUS has never
found interest that was ’compelling’ that it would justify punishing a religious
belief.
WHAT CONSTITUTES AS RELIGIOUS
BELIEF?
• Scotus hasn’t defined what constitutes a religious belief. However, it’s made
clear that religious belief doesn’t require recognition of supreme being, and
need not arise from traditional or organized religion.
• Courts may not find religious beliefs to be false. If a person says that he talked to
God & God told him to solicit money, he cant be found guilty of fraud on basis that
God never made such statement.
• Court may determine whether person is sincerely asserting belief in divine statement
STATES CAN REGULATE GENERAL
CONDUCT REGARDING RELIGION
• States may prohibit or regulate conduct in general, and this is true even if the
prohibition/regulation happens to interfere with persons religious practices. Free
exercise clause cannot be used to challenge a law of general applicability unless it
can be shown that the law was motivated by desire to interfere with religion
(employment division v. smith)
• Generally no exemption required: free exercise clause doesn’t require exemptions from
criminal laws or other governmental regulation for person whose religious beliefs prevent
him from conforming his behavior to al requirements of law.
• Federal statutory exemption – outside scope of exam: religious freedom restoration act
allows person to challenged federal laws of general applicability as burdening his religious
beliefs and practices. If there is a substantial burdening of religious free exercise,
government must meet strict scrutiny.
EXAMPLES OF STATE REGULATING
CONDUCT THAT RELATES TO RELIGION
• Supreme court has held that no religious exemption was required from the following
religiously neutral regulations, even though certain groups objected bc the regulation interfered
with conduct inspired by sincerely held religious beliefs:
• Prohibition against use of peyote (employment division v. smith)
• Denial of tax-exempt statue to schools that discriminate – on basis of race. Challenged by
religious school whose tenets require certain separations of race
• Requirement that employers comply with federal minimum wage laws – challenged by employer
that argued minimum wages interfere with member’s religious desires to work without
compensation
• Requirement that employers pay social security taxes – challenged by person whose religious
beliefs prohibited payment and receipt of social security payment
• Sales and use taxes – challenged as applied to sales of goods and literature by religious group
CASES IN WHICH EXEMPTIONS WERE
MADE FOR RELIGIOUS PRACTICES
• Ministerial exemption: scotus held that religious organizations must be granted
exemption from suits alleging employment discrimination by minsters against
religious organizations.
• Unemployment compensation cases: scotus has held that states must grant
religious exemptions. Thus if a person resigns from job/refuses to accept job
bc it conflicts with religious beliefs, state must pay unemployment
compensation if she is otherwise entitled
ESTABLISHMENT CLAUSE
• Establishment clause, along with free exercise clause, compels government to
pursue a course of neutrality toward religion. Government action challenged
under the establishment clause will be invalid unless action:
• Has secular purpose
• Has primary effect that neither advances nor inhibits religion; and
• Does not produce excessive government entanglement with religion.
LEMON V. KURTZMAN – THE LEMON
TEST
• Establishment clause cases can be grouped into 4 categories:
• Cases preferring one religious' sect over the others
• Limited group of cases unconnected to financial aid/education
• Cases involving financial aid to religiously affiliated institutions
• Case concerning religious activities in public schools
LEMON TEST – SET PREFERENCE
• Government action that prefers one religious' sect over others violates the
establish clause, at least if such action is not necessary to achieve compelling
interest. Court generally will not even resort to the lemon test in such case,
although such action would fail the first two prongs of lemon test, bc if the
government is favoring one religious sec, it’s acting with the purpose of and
having the primary effect of aiding that religion
• Ex: state law created public school district whose boundaries were intentionally set
to match the boundaries of particular jewish neighborhood (so that several
handicapped students would not have to be sent outside their neighborhood to
attend special education would not have to be sent outside their neighborhood to
attend special ed classes that state required and which the students’ private school
could not adequately provide. This was held UNCONSTITUTIONAL
LEMON CASE – CASES UNCONNECTED
TO FINANCIAL AID/EDUCATION
• In cases unconnected to financial aid/education, good rule of thumb is that a
law favoring or burdening religious or specific religious group in particular will
be invalid, but law favoring/burdening large segment of society that happens to
include religious groups be upheld
• Government may not delegate governmental power to religious organizations bc such
action would involve excessive governmental entanglement
STATE LEGISLATURE CAN EMPLOY A
CHAPLIN
• Despite principle of separate of church and state, court has held that a state
legislature could employ Chaplin and begin each legislative day with prayer
TOWN BOARD CAN BEGIN TOWN
MEETINGS WITH PRAYERS
• Court has held that town board may begin its meetings with prayer led by
clergy members listed in towns congregation directory, even if clergy is
predominately Christian.
• Court found that the practice is consistent with the traditional of legislative
prater and doesn’t discriminate against minority faiths, nor coerce the
participation of nonadherent, therefore no EC violation
DISPLAYS OF TEN COMMANDMENTS ON
PUBLIC PROPERTY
• If the display of ten commandments is shown to have a predominately religious purpose, it
violates EC. Otherwise, it may be displayed.
•
2 counties posted large copies of the Ten Commandments in their courthouses. After complaints based
on the Establishment Clause, each county adopted a resolution calling for a more extensive exhibit
showing that the Commandments are Kentucky’s “precedent legal code” and noting the state legislature’s
acknowledgment of Christ as the “Prince of Ethics.” The displays were then modified to add smaller
copies of other historic texts with religious references (e.g., the “endowed by their creator” clause of the
Declaration of Independence). A district court found the displays invalid under the Lemon test because
they lacked any secular purpose. The counties again modified the displays—without any guiding
resolutions—to include eight equally sized items around the Ten Commandments (including the Bill of
Rights and a picture of Lady Justice) and the title “Foundations of American Law and Government.” The
ACLU moved to enjoin these displays, claiming that their purpose was still religious rather than secular.
Given the displays’ history, the Supreme Court agreed, finding that the taint from the earlier displays had
not been dissipated even though, on their faces, the most current displays appeared not to have a religious
purpose. [McCreary County v. ACLU, supra]
•
Compare: A monument of the Ten Commandments on a 22-acre State Capitol ground displaying 17
monuments and 21 historical markers commemorating the state’s “people, ideals, and events that
compose its identity” communicated not only a religious message but also a secular moral message, and
its setting suggested that the state intended the secular message to predominate. [Van Orden v. Perry, 545
U.S. 677
SOME HOLIDAY DISPLAYS ARE
PERMISSIBLE
• If government maintains a holiday-Christmas time display that doesn’t appear
to endorse religion, it will survive under the 3-part EC test. If it includes
religious symbols (nativity scene), as well as holiday décor (Christmas tree),
court will hold that display:
• Has secular purpose – based on history of government recognition of holidays
• Primary nonreligious effect (doesn’t endorse religion)
• Doesn’t create excessive entanglement between government and religion.
• If it were to only display a nativity scene or other religious symbols, court would find
it has violated EC bc it has a religious effect (endorsing religion)
ABSOLUTE RIGHT NOT TO WORK ON
SABBATH IMPERMISSIBLE
• The state may not force employers to grant all employees right to refrain from
working on their sabbath bc the primary effect of such law is to advance
religion.
• However, a state may require employers to make reasonable efforts to
accommodate employee’s religious practices.
EXEMPTION FROM
ANTIDISCRIMINATION LAW
• Federal government may exempt religious organizations from federal statutory
prohibition against discrimination in employment on basis of religion, at least
regarding nonprofit activities.
• Janitor can be discharged from his employment at a gym owned by a religious
org (open to public and run as nonprofit) bc he was not a member of that
religious org
RELIGIOUS ACTIVITIES IN PUBLIC
SCHOOLS
• Prayer and Bible reading in school are invalid as establishments of religion. [Engel v.Vitale, 370
U.S. 421 (1962); Abington School District v. Schempp, 374 U.S. 203 (1963)]
• It does not matter whether participation is voluntary or involuntary, and neither does it
matter that the prayer period is designated as a period of silent prayer or meditation. [Wallace
v. Jaffree, 472 U.S. 38 (1985)]
• This rule extends to prohibit public school officials from having clerics give invocation and
benediction prayers at graduation ceremonies. [Lee v. Weisman, 505 U.S. 577 (1992)]
• Similarly, a school policy authorizing students to elect whether to have a student invocation
before varsity games, to select a student to deliver it, and to decide its content violates the
Establishment Clause
• . Unlike student speeches at an open public forum, this policy’s purpose is to encourage
religious messages. [Santa Fe Independent School District v. Doe,
ACCOMMODATION OF RELIGIOUS
STUDENTS –ON CAMPUS MEETINGS
• Under the Free Speech Clause, if a public school allows members of the public
and private organizations to use school property when classes are not in
session, it cannot deny a religious organization permission to use the property
for meetings merely because religious topics will be discussed.
• Such an “equal access rule” does not violate the Establishment Clause because
the primary purpose of such programs is secular (to accommodate all
interests), people are not likely to assume that the government endorses the
religious ideas discussed, and there is no excessive government entanglement,
at least where the meetings are not run by school personnel. [Good News
Club v. Milford Central School]