CONSTITUTIONAL LAW PRE-WRITE (WITHOUT CASES)
Fundamental Rights
X will likely claim she has a fundamental right in __ . Thus, she will claim it violated her Due Process (or Equal Protection). It must first be
determined if a fundamental right or non-fundamental right has been infringed. The court will then apply a Due Process analysis (and Equal
Protection if applicable) and apply the appropriate level of scrutiny.
FIRST COURTS LOOK TO WHETHER THE LAW PERTAINS TO A FUNDAMENTAL RIGHT?
IF IT IS A RIGHT THAT HAS NOT BEEN LISTED AS A FUNDAMENTAL/NON FUNDAMENTAL
Make argument for why it should/should not be declared a fundamental right
 History/Tradition
 Precedent
 Natural Rights
 Moral Issues
 Textual v. Nontextual
o If not enumerated – Ninth Amendment and penumbras
IF IT IS A RIGHT THAT HAS BEEN LISTED AS FUNDAMENTAL/NONFUNDAMENTAL KEEP GOING
FUNDAMENTAL RIGHTS (Strict scrutiny)
Fundamental Rights are a group of rights that are so deeply rooted in the nation’s history and tradition that they require a high protection by the
government. The courts have held fundamental rights to include the following:
Right to marriage
The Supreme Court has held that the right to marry is a fundamental right.
Loving v. MA—Interracial marriage prohibition law is unconstitutional violating the Equal Protection Clause (treating some people differently
who has the right to marry whom). Note this would also violate due process – because it infringes on the right to marry
Zablocki v. Redhail— Court declared unconstitutional a state law to receive court permission in order to marry if they are required to pay child
support for their child not in their custody. Π was unable to receive court permission b/c he failed to pay the support required by the statute.
Court found right to marry a fundamental right under “liberty” of DPC & law impermissibly interfered w/that right. It would make little
sense to recognize right of privacy w/respect to other matters of family life & not w/respect to decision to enter relationship that is
foundation of family in our society. It violated EPC under SS. Although interest of welfare of child & ensuring ppl comply with obligations,
State has less restrictive means such as civil & criminal proceedings. Also law is both underinclusive & overinclusive. It ø regulate other unpaid
obligations & prevents ppl from getting married w/out ordering delivery of support $ to kids.
Right to keep family together
The Supreme Court has held that the freedom of personal choice in matters of family life and the right to keep the family together is a fundamental
right.
Moore v. City of East Cleveland, Ohio—Zoning ordinance declared unconstitutional for infringing on rights of extended family that limited # of
unrelated ppl who could live together in 1 household & defined “unrelated” to keep a grandmother from living with her 2 grandsons who were
first cousins. “Liberty” in the DPC includes protection for family rights & freedom of personal choice in family matters is a fundamental right.
The Constitution protects family rights, not just for parents & children but for extended family too. Child rearing decisions “long
have been shared w/grandparents or other relatives who occupy the same household. History counsels caution and restraint.
Constitution protects sanctity of the family precisely b/c institution of the family is deeply rooted in this Nation’s history & tradition, moral &
values don’t apply. But it ø counsel abandonment, nor does it require what the city urges here: cutting off any protection of family rights at the
first convenient, if arbitrary boundary – the boundary of the nuclear family. Applying strict scrutiny, its justification of preventing overcrowding,
minimizing traffic and financial burdens is served by the law only marginally. There are other means like taking into account # of ppl in the
home & it refused to extend family living only to nuclear family.
Rights of parents to control the upbringing of their children
The Supreme Court has held that parents have a fundamental right to make decisions regarding the care, custody control of their children.
Meyer v. Nebraska— π convicted for teaching child German under NE statute that outlawed teaching of foreign languages to students that
had not yet completed 8th grade. Court invalidated law by using substantive due process finding statute violated right of parents to make
decisions for kids as freedom of parental decision is FR. Court broadly defined “liberty” in DPC to protect basic aspects of family autonomy,
including many non-economic rights such as right of teachers to teach, & that of students to acquire knowledge. “W/out doubt, liberty
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denotes not merely freedom from bodily restraint, but also right of individual to K, engage in common occupations of life, acquire
useful knowledge, & generally enjoy those privileges essential to orderly pursuit of happiness by free men.” Knowledge of another
language ø harmful. Parent has natural duty to make decisions for kids. Promotion of integration of this culture ø good reason to change that.
Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary—Court held unconstitutional state law requiring kids to attend public
schools who went to private school. Court explained “fundamental theory of liberty upon which all gov in Union repose excludes any
general power of state to standardize its children by forcing them to accept instruction from public teachers only. Child is not mere
creature of the state; those who nurture & direct his destiny have right, coupled with high duty, to recognize & prepare him for his
additional obligations.” Act unreasonably interferes w/ the “liberty” of parents & guardians to direct upbringing & education of children under
their control. Determined on EQP grounds. If parents want to send kids to private school they have a right to make that decision.
Troxel v. Granville—Court declared unconstitutional WA law, (absence of majority opinion & focus on specifics of statute left in doubt
permissibility of other versions of grandparents’ rights laws.) Father of 2 daughters committed suicide & for first year after death, girls continued
to regularly visit with paternal grandparents until their mother largely ended visitation, restricting it to few times a year. Grandparents sued in
WA state trial court under state law that protects grandparents’ rights who ruled in favor of grandparents, but WA S. Ct. declared this
unconstitutional as violating the mother’s right to control the upbringing of her children. “The liberty interest at issue – interest of parents in
care, custody, & control of their children – is perhaps the oldest of the fundamental liberty interests recognized by this Court,” thus,
WA law was unconstitutional as infringing on this fundamental right. B/c statute was so broad, in practical effect, a WA court can disregard &
overturn any decision by a fit custodial parent concerning visitation whenever a 3rd party affected by the decision files a visitation petition solely
on judge’s determination of the child’s best interests. Unless the party can bring evidence that the mother is unfit, the mother has a
fundamental right to make such decisions. The court refused to address whether harm was required, as of now it is not.
Right to Procreate
The Supreme Court has held that the right to procreate is a fundamental right. The right to procreate also includes the right to be free from
involuntary sterilization.
Buck v. Bell—The problem was whether an Act in Virginia that recited the health of the patient & welfare of society may be promoted in
certain cases by the sterilization of mental defectives is void under the 14th Amendment as denying to π due process of law and equal
protection of the laws when ∆ performed a salpingectomy upon Buck for the purposes of making her sterile. Court upheld the Act finding the
grounds exist and justify the result. It’s better for all the world, if instead of waiting to execute degenerate offspring for crime, or let them starve
for imbecility, society can prevent those who are manifestly unfit from continuing their kind. “Three generations of imbeciles are enough.”
Sterilization for one with mental illness is okay
Skinner v. Oklahoma—Court declared unconstitutional Sterilization Act that allowed courts to order sterilization of those convicted 2 or more
times for crimes involving “moral turpitude.” OK deprived certain individuals of a right which is basic to perpetuation of a race – the right
to have offspring. Law made classification amongst some criminals but not others, thus violated = protection & spoke broadly of right to
procreate as fundamental right: Marriage & procreation are fundamental to very existence & survival of the race. Power to sterilize, if
exercised, may be subtle, far-reaching & devastating effects. In evil or reckless hands it can cause races or types, which are inimical to the
dominant group to whither & disappear. No correlation btw crimes & biological inheritable traits. Thus, it deprived him of a basic liberty.
Right to purchase and use contraceptives
The Supreme Court has held that the right to purchase and use contraceptives is a fundamental right that derives from the right to privacy.
Griswold v. Connecticut—Court declared unconstitutional a Connecticut law that prohibited use & distribution of contraceptives. A physician
was arrested and charged with giving information, instruction, and medical advice to married persons on means of preventing conception.
Court found right to privacy was a fundamental right. But, expressly rejected that right was protected under liberty of the DPC & held it was
violation of EPC by violating right to privacy in prohibiting married couples from using contraceptives. “Would we allow the police to search
the sacred precincts of the marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions
of privacy surrounding the marriage relationship.” We deal with right of privacy older than Bill of Rights – older than our political parties,
older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to degree of being
sacred. Under concept of penumbras, there is a right to privacy & regulation may not invade such right in which banning contraceptives does.
There are several guarantees to privacy: 1st, 2nd, 4th, 15th
Eisenstadt v. Baird—Court declared unconstitutional MA law that prohibited distributing contraceptives to unmarried individuals & only
allowed physicians to distribute them to married persons. Π was convicted for exhibiting & distributing contraceptive articles under a law that
forbid single as opposed to married people from obtaining contraceptives. Court found MA law violated = protection b/c it discriminated against
nonmarried individuals. If the right of privacy means anything, it is the right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a
child. Also, prohibited distribution of contraceptives serves no legitimate government purpose. “It would be plainly unrsbl to assume that
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MA has prescribed pregnancy & birth of an unwanted child as punishment for fortification.” Nor could prohibiting distribution of
contraceptives be defended as a health measure. The marital couple is not an independent entity with a mind and heart of its own, but an
association of 2 ind. each w/separate intellectual & emotional makeup. The state interest of purity, chastity and self-restraint are only
marginally served. It is the right of the individual, whether they are married or single to be free from government intrusion.
Right to an abortion
The Supreme Court has held that women have a fundamental right to terminate pregnancy before viability. In Roe v. Wade, the court held that the
right to privacy to right an abortion.
Roe v. Wade— TX law made it a crime to procure or attempt an abortion except when medically advised for purpose of saving life of mother.
Violation of DP; 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. Court ruled gov may not prohibit abortions prior to viability & that gov regulation of abortions had to
meet strict scrutiny. Court focused on right to privacy – This right of privacy, whether it be founded in 14th A’s conception of personal
liberty & restrictions upon state action, as we feel it is, or, in 9th A’s reservation of rights to the people, is broad enough to
encompass a woman’s decision whether or not to terminate her pregnancy.” By prohibiting abortion & forcing a woman to continue a
pregnancy against her will obviously imposes enormous physical & psychological burdens & infringes on a woman’s right to privacy. Abortion
is not absolute though & must be balanced against other considerations, such as state’s interest in protecting “prenatal life.” SS was
to be used b/c right to abortion was a fundamental right. As fetus’s viability grows, lower women’s rights; the less growth, the more rights
women have. Each grows in substantiality as the woman approaches term &, at a point during pregnancy, each becomes “compelling.” The
“compelling” point, in light of present medical knowledge, is at approx. the end of first trimester. Court noted how broad women’s right were at
common law & recognized a right to privacy but noted that state has interests of women health & viability. Thus, the state can regulate the
abortion procedure in ways reasonably related to health. The rule is viability unless necessary for mother’s life.
Planned Parenthood v. Casey— PA law imposed several obligations on women seeking abortions and medical practitioners. The Act
exempted compliance with obligations in event of a medical emergency Court reaffirmed Roe & again held gov may not ban abortions
prior to viability. However, plurality overruled trimester distinctions used in Roe & also the use of SS for evaluating gov regulation of abortions.
Gov regulation of abortions prior to viability should be allowed unless there is an “undue burden” on access to abortion. “The undue burden
standard is appropriate means of reconciling the State’s interest w/ the woman’s constitutionally protected liberty. A finding of an undue
burden is a short hand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the
path of a woman seeking an abortion of a nonviable fetus. To promote states profound interest in potential life, throughout pregnancy the
State may take measures to ensure the woman’s choice is informed, & measures designed to advance this interest will not be invalidated as
long as their purpose is to persuade the woman to choose childbirth over abortion. These measures must not be an undue burden on the
right.” Right to abortion is constitutionally protected b/c of the importance of choice & intrusion in forcing a woman to remain pregnant against
her will. The mother who carries a child to full term is subject to anxieties, physical constraints, pain that only she must bear…Her suffering is
too intimate & personal for the state to insist, w/out more, upon its own vision of the woman’s role. Court ø want to overturn Roe’s core just
b/c some ppl find it to be immoral in comparison to Constitution. Woman’s interest is high & state can only intrude to an extent.
Spousal consent and notice requirements  The Supreme Court has held that it is the individual’s right to an abortion and will not allow a third
person’s veto power to take away that right.
Planned Parenthood v. Danforth— State required written consent of spouse of wife before she had abortion in 1st trimester unless a
physician certified abortion was necessary to protect woman’s life. Gov argued it protects mutual decisions vital to marriage. Held invlaid
under Roe. Court recognized husband has “deep & proper concern & interest…in his wife’s pregnancy & in growth & development
of fetus she is carrying.” However, “the obvious fact is that when wife & husband disagree on this decision, view of only 1 of the 2 marriage
partners can prevail. Inasmuch as it is the woman who physically bears the child & who is more directly & immediately affected by pregnancy,
as btw the 2, balance weighs in her favor. If state ø get veto power, then neither does husband. No one can intrude on woman’s ability to
terminate pregnancy in “first trimester.” States are not supposed to make laws that regard first semester, no reason to give husband right to a
veto power. Father does have rights, but woman is bearing child, the balance weighs in her favor.
Planned Parenthood v. Casey—Court invalidated state law (under Roe) that required spousal notification before a married woman could
receive an abortion. Opinion noted tragic prevalence of men abusing wives & said a spousal notification requirement could trigger such abuse.
Citing several statistics about the women violence and abuse, court reasoned that requirement is likely to prevent a significant # of women
from obtaining an abortion, thus, standing as an obstacle. Father has interest but again ø give him veto power. Also, husband has interest in
whether wife has abortion, but: “Before birth, issue takes on very different cast. It is inescapable biological fact that state regulation
w/respect to child a woman is carrying will have far greater impact on mother’s liberty than on father’s.” Choice of whether to have an
abortion must be left to the woman, without any requirement for spousal notification. When wife & husband disagree on this decision, view of
only 1 of 2 marriage partners can prevail. State may not give to a man the kind of dominion over his wife that parent's exercise over children.
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Parental notice for minors  A state cannot allow parents to have absolute veto over their child’s decision to get an abortion. If a State decides
to require a pregnant minor to obtain one or both parent’s consent to an abortion they must provide an alternate procedure whereby authorization
for the abortion can be obtained if they don’t want to tell their parents or if their parents will not consent. The state shall require a judicial hearing in
which it must be shown that the minor is mature enough to make such a decision and that an abortion would be in the best interest of the child.
Minors still have rights, they are just held to a lesser standard than that of an adult.
Bellotti v. Baird—Court declared unconstitutional MA law that required unmarried, minor women to obtain parental consent from both parents
before allowing her to acquire abortion. Court recognized parents have constitutional right to control upbringing of children, but also
acknowledged females of all ages have a right to abortion. Thus, struck a compromise: A state could require parental consent for
unmarried minors’ abortions, but only if it created a bypass procedure where a minor could obtain an abortion by persuading a
judge it would be in her best interests or that she is mature enough to decide for herself. “If the State decides to require a pregnant
minor to obtain one or both parents’ consent to an abortion, it also must provide an alternative procedure whereby authorization for abortion
can be obtained. A pregnant minor is entitled to such a proceeding to show either: (1) That she is mature enough and well enough informed to
make her abortion decision, in consultation with her physician, independently of her parents’ wishes; or (2) That even if she is not able to make
this decision independently, the desired abortion would be in her best interests. Parents cannot have ultimate veto power.
Right to refuse treatment
The Supreme Court has held that the right to refuse medical treatment is a fundamental right.
Washington v. Harper— Prisoners have right to be free from involuntary administration of antipsychotic drugs. Court held prisoners possess
significant liberty interest in avoiding unwanted administration of antipsychotic drugs under DPC of 14th Amendment. Forcible injection of
medication into non-consenting person’s body represents substantial interference with person’s liberty. Interest was adequately protected by
providing inmate w/ notice and a hearing before a tribunal of medical and prison personnel at which the prisoner could challenge the decision.
Right to Refuse Life Sustaining Treatment
The Supreme Court has held that the right to refuse life sustaining treatment is a fundamental right. However the choice between life and death is
so important that increased scrutiny and safeguards are allowed. The state must balance the states compelling interest in life and the means used
(narrowly tailored) with the patient’s liberty interest.
Cruzan v. Director, Missouri Dept. of Health— Cruzan was in vegetative state & on life support. C’s parents asked hospital to terminate life
support. Hospital refused to honor request w/out court approval. State refused to order termination, b/c clear & convincing evidence wasn’t
produced to show Cruzan herself would have chosen to refuse treatment. Right to refuse treatment and the state has sufficient interest in
adopting a clearing and convincing standard for the termination of life support. Competent adults have a constitutional right to refuse
medical care. Court separated right to refuse treatment & life sustaining. As far as life sustaining, Court wants to protect incompetent by having
such a standard to avoid abuse by surrogate. Here, statements made did not clearly show she wanted to withdraw treatment only that she
would not want to live if in veg. state. Choice btw life and death is a deeply personal decision of obvious & overwhelming finality. A
state may prevent family members from terminating treatment for another. The right to end treatment belongs to each individual, and a state
may prevent someone else from making the decision. Family members may be in a conflict of interest situation; they may choose to terminate
care to minimize own emotional or financial burdens. If competent, have right to refuse treatment. BUT, if incompetent, never allowed.
The Right to Vote
The Supreme Court has repeatedly held that the right to vote is a fundamental right. Generally, if any kind of obstacle or burden is placed on the
exercise to vote such as requiring payment of any fee as an electoral standard, the law will be deemed invalid.
Harper v. VA State board of Elections
Dilution of Vote An individual’s right to vote for state legislature is unconstitutionally impaired when its weight is in a substantial fashion diluted
when compared with votes of citizens living in other parts of the state.
Reynolds v. Sims— Court declared malapportionment of a state legislature unconstitutional and to order its reapportionment. Π alleged that
last apportionment of state legislature was based on 1900 federal census & population growth in intervening 6 decades made representation
discriminatory against areas with fast-growing populations. Geographical area made no sense in drawing districts; only population was a
permissible basis. “Legislatures represent people, not trees or acres. Legislators are elected by voters, not farms, or cities or
economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of
government elected directly by and directly representative of the people, the right to elect representatives in a free and unimpaired
fashion is a bedrock of our political system.” Malapportionment inevitably means vote dilution; and cannot dilute someone’s vote. If the
State gives voters in one part of the State much more weight in the vote of their legislators, the right to vote of voters in underrepresented parts
of the State has been diluted. Hence, apportionment of state legislatures needs to reflect a one-person, one-vote policy.We hold that, as a
basic constitutional standard, the EPC requires that the seats in both houses of a bicameral state legislature must be apportioned on a
population basis. Right to vote is a fundamental right – to have your vote count/matter is even more fundamental. Both houses of a
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state legislature must be apportioned by population; A state is not allowed to mirror Congress where the House is apportioned by population
and Senate seats are allocate 2 to each state regardless of population.
Prisoners and Convicted Criminal’s Right to Vote  The Supreme Court has repeatedly upheld limitations on a right to vote for felony
convictions unless there is a racially discriminatory purpose. However, if a prisoner is awaiting trial, the government must provide the prisoner with
an absentee ballot.
Poll taxes  No if it places a burden on the right to vote
Harper v. Virginia State Board of Elections— State law applied annual poll tax of less than $1.50 for every citizen 21 years old or older.
Court held poll taxes are unconstitutional as denial of EP for all other elections. At outset Court said, “once franchise is granted to electorate,
lines may not be drawn which are inconsistent w/ EPC.” Court concluded that limiting voting to those who paid poll tax was impermissible
discrimination. “A state violates EPC whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter
qualifications have no relation to wealth nor to paying or not paying this or any other tax.” Court rejected state’s argument that poll tax
of $1.50 was minimal & thus not significant burden on right to vote. “To introduce wealth or payment of a fee as a measure of voter’s
qualifications is to introduce capricious or irrelevant factor. Degree of discrimination is irrelevant. As condition of obtaining a ballot requirement
of fee-paying causes an invidious discrimination that runs afoul of EPC. Voting is one of most important FR. Too much of an obstacle
Photo ID  can be upheld if they survive strict scrutiny
Crawford v. Marion County Election Board— Court upheld facial constitutionality of Indiana law requiring voter ID. Voter ID law required that
any person voting in person on election day to present photo ID issued by government. Law affected many people such as poor, elderly &
religious orgs. Court applied SS & was held to be valid. The general rule is that “evenhanded restrictions that protect the integrity &
reliability of electoral process itself are not invidious. Rather than apply any ‘litmus test’ to neatly separate valid from invalid
restrictions, court must identify & evaluate interests put forward by State as justifications for burden imposed by its rule, & then
make ‘hard judgment’ that our adversary system demands.” Court recognized several state interests such as fraud, modernization, &
confidence & noted really no burden on travel & costs, esp. since ID card was free. Also, no discriminatory purpose, which is required for SS.
Property ownership requirements  The Supreme Court has invalidated requirements of property ownership for voting. However, the court has
applied rational basis in narrow circumstances. (Facts Based)
Kramer v. Union Free School District— Court declared unconstitutional NY law that provides in certain NY school districts, residents may
vote in school district election only if they own or lease taxable property w/in that school district, or have children enrolled in local schools.
Court said that SS was appropriate b/c law kept some citizens from voting in school elections. State’s primary justification for
restrictions was to limit participation to those who were “primarily interested in school affairs.” Court said “requirements…are not
sufficiently tailored to limiting the franchise to those ‘primarily interested’ in school affairs to justify the denial of the franchise.” Law was not
capturing all of the people who would have a primary interest in school affairs. Statute was excluding people. The classifications of the law
permits inclusion of many persons who have remote & indirect interest in school affairs &, on other hand, exclude others who have distinct &
direct interest in school meeting decisions. The law is overinclusive & underinclusive.
Literacy Tests  Although literacy tests are constitutionally permissible, Congress has passed federal statutes that do not permit literacy tests for
voting using their Commerce Clause power.
Protection for Access to Courts
The Supreme Court has held that although not unlimited, access to the courts is a fundamental right. The court has been inconsistent as to
whether the government is constitutionally obligated to pay filing fees. The court will require waiver of filing fees when the court case involves a
constitutionally protected right.
Gideon v. Wainright
Custody Appeal Fees – The right to marry includes the right to get a divorce. A state may not deny an individual, because of her poverty,
appellate review of the sufficiency of evidence on which the trial court found her unfit to remain a parent. (STRICT SCRUTINY)
MLB v. SLG
Divorce fees – Due Process prohibits a State from denying a person who seeks judicial dissolution of their marriages the ability to file for such
dissolution solely because of the inability to pay. (STRICT SCRUTINY)
Boddie v. Connecticut—Court applied SS & found it unconstitutional to deny indigent individuals access to courts for filing a divorce petition
b/c of their inability to pay a filing fee. Average cost for divorce was $60. Boddies were welfare recipients who were denied ability to file divorce
papers b/c of inability to afford filing fee. “A State may not, consistent with obligations imposed on it by DPC of 14 th A, preempt right to
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dissolve this legal relationship w/out affording all citizens access to means it has prescribed for doing so.” Court emphasized that
only courts could grant divorce & that π’s therefore were “faced w/ exclusion from only forum effectively empowered to settle their disputes.
Marriage is a fundamental right. Spouses cannot get a divorce without state approval, thus state court is only avenue to such a
proceeding. State gave interest of court fee allocations where there are other alternatives to meet these interests. Thus, it held that the
gov was constitutionality obligated to waive filing fees for indigent individuals seeking a divorce. (Overriding significance – key to knowing
it’s not RBT, but SS). If you can’t get divorced, then you cannot exercise the fundamental right of “marriage.” Thus, unconstitutional.
Prisoner’s Right to Access Courts
The Supreme Court has held that there is a fundamental right for a prisoner to access the courts. For instance, the court has held that the
government cannot abridge a defendant’s right to habeas corpus appeals nor can the government prevent inmates from getting or offering any
kind of legal assistance. In Bounds v. Smith, the court held that fundamental right of access to the courts includes the right to a meaningful access
to court. If a prisoner was to challenge their access to courts, they must prove an actual injury due to a less meaningful access to courts.
Bounds v. Smith—Inmates claimed access to court b/c state failed to provide legal law library. Court held that prisons/state does need to
provide for an adequate law library. Prisoners have a constitutional right to access courts. Gov has affirmative obligation to provide prisoners
w/facilities that can facilitate access to courts. “The fundamental constitutional right of access to the courts requires prison authorities
to assist inmates in preparation & filing of meaningful legal papers by providing prisoners w/ adequate assistance from persons
trained in the law.” Court spoke explicitly of a “fundamental constitutional right of access to the courts.” If a lawyer must do legal research
before filing a well-pled complaint so does a pro se prisoner. They would have no way to rebut the state’s answer without proper research.
Lewis v. Casey—Court narrowed & repudiated parts of Bounds. A federal district court in AZ found systematic inadequacies in law libraries &
legal assistance available to prisoners including failure to adequately update legal materials, unavailability of photocopiers, lack of access to
law libraries for “lock-down prisoners,” & inadequacy of legal assistance for illiterate & non-English-speaking inmates. Held: Invalid claim. The
inmate must have proper standing by alleging shortcoming in library or legal assistance program hindered their right to pursue a legal claim.
No right to law library but to access courts.
 In order to est. a violation of Bounds, an inmate must show that the alleged inadequacies of a prison’s library facilities or legal
assistance program caused him ‘actual injury’ – that is, ‘actual prejudice w/respect to contemplated or existing litigation, such as the
inability to meet a filing deadline or to present a claim”. Court specifically rejected view that Bounds created right of access to
law libraries for prisoners. The inmates lacked standing b/c they failed to demonstrate requisite injuries from inadequacy of
prison’s law library.
 The system-wide relief contained in district court’s injunction was unjustified. The trial court “failed to accord adequate deference
to judgment of prison authorities.” Right of access for prisoners, like all prisoners’ rights, is evaluated under RBT; that is, “a
prison regulation impinging on inmates’ constitutional rights ‘is valid if it is reasonably related to legitimate penological interests.’”
It was reasonable for prison to restrict access to legal materials for inmates in “lockdown” b/c of security concerns, so ø review too strictly.
NOT A FUNDAMENTAL RIGHT (Rational Basis):
Government regulations of abortions while not taking away the right
Although the right to abortion is a fundamental right, the right is not absolute. The state is allotted some safeguards in the protection of women and
life. Nonetheless, the safeguards cannot take away the right to abortion completely. During previability, the women’s interest is higher than the
state’s interest and post viability the state’s interest is higher. Merely dissuading a woman from getting an abortion is fine as long as it is not
arbitrary and is not done for the purpose of discouraging getting an abortion only.
City of Akron v. Akron Center, PP v. Casey, Thornberg
Gonzales v. Carhart—Court upheld federal Partial Birth Abortion Ban Act. “The Act’s ban on abortions that involve partial delivery of a
living fetus furthers the Gov objectives. No one would dispute that, for many, is a procedure it-self laden w/the power to devalue
human life. Congress could nonetheless conclude type of abortion proscribed by Act requires specific regulation b/c it implicates additional
ethical & moral concerns that justify special prohibition. Congress determined abortion methods it proscribed had a “disturbing similarity to
killing of a newborn infant,” & thus it was concerned with “drawing a bright line that clearly distinguishes abortion and infanticide. Court found
federal law is constitutional even though it has no exception for allowing the procedure where necessary to protect the health of the mother.
“Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other
contexts. The medical uncertainty over whether the Act’s prohibition creates significant health risks provides a sufficient basis to
conclude in this facial attack that the Act does not impose undue burden. The law is not void for vagueness b/c it is explicit as to what
constitutes violation & what requirements to find such a violation. Also, no undue burden b/c it only prohibits one proceeding. Evidence is too
neutral to say intact is safest way. Further, there is a state interest of protecting women and life.
Funding for Abortions The Supreme court has held that as long as a restriction on the government funding abortions places no substantial
obstacle to getting an abortion there is constitutional right for such funding.
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Maher v. Roe—Court upheld constitutionality of state law that denied use of Medicaid funds for nontherapeutic first trimester abortions,
although law provided funding for medically necessary first trimester abortions. Law “places no obstacles – absolute or otherwise – in
pregnant woman’s path to abortion. Indigent woman who desires abortion suffers no disadvantage as consequence of decision to
fund childbirth. Indigency that may make it difficult –some cases impossible – for women to have abortions is not created nor
affected by regulation.” EP claim btw funding for abortions & child-birth. But, no suspect class & statute places no restriction on abortion
choices, thus passing RB test.
Harris v. McRae— Congress prohibited the use of any federal funds to reimburse the cost of abortions under the Medical program except
under certain specified circumstances. Plaintiff argues it was medically necessary. “It cannot be that b/c gov may not prohibit
contraceptives, or prevent parents from sending children to a private school, gov, therefore, has affirmative constitutional obligation
to ensure all persons have financial resources to obtain contraceptives or send children to private schools.” Roe “implies no limitation
on the authority of a State to make a value judgment favoring childbirth over abortion, & to implement that judgment by allocation of public
funds. Places no substantial obstacle in the right to get abortion. As long as you can get it, the gov doesn’t have to fund it.
Right to Physician Assisted Suicide
The Supreme Court has held that physician assisted suicide is not a fundamental right.
Washington v. Glucksberg—Court found valid a WA law that it is a crime for a person to promote a suicide attempt when he knowingly
causes or aids another person to attempt suicide. In almost every State – indeed, in almost every western democracy – it is a crime to assist
suicide. B/c the Court determined that “the asserted ‘right’ to assistance in committing suicide is NOT a fundamental liberty interest protected
by the DPC, the WA law was to be upheld so long as it met a RBT. Court found law reasonably served many legitimate interests. State has an
important interest in the preservation of life, in protecting integrity and ethics of the medical profession, in protecting vulnerable groups, and
in stopping the path to voluntary and even involuntary euthanasia. Looked at history & tradition: It has always been a crime in every state.
State interest of preserving human life, protecting vulnerable people, & want to prevent involuntary euthanasia. There is a diff in
refusing treatment b/c there one would die of natural causes.
Vacco v. Quill—NY law where it’s crime to aid another to commit or attempt suicide, but patients may refuse even lifesaving medical
treatment. Held to not violate the EPC. Not suspect class so apply rational basis. All are entitled to refuse all treatment while everyone is not
entitled to suicide. Employing a rationality test to examine the guarantees of the Equal Protection Clause, the Court held that New York's ban
was rationally related to the state's legitimate interest in protecting medical ethics, preventing euthanasia, shielding the disabled and terminally
ill from prejudice which might encourage them to end their lives, and, above all, the preservation of human life. Moreover, while acknowledging
the difficulty of its task, Court distinguished btw refusal of lifesaving treatment & assisted suicide, by noting the latter involves criminal elements
of causation & intent. No matter how noble physician's motives may be, he may not deliberately cause, hasten, or aid a patient's death.
Right to Protection for Sexual Orientation and Sexual Activity
The Supreme Court has held that there is no constitutional protection for sexual orientation and sexual activity. However, the court held that the
fundamental right of privacy may well include the concepts of personal autonomy and the freedom to make intimate, sexual choices without state
interference. The court has not been clear as to what standard is to be applied, but the case law appears to apply a more searching standard of
rationale basis.
Lawrence v. Texas— Police found two men engaged in sexual conduct in their home & they were arrested under Texas statute that prohibited
such conduct btw 2 people of the same sex. To control a personal relationship is within liberty of persons to do so (The court applied a rational
basis plus test but didn’t really say this) Court overruled Bowers and held states may not prohibit private consensual sexual activity
between consenting adults of the same sex & spoke of constitutional protection for all individuals in the most intimate and private aspects of
their lives. Morals are not a sufficient reason to justify this. History and tradition says there were no laws against homosexuals but against both
men and women. Although homosexual conduct is immoral, it’s the job’s court to define liberty rights. Court recognizes family autonomy and
personal dignity and concludes the law is just animosity toward an unpopular group with no legitimate state interest.
Right to an education
The Supreme Court has held that there is no right to an education. The state’s system need only bear some rational relationship to legitimate state
purposes.
San Antonio Ind. School District v. Rodriguez—Court expressly rejected the claim that education is a fundamental right. State provides free
public education & provides funding based on # of students in district making up difference in taxes. The tax results in large disparity per
student spending btw poor & rich districts. Π challenged this system on 2 grounds: Held: No fundamental right. RBT
1. It violated equal protection as impermissible wealth discrimination, and
2. It denied the fundamental right to education.
 Court rejected the former argument by holding that poverty is not a suspect classification and therefore discrimination
against poor only need meet rational basis review.
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
Court rejected the claim that education is a fundamental right. “It is not the province of this Court to create substantive
constitutional rights in the name of guaranteeing equal protection of the laws.
The key to discovering whether education is ‘fundamental’ lies in assessing whether there is a right to education explicitly or implicitly
guaranteed by the Constitution. “Education, of course, is not among the rights afforded explicit protection under our Federal Constitution.
(Looking to the text of the Constitution). Nor do we find any basis for saying it is implicitly so protected. Anything short of "are these kids not
being educated?" – is going to pass under rational basis. Here, system does not inhibit any rights & is thus rationally related to interest.
Right to access courts  Bankruptcy fees
The Supreme Court has held that there is no constitutional right to obtain a discharge of one’s debts in bankruptcy. Since there is no constitutional
right to bankruptcy, there is no constitutional requirement that the court waive the fees.
United States v. Kras—Court refused to extend Boddie to require waiver of filing fees in other civil proceedings. Π receives public assistance
as well as small amount of income he earns himself. Π ø even afford to save up for full year to afford bankruptcy-filing fee. He submitted
affidavit that he could not afford $60 filing fee or promise that he could afford to pay it in installments. Court held law valid under RBT as
Constitution did not require that gov waive its filing fee for bankruptcy & distinguished Boddie on 2 grounds: Filing for bankruptcy is
not a fundamental right like marriage. Also, unlike marriage there are other alternatives to bankruptcy such as negotiating agreements with
creditors. No fundamental right to file for bankruptcy.
1. Divorces relates to constitutional right to marry; a person only could exercise that right if he or she received a divorce from
an existing spouse. Denial of access to judicial forum in Boddie touched directly on martial relationship & on associational
interests that surrounded est & dissolution of that relationship.
a) Kras’s alleged interest in the elimination of his debt burden, and in obtaining his desired new start in life,
although important and so recognized by enactment of the Bankruptcy Act, does not rise to the same
constitutional level.
2. The state has a monopoly in granting divorces. A person wishing a divorce has no other way to get one than through
courts. BUT, Court said, there are alternative ways for person to solve problem of debts.
a) Bankruptcy is not the only method available to a debtor for adjustment of his legal relationship w/his
creditors…however unrealistic remedy may be in particular situation, debtor, in theory, & often in actuality,
may adjust his debts by negotiated agreement with his creditors…Resort to court is not Kras’ sole path to
relief. Boddies emphasis on exclusivity finds no counterpart in the bankrupt’s situation.
COURT THEN ASKS WHETHER THE FUNDAMENTAL RIGHT HAS BEEN INFRINGED?
IF NOT A FUNDAMENTAL RIGHT, DO ONE SENTENCE TO SAY THE RIGHT IS INFRINGED AND GO STRAIGHT TO RATIONAL BASIS
REVIEW
To determine whether a fundamental right has been infringed, courts will consider the directness and substantiality of the interference. If the law
imposes a direct and substantial interference, the court will review the law with strict scrutiny. If the law imposes some injury but not a direct or
substantial interference, the law will be subject to rational basis even if the law is normally held to a higher standard. If the law imposes no
interference the court will find that the law does not violate substantive due process.
IF THERE IS AN INFRINGEMENT OF ANY SOURCE KEEP GOING, IF NOT STOP
IS THIS A LAW THAT EVERYONE IS TREATED THE SAME OR DOES IT CREATE CLASSIFICATIONS?
Equal Protection
The Fourteenth Amendment provides that “no state shall deny to any person within its jurisdiction the equal protections of the laws.” When the
Supreme Court reviews cases regarding Equal Protection, it determines the specific class being regulated and applies a corresponding level of
scrutiny. It then analyzes whether the means used fits the governmental interest.
WHO HAS ACCESS TO THAT RIGHT. WE ARE BEING DEPRIVED OF A RIGHT TO ABORTION BECAUSE WE BELONG TO THEIR GROUP.
WE ARE BEING DEPRIVED OF THE RIGHT TO MARRY BECAUSE WE ARE A SAME SEX COUPLES
Level of Scrutiny 
STRICT SCRUTINY ANALYSIS
Since it has been determined the law draws distinction among people in regards to a fundamental right, the court must apply the strict scrutiny.
Under the strict scrutiny analysis, the law must be necessary to achieve a compelling governmental interest and the goal must be narrowly tailored.
The likelihood of success is fatal
Governmental Interest
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The burden is on the government to show it has a compelling governmental interest. There must be a strong basis in evidence to prove the
compelling interest.
Means/Fit
The law must be narrowly tailored and the goal must not be able to be achieved with a less discriminatory alternative.
RATIONAL BASIS REVIEW
Under the rational basis test, the government’s interest must be legitimate and the regulation must reasonably related to that interest.
The likelihood of success is high
NOTE: IF TALKING ABOUT SEXUAL ORIENTATION ITS GOING TO BE RATIONAL BASIS WITH A BITE
Government’s Interest
The governmental interest must be legitimate. The court grants great deference to states in determining what interests are legitimate. Under
rational basis, the actual purpose behind the law is irrelevant if any state of facts reasonably may be conceived to justify its discrimination.
Means/Fit
The burden on is on the challenger to show the law is not rationally related to a legitimate governmental interest. Whether the law is
underinclusive or overinclusive does not fail rationale basis. However, the law cannot be arbitrary or unreasonable.
WAS THERE AN INFRINGEMENT OR LIMITATION ON A FUNDAMENTAL RIGHT?
I DON’T LIKE THAT LAW
Due Process
The Fifth and Fourteenth Amendment, respectively, provides that neither the United States or nor state governments “shall deprive any person of
life, liberty, or property without due process of law.” Further, the Ninth Amendment provides that “the enumeration in the Constitution of certain
rights shall not be construed to disparage others retained by the people.” Thus, the rights enumerated in the Constitution are not exhaustive.
Justice Douglas held that there is a penumbra of rights guaranteed in the Constitution, including the right to privacy. These cases been interpreted
to require two aspects of due process: substantive due process and procedural due process.
Substantive Due Process
Substantive Due Process determines whether there is adequate justification for government action on infringing of a person’s life, liberty, or
property rights. When determining if the government’s action is adequate, the court applies the appropriate level of scrutiny. If the law is regulating
a fundamental right, strict scrutiny will be applied. If the law is not regulating a fundamental right, rational basis will be applied. (If the law is
regulating a women’s fundamental right to abortion, the court will determine if the law places an undue burden on that right.)
Level of scrutiny
STRICT SCRUTINY ANALYSIS (ALL FUNDAMENTAL RIGHTS EXCEPT ABORTION)
Since it has been determined the law is regulating a fundamental right, the court must apply the strict scrutiny. Under the strict scrutiny analysis,
the law must be necessary to achieve a compelling governmental interest and the goal must be narrowly tailored.
The likelihood of success is fatal
Governmental Interest
The burden is on the government to show the law is necessary to achieve a compelling governmental interest. There must be a strong basis in
evidence to prove the compelling interest.
Means/Fit
The law must be narrowly tailored and the goal must not be able to be achieved with alternatives that do not substantially infringe on the
fundamental right.
Undue Burden test (ABORTION ONLY)
In order for a regulation on abortion to be constitutional, the government must show the regulation is rationally related to a compelling state interest
and it places no undue burden on a woman’s right to an abortion.
Compelling interest
The burden is on the government to show the law is necessary to achieve a compelling governmental interest. There must be a strong basis in
evidence to prove the compelling interest.
Rationally Related
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The burden on is on the challenger to show the law is not rationally related to a legitimate governmental interest. Whether the law is underinclusive
or overinclusive does not fail rationale basis. However, the law cannot be arbitrary or unreasonable.
Undue Burden
The state can regulate and place restrictions on abortion so long as these restrictions do not place an undue burden on the woman’s ability to
make an abortion decision. An undue burden exists, and therefore a provision of law is invalid, if its purpose of effect is to place a substantial
obstacle in the path of a woman seeking an abortion before the fetus is viable.
PP v. Casey
Rational Basis Review
Since it has been determined that a non- fundamental right has been infringed a rational basis test does not apply. Under the rational basis test,
the government’s interest must be legitimate and the regulation must reasonably related to that interest.
The likelihood of success is high
Government’s Interest
The governmental interest must be legitimate. The court grants great deference to states in determining what interests are legitimate. Under
rational basis, the actual purpose behind the law if any state of facts reasonably may be conceived to justify its discrimination.
Means/Fit
The burden on is on the challenger to show the law is not rationally related to a legitimate governmental interest. Whether the law is
underinclusive or overinclusive does not fail rationale basis. However, the law cannot be arbitrary or unreasonable.
Procedural Due Process
(Only do this once it has been determined a deprivation)
Procedural due process refers to the procedures that the government must follow before it deprives a person of life, liberty, or property. Classic
procedural due process issues concern what kind of notice and what form of hearing the government must provide when it takes a particular
action. The court first determines if there was an intentional, deliberate deprivation of life, liberty, or property interest. If the court finds a deprivation
of life, liberty, or property, it then determines if there were sufficient procedures to satisfy due process.
Was there a deprivation?
A deprivation of a life, liberty, property interest arises only when the government action is deliberate, intentional, reckless, or with deliberate
indifference, or the government action shocks the conscience. Negligence is not sufficient to constitute a deprivation. The Due Process Clause
does not provide a duty of protection from private actors if the state did not create or worsen the problem.
Special Relationship? The court has made an exception to this when a government actor is acting in an emergency situation?
Daniels v. Williams—A prisoner claimed his freedom from bodily harm, protected liberty interest, was denied without due process when he
tripped on a pillow negligently left on staircase by prison guard. Court ruled prisoner did not present a constitutional claim under the DPC. DPC
is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property…Not only
does the word ‘deprive’ in the DPC connote more than negligent act, but we should not open federal courts to lawsuits where there
has been no affirmative abuse of power.” If someone engages in negligence without the intent to sabotage that does not trigger due
process. The court does not want to involve tort law with this kind of stuff.
County of Sacramento v. Lewis— Lewis was passenger on motorcycle that was chased by police who were responding to different call.
When motorcycle stopped, police cruiser did not. Lewis was hit & killed at the scene. Court said in emergency circumstances the gov may only
be held liable if its officers’ conduct “shocks the conscience.” This requires showing that officers acted w/ intent of causing harm to victim.
We hold that high-speed chases w/ no intent to harm suspects physically or to worsen their legal plight do not give rise to liability
under 14th A. Officer’s behavior was not done w/ such intent to harm & thus could not be basis for liability. The constitution does not protect for
lack of due care. Conduct such as conscious disregard in this case does not rise to deliberate & intentional acts in emergency situations. This
implicitly suggests that deliberate indifference is permissible in nonemergency situations where deliberation is possible. Is it an emergency? If
yes, Court gives gov a lot more latitude in what they are allowed to do.
DeShaney v. Winnegabo County Dept. of Social Services— Custody of child was given to his father, who was accused of multiple incidents
of child abuse. Child services failed to take custody of child after their awareness of their abuse, & child was beaten to point of brain damage.
The State’s failure to protect individual against private violence simply ø constitute a violation of the DPC. Court broadly held gov generally has
no duty to protect individuals from privately inflicted harms, thus no constitutional violation b/c child was not in custody of gov & b/c
abuse occurred in hands of private party: (the father) must have state action. “Nothing in the language of the DPC itself requires the State
to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the state’s
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power to act, not as a guarantee of certain minimal levels of safety and security.” Although the state may have been aware of the dangers it did
nothing to create it or put the child in a worse position.
Court recognized two narrow situations where the government has a duty to provide protection form privately inflicted harms.
1) The government has limited the ability of a person to protect himself or herself, such as when there is incarceration or
institutionalization, thus assuming responsibility for the individual.
2) There is a special relationship btw gov & injured individual, such as when gov took affirmative step to place person in danger.
Town of Castle Rock v. Gonzales—Mother placed restraining order against father & Colorado has law requiring enforcement of restraining
orders & order itself included language-mandating enforcement by police. Father came by & took children while they were outside. She
contacted police several times & nothing was done. Eventually, father shot up police station & children were found murdered. Court held
there’s a property interest only if there is an entitlement. There’s no duty to provide protection even if state law req. police to enforce
restraining orders. There was no mandatory duty in part of restraining order. There is no property interest in restraining order to entitle any
specific action. Thus, no deprivation of property to claim. “A benefit is not a protected entitlement if government officials may grant or
deny it in their discretion.” Police always have discretion as to how to enforce a law & prosecutors always have discretion as to whether to
initiate a criminal action. No property interest for purposes of DP. “It is by no means clear that an individual entitlement to enforcement of a
restraining order could constitute a ‘property’ interest for purposes of the DPC. Such a right would not, of course, resemble any traditional
conception of property. Only if gov literally creates danger or person is in gov custody, is there any constitutional duty for gov to provide
protection. State & local gov may create duties & remedies under their law, but they don’t exist under Constitution.
Is there a life, liberty, or property interest?
Liberty interest
A liberty interest generally deals with the greatest deprivation of freedom. The Supreme Court has held that reputation, alone, is not enough to
constitute a liberty interest. However, reputation, coupled with a property interest will constitute a liberty interest. (reputation, confinement,
marriage, occupation, travel problems, child rearing, contract, education, god?, useable sufficient knowledge)
Goss v. Lopez—Court invalidated Ohio statute when students of public school system were suspended from school w/out a hearing either
before or after suspensions. State had provision in their constitution that made it a right to education. Held: Students have a liberty interest
in not being disciplined by a public school, in part b/c suspension from school would damage the student’s reputation. Where a
person’s reputation is at stake, coupled with the state’s conferred right of education, it is deprivation of students liberty. A
suspension on their record could seriously damage their reputation, which would be a liberty interest while the deprivation of the education
conferred by the state was a property interest. Court found there was property interest in continued receipt of education when gov creates a
public school system & requires children to attend. Court emphasized importance of education, terming it “perhaps most important function
of state & local governments,” & concluding “the total exclusion from education process for more than a trivial period” is a deprivation of
property & liberty requiring due process. At the very minimum, students facing suspension & consequent interference w/protected property
interest must be given some kind of notice and afforded some kind of hearing. For a suspension of 10 days or less, student must be provided
oral or written notice of charges & “an explanation of evidence authorities have & an opportunity to present his side of story
Paul v. Davis—Court held harm to reputation, by itself, is not deprivation of liberty. Police sent local memo w/ photos of charged shoplifters. Π
was on memo but his charges had been dismissed. He claims reputation is ruined & objected saying his reputation, a liberty interest, was
denied w/out any due process. The interest in reputation alone, however serious, is neither liberty nor property guaranteed against
state deprivation w/out due process of law. The state did not confer any right through statute here. Court doesn’t want to apply tort law to
these cases. Reputation not enough. Liberty interests are created either by Bill of Rights or by state law. In deciding if there is a liberty interest,
the Court is to look at the positive law and not base its decision on a conclusion about the importance of the interest to the individual.
Liberty interest for Prisoners  There is a liberty interest for prisoners only if there is a significant deprivation of freedom that is atypical of usual
conditions of confinement.
Sandid v. Conner—Court held that regardless of content of statutes & regulations, there is liberty interest only if there is significant deprivation
of freedom, which is atypical to usual conditions of confinement. ∆ was subject to strip search & lashed out w/ anger & foul language & got
charged for doing so w/ 30 days of disciplinary segregation. Held: No Deprivation of Liberty. There was no major disruption of the liberty
interest b/c ∆ wasn’t confined for longer than his term period. Courts want to give deference to state prisons as to how they carry on their day
activities. Being placed in disciplinary segregation is cruel and unusual punishment, prisoners will not succeed in seeking judicial review of
prison discipline. If prisoner is claiming gov action is causing or increasing incarceration, then courts are likely to recognize a deprivation of
liberty; but if prisoner is challenging conditions of confinement, then DP challenge is much less likely to succeed. Sufficient protection does not
have to be accompanied by DP unless there is both mandatory language in the relevant law & it is a significant, atypical deprivation of
freedom. This is due to the need to encourage prisons to write regulations & based on desire to minimize federal court oversight of prisons.
Property Interest
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In order for one to have a property interest, the person must have more than an abstract or desire for the interest. The interest must be more than
a unilateral expectation, rather it must be a legitimate claim of entitlement. Generally, due process is triggered when a government statute entitles
you to the interest and then denies the individual that interest.
Goldberg v. Kelly—Court held that individuals receiving welfare have a property interest in continued receipt of benefits and the gov must
provide due process before it terminates benefits. If the government takes away a benefit the court looks to the kind of grievous loss
that would require stricter circumstances of due process. Here, need timely and adequate notice and fair hearing. Recipient’s interest
in avoiding grievous loss has to outweigh the government’s interest. Here, we are dealing with termination of aid, which may deprive recipient
means to live. Thus, state’s interest in conserving time & money is weak b/c it can be met w/ other alternatives. A fair hearing is enough don’t
need a judicial trial, but it did mandate there be an adversarial hearing, with the right to present evidence and witnesses, in front of a neutral
decision maker. B/c welfare is property gov must provide due process – notice & a hearing – before terminating benefits. When gov offers us
something, gov may not take them away w/out DP of law. Public assistance is not charity, but means to “promote general welfare, & secure
Blessings of Liberty to ourselves & our Posterity.” Court relied heavily on Charles Reich that government-created benefits, such as
welfare, play same role in a person’s life as traditional property. “It may be realistic today to regard welfare entitlements as more like
‘property’ than a ‘gratuity.’ Much of the existing wealth in this country takes the form of rights that do not fall within traditional
common-law concepts of property.”
Board of Regents v. Roth— Teacher employed by Wisconsin State University was not rehired & contended that failure to provide a hearing in
connection with nonrenewal denied due process. Court found there was NOT a property interest b/c under K teacher could not have a
reasonable expectation that he would be rehired. Held: No liberty or property interest. School caused no damage to his reputation, nor did it
prevent him from finding another job. He did not have property rights in job b/c he had one-year K that specifically stated he would no longer be
employed at the end of the year. The “important fact in this case is that the contract specifically provided employment was to terminate
on June 30. They did not provide for k renewal absent sufficient cause; they made no provision for renewal whatsoever. Court defined
property not based on importance of job to individual, but rather based on expectation of continued employment. To have property interest in a
benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He
must have a legitimate claim of entitlement to it. Property interests, of course, are not created by the Constitution. Rather, they are created &
their dimensions are defined by existing rules or understandings that stem from an independent source such as state law – rules or
understandings that secure benefits & that support claims of entitlement to those benefits.
Were there sufficient procedures to satisfy due process?
It must next be determined what procedures are required for ____ interest. In determining if one should be granted a better or more detailed
procedural process the court applies a three part balancing test. First the court determines whether the person’s interest that will be affected by the
official action. Second, the court determines and balances the risk of erroneous deprivation of such interest through the current procedures used
and the value of additional or substitute procedures. Finally, the court then balances the government’s interest including any burdens on the
government.
Person’s interest affected
Fact Based – how important is the interest
Risk of erroneous deprivation and value of additional or substitute procedures
Fact Based
Burdens on the Government
Fact Based – has to be more than resources or money
Mathews v. Eldridge— Eldridge challenged validity of administrative procedures for est. whether there exists a continuing disability entitling a
recipient to Social Security benefits. Eldridge was notified his benefits would terminate w/out an opportunity for evidentiary hearing before they
terminated. Held: For disability benefits something less than evidentiary hearing is sufficient. Apply the test the court reasoned this is
different from Goldberg because disability benefits is not based on financial need like Gold. There would be no risk of erroneous deprivation
b/c all of the docs were properly filed and they were neutral reports from doctors. Looking at cost as a factor only there will be increase b/c of
increase in cases and cases may be exhausted to receive more money. Court held when gov terminates Social Security disability benefits, it
only needs to provide a posttermination hearing & articulated a balancing test for deciding what procedures are required when there has been
a deprivation of life, liberty, or property & DP is required:
1) The importance of the interest to the individual, (private interest affected by official action)
o Court distinguished Goldberg and welfare benefits from Social Security payments explaining that welfare benefits
were based on financial need, but “eligibility for disability benefits, in contrast, is not based upon financial need.” Also,
Court believed that ppl who lose SS disability benefits still can obtain other sources of income, such as welfare.
2) The ability of additional procedures to reduce the risk of an erroneous deprivation (increase accuracy of the fact-finding),
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Decisions about “whether to discontinue disability benefits will turn, in most cases, upon routine, standard, and
unbiased medical reports by physician specialists.” The Court said, “potential value of an evidentiary hearing, or
even oral presentation to the decision maker, is substantially less in this context than in Goldberg.
3) The burdens imposed on the government by requiring the procedures – government’s interests.
o Court believed there would be substantial expense, as individuals receiving benefits would likely exhaust all appeals if
they could keep receiving funds until the procedures were completed. There would thus be both financial and
administrative burdens on the government if it were required to provide due process before terminating SS
disability benefits.
Based on the 3 part-balancing test the Court “concluded that an evidentiary hearing is not required prior to the termination of disability benefits.
o
District Attorney’s Office For the 3rd Judicial District v. Osborne—Court considered both procedural & substantive DP claims for right to
post conviction DNA testing. Osborne, who had been convicted of rape & other crimes, claimed sophisticated DNA testing would exonerate
him. Court rejected procedural DP claim by concluding that procedures created by AK Law were sufficient to meet DP. We see nothing
inadequate about procedures AK has provided to vindicate its state right to post conviction relief in general, & nothing inadequate about how
those procedures apply to those who seek access to DNA evidence.” Court also rejected substantive due process right concluding the
matter is best left to legislatures explaining: “Est. freestanding right to access DNA evidence for testing would force us to act as
policymakers, & our substantive DP rulemaking authority would not only have to cover right of access but myriad of other issues. Courts don’t
want to add another fundamental right; they are reluctant to do so. They do not want to become policy makers. Liberty interest in being free.
FIRST AMENDMENT—Three categories
The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or
abridging the freedom of speech, or of the press; or of the right of the people peaceable to assemble, and to petition the government for a redress
of grievances.” The Freedom of Speech protects the free flow of ideas, one of the most important functions in a democratic society. Thus,
whenever the government seeks to regulate this freedom the court will weigh the importance of these rights against the interests or policies sought
to be served by the regulation. The Freedom of Speech clause only restricts government regulation of private speech.
General Considerations
When determining whether a government regulation violates the First Amendment Free Speech Clause, the court will consider: (1) whether the law
is content based or content neutral; (2) whether the law is vague; (3) whether the law is overbroad; (4) whether the law acts as a prior restraint.
CONTENT BASED V. CONTENT NEUTRAL
Content Based
Laws, that by their terms, distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based.
Content-based laws are reviewed under strict scrutiny in which the law must be narrowly tailored to serve a compelling governmental interest.
Content Neutral
Laws that are content neutral are regulations that are unrelated to the content of speech. Content neutral laws pose a less substantial risk of
excising certain ideas or viewpoints from the public dialogue. A content neutral regulation will be sustained if it advances important governmental
interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests and
have a reasonable alternative avenue of communication unless there are secondary effects.
Turner Broadcasting System, Inc. v. FCC— Federal law req. cable co. to carry local broadcast stations was content-neutral b/c co. were
required to include all stations, whatever their programming. Law might also be content-neutral if regulates conduct & has effect on speech
w/out regard to its content. GR is that content-based restrictions (suppress, disadvantage, or impose differential burdens) on speech must
meet SS, while content-neutral regulation (unrelated to speech) only need meet IS. “Gov action that stifles speech on account of its
message, or requires utterance of particular message favored by Gov, contravenes essential First A right.” Thus, First A is subject
only to narrow & well understood exceptions, does not countenance governmental control over content of messages expressed by private
individuals. Not restricting content of channels, but rather requiring certain channels to broadcast on network.
Boos v. Barry— Law prohibited signs of critical foreign gov w/in 500ft of foreign embassy if brings foreign gov. into public hatred. Wanted to
protect goal of diplomats & not prohibit specific viewpoint, but determined by policies of foreign govt. Law, in very terms, drew distinction
among speech based on viewpoint expressed, thus CB on subject matter. Regulation that ø favor either side of political controversy is
nonetheless impermissible b/c 1st A’s hostility to CB regulation extends to prohibition of public discussion of entire topic. Idea is foreign
countries are guest in our home, so we ø want to offend them. Thus, interest fails SS. Just b/c not viewpoint based ø mean it is CN.
National Endowment For the Arts v. Finley— Federal agency provided funds for arts. As part of approval process, congress adopted law
that allowed agency to take into consideration standards of decency & respect for American public. Court held law valid b/c federal law did
not require NEA consider decency & respect for values; rather, statute permitted such consideration. Congress is permitted to selectively
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fund a program to encourage certain activities it believes are in public interest. When Gov is acting as patron rather than sovereign,
consequences of imprecision aren’t constitutionally severe.” When gov is giving subsidies, imprecise criteria is permitted, even if not tolerated
in regulatory scheme. Court rejected content-based argument. Restriction here is not absolute & decency & respect are only taken into
consideration. While agency was limited in resources it’s inevitable to look at content.
Government Spending  When it comes to funding, as long as the government doesn’t mandate a specific viewpoint, the government can
choose how they want to spend their money. If the government is just “considering” the kind of speech for spending purposes the law is likely to be
upheld. (National Endowment, supra)
Secondary Effects
If the restriction is content neutral, that is when the predominate concern is not based on content, the court will consider secondary effects of the
activity to determine if the restriction is constitutional. The court has never expanded the secondary effects analysis beyond adult industry. (Intent
was never to regulate speech, so it needs to go into a content-based analysis)
City of Renton v. Playtime Theaters, Inc.—Court rejected 1st A challenge to zoning ordinance that prohibited adult movie theaters w/in 1,000
ft of any residential zone, single or multifamily dwelling, church, park, or school. Ordinance was clearly CB in very terms: It applied only to
theaters that showed films w/ sexually explicit content. When looking at content-based material it can be found to be content neutral when
looking at its secondary effects (such as crime, & not to restrict speech). A law that is justified in content-neutral terms is deemed contentneutral even if it is content-based on its face. Court wants to find a way to allow legislation to stand even if it may not be the best-drafted
legislation. Gov was only concerned w/ quality of urban life. Thus, the secondary effects in of adult movies may harm & survives IS.
Government Speech – Exception to the First Amendment when Government is the “speaker”
The Supreme Court has held that when the government is the speaker, the First Amendment does not apply at all or provide a basis for
challenging the government’s action. The Court most clearly held this in Pleasant Grove, Utah v. Summum.
Pleasant Grove City, Utah v. Summum— Valid. Summum, religious org., sent letter to mayor asking to place monument in city's park.
Although park already housed monument to Ten Comm., mayor denied request b/c monument ø "directly relate to history of city." By allowing
placement of donated permanent monuments in public park, city was exercising form of gov speech not subject to scrutiny under
free speech clause. When state has permanent monuments displayed on public property, it typically represents gov speech. FSC restricts
gov regulation of private speech; NOT gov speech. Gov’s own speech is exempt from 1st A scrutiny.” Fact 10 Comm. monument was
donated by private group ø prevent gov from adopting it & making it gov speech. Gov used monuments to display specific message.
May not literally convey message of object or donor. A park ø accommodate all permanent monuments like it could try to accommodate all ppl.
Vagueness and Overbreadth Doctrine
Laws that regulate speech can be challenged as facially unconstitutional on the grounds that they are unduly vague and overbroad.
Vague
A law is unconstitutionally vague if the law is so ambiguous that a reasonable person cannot tell what speech is prohibited and what is permitted.
The policy behind the vagueness doctrine is that it would be unjust to punish a person without providing clear notice as to what conduct is
prohibited and the law would end up having a chilling effect on speech.
Overbroad
A 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 applies to can argue that it would be unconstitutional as applied to others.
Coates v. City of Cincinnati— Court declared unconstitutional ordinance that made it criminal offense for “3 or more persons to assemble on
any of the sidewalks…& there conduct themselves in a manner annoying to persons passing by.” Court said law “is unconstitutionally vague
b/c it subjects exercise of right of assembly to an unascertainable standard. Conduct that annoys some people ø annoy others” & ppl
would have to guess what behavior would be punished. Thus, annoyance will depend entirely on how police officer feels. Can’t make
annoying people a crime. Law was overbroad in that political demonstrations would be prohibited if spectators found them annoying, & it
authorizes punishment of constitutionally protected conduct. Aimed directly at activity protected by Constitution.
Substantial Regulation
The law must substantially regulate more speech and conduct than could be regulated.
Applied to Others
The court allows a litigant to bring a claim on behalf of others if the government is infringing on their First Amendment Free Speech rights, because
such issues need to be addressed promptly. Further, the court wants to stop the government from infringing on citizens’ free speech rights
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regardless of who is harmed and the court does not want to encourage people to violate the law for the purpose of standing. The overbreadth
doctrine thus acts as a strong medicine. However, the court will not find a law is overbroad if it only affects 1 or 2 people.
Schad v. Borough of Mount Ephraim—Ordinance prohibiting all live entertainment was challenged by adult bookstore that had live nude
dancers. Court assumed nude dancing ø protected by First A. But law prohibited much more speech than just nude dancing: It outlawed all live
entertainment – all plays, all concerts, & all athletic events. The nude dancing establishment was allowed to challenge the law, in part, b/c of
how it regulated the speech of others not before the Court. (pre-Renton) Law held to be overbroad. Entertainment has always been protected
including live entertainment. The ordinance here just covers substantially more speech in this area then is protected in constitution.
Board of Airport Commissioners of the City of LA v. Jews for Jesus, Inc.—Court declared unconstitutional ordinance prohibiting any
person “to engage in First A activities w/in Central Terminal Areas at LAX.” Court found law was impermissibly overbroad b/c it prohibited “all
protected expression…It prohibits even talking & reading, or the wearing of campaign buttons or symbolic clothing.” Court did not
find law was vague; quite the contrary, Court thought law was clear in prohibiting all forms of First A activity & concluded it was clearly
overbroad. Since law prohibits all First A activity, almost every person in LAX can be charged even if wearing symbolic clothing. No
governmental interest to justify prohibition. *Law would’ve been vague but not overbroad if law prohibited all speech not protected by 1st A
Prior Restraints
A prior restraint is as an administrative order or a judicial order that prevents speech from occurring. Prior restraints on speech and publication are
the most serious and least tolerable infringement on First Amendment rights because they prevent speech before it begins and thus are presumed
to be invalid. The government thus creates a heavy burden of showing justification for the enforcement of such a restraint.
Near v. State of Minnesota Ex Rel. Olson—Court held judicial orders preventing speech constitute prior restraint. Near, was prohibited from
producing any newspaper b/c he published article criticizing local police. State law found unconstitutional that prohibited publishing activity
described as “malicious, scandalous & defamatory.” It has been generally, if not universally, considered that it is the chief purpose of the
guaranty to prevent previous restraints upon publication. Appropriate way of dealing w/ unprotected speech was after fact punishment,
not prior restraint. Fact that miscreant purveyors of scandal may abuse liberty of press doesn’t make any less necessary immunity of press
from previous restraint in dealing w/ official misconduct. Subsequent punishment for such abuses as may exist is appropriate remedy. Statute
placed censorship on newspaper. Unrsbl that person-approving speech is person they may be criticizing. Also, law was vague & overbroad.
New York Times Co. v. United States—Nixon sought to enjoin NYT & WA Post from publishing contents of confidential study about Gov
decision-making w/ regards to Vietnam policy. Court held this unconstitutional b/c Gov. ø meet burden - must be proof that expression of
speech will directly & immediately cause occurrence of event. A possibility is not enough. Here, no proof publication will cause direct &
immediate harm. Also concerned with how quickly court is reviewing these cases just to make sure that rights are not being violated.
Collateral Bar Rule
If you violate a court order that prohibits you from engaging in speech you cannot challenge the law as unconstitutional. The policy behind this is
respect for court orders. This doesn’t stop the individual from applying for a different license and if denied to then challenge that license.
Licensing as Prior Restraint
Where the government requires a license or permit in order for speech to occur, it may be an impermissible restraint. Licensing or permit laws are
allowed only (1) if the government has an important reason for licensing, (2) if there is a clear criterion leaving almost no discretion to the licensing
authority, and (3) there are procedural safeguards.
Lovell v. City of Griffin—Ordinance unconstitutional that prohibited distribution of literature of any kind, in any way, w/out first obtaining
written permission from city manager. Court declared law unconstitutional as impermissible prior restraint. “The ordinance is invalid on its
face. Whatever motives that induced adoption; its character is such that strikes at the very foundation of the freedom of the press by
subjecting it to license & censorship. Struggle for freedom of press was primarily directed against power of licensor. Requiring
licenses was primary purpose for adopting 1st A. Has to be some kind of linkage between the govt.’s interest and the law, not here.
Watchtower Bible & Tract Society of NY, Inc. v. Village of Stratton—Invalidated city ordinance that prohibited door-to-door advocacy w/out
1st registering w/ mayor & receiving permit. 1st A protects such door-to-door advocacy & solicitation. Licensing req would put substantial
burden on speech by preventing anonymous & spontaneous speech, & discourage speakers who don’t wish to seek license. No important
reason for licensing. Homeowners can post, “No Solicitation” signs, to protect privacy of residents, but not persuaded licensing req
decreased likelihood of crime. Seems unlikely that absence of permit would preclude criminals from knocking on doors & engaging in
conversations not covered by ordinance. Not sufficiently narrowly tailored as city made assumption that no homeowner wanted solicitation.
Government’s Important Reason
The government’s reason for licensing must be important.
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Cox v. New Hampshire—Court upheld ordinance that req those wishing to hold parade or demonstration obtain a permit. Ordinance allowed
permit to be denied only if area already was in use by another group. City had important reason for licensing: to receive notice of
demonstrations to be able to “afford opportunity for proper policing” & to preserve order by ensuring only one parade at a particular
place at a specific time. The Court stressed that the “licensing board was not vested with arbitrary power or an unfettered discretion.
Clear Criteria
There must be guidelines when determining whether to grant or deny a license. The approvals cannot be given with unbridled discretion. This
allows the courts to quickly determine if whether the licensor is discriminating against disfavored speech. (How and when)
City of Lakewood v. Plain Dealer Publishing Co.—Court declared unconstitutional city’s ordinance that required permit for placing
newspaper vending machine on public property & gave mayor complete discretion to decide whether to issue a permit. Prior decisions clearly
est. “a licensing statute placing unbridled discretion in hands of gov official or agency constitutes prior restraint & may result in censorship.”
W/out clearly delineated standards, too easy for licensing officials to invent some reason for denying permit, & difficult for courts to review
administrative discretion. If Mayor is 1 in control, then ppl are inhibited from criticizing him b/c not going to put bad stories about Mayor as likely
won’t be published. Too much discretion. Nothing in place helping to make his decision. No express limits on discretion.
Procedural Safeguards
Any system of prior restraints must have (1) prompt decision made by the government as to whether the speech will be allowed; (2) there must be
a full and fair hearing before speech is prevented; and (3) there must be a prompt and final judicial determination of the validity of any preclusion of
speech. Courts look to whether the law is content based or content neutral, although not dispositive, and the kind of activity being regulated in
determining whether strict or less strict safeguards are required.
Freeman v. Maryland—Law made it unlawful to exhibit motion picture w/out first getting a license. Need procedural safeguards to obviate
dangers of censorship. Must be a requirement for a prompt determination by the govt. whether to issue/deny. Also, judicial review is required
Thomas & Windy City v. Chicago Park District—Ordinance req person to obtain permit to “conduct public assembly, parade, picnic, or other
event involving more than 50 individuals,” or engage in any other activity creating amplified sound. THC applied for license & were denied. No
need for strict safeguards as in freeman but req adequate safeguards to give official’s decision guidance & render judicial review.
Diff from freeman b/c it is content neutral & only regulating, time, place, & manner. Not based on content. Purpose is to regulate. Limited space
& preservation of park. Here, 13 reasons why one could be denied & app. had to be processed w/in 28 days w/ reasons for denial.
City of Littleton— Constitutional. City enacted adult business ordinance that required adult bookstore, novelty store, or video store to have
adult business license. Law was specific as to what reasons you would be denied. P attacked the law without applying. The court first notes
that there is a requirement of both judicial review and prompt judicial determination. Here though, there are no special rules for adult business
licenses. The law is only regulating a one-time license requirement for a business and does not based its decision on content.
Types of Speech:
Compelled Speech
The First Amendment free speech clause provides for a right to speak which includes the right to refrain from speaking or disclosing one’s identity.
Compelled speech occurs when the government forces an individual to engage in speech activity. The Court reviews laws compelling speech
under strict scrutiny and are upheld if the law is narrowly tailored to serve a compelling state interest.
 Buckley,
West Virginia State Board of Education v. Barnette— Jehovah’s W refused to pledge allegiance to flag in public school during WWII in
violation of state law req children to salute flag. Unconstitutional. Compulsory flag salute/pledge req affirmation of belief & attitude of
mind. If any fixed star in our constitutional constellation, it’s that no official, high or petty, can prescribe what shall be orthodox in
politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.” State ø
compel 1 to mutter something not on their mind. Court has no compelling gov interest & likely will ever find one to force someone to speak.
McIntryre v. Ohio Elections Commission—Court declared law unconstitutional that prohibited distribution of anonymous campaign literature.
Π violated this law. Court held there’s right not speak of one’s identity. Fails SS. Tradition of authors writing under pseudonyms. Decision in
favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by desire to
preserve as much of one’s privacy as possible. An author’s decision to remain anonymous is aspect of freedom of speech protected by 1st A.”
Anonymity also provides way for speaker “who may be personally unpopular to ensure that readers won’t prejudge her message b/c they don’t
like its proponent. Although interest in fraud, law too overbroad by also covering lawful material. Applies no matter what character or strength
of author is & ø entirely protect against fraudulent transactions.
TYPES OF UNPROTECTED AND LESS PROTECTED SPEECH
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Incitement of Illegal Activities
The court has held that the incitement of illegal activities is generally unprotected speech because the court wants to prevent the encouragement
of people engaging in illegal conduct. The court has tried several approaches when reviewing cases of incitement of illegal activities including the
clear and present danger test, risk formula test, reasonableness test, and the Brandenburg test. Currently the Brandenburg test remains as good
law although rarely applied. A conviction for incitement of illegal activity under Brandenburg is constitutional only if there is: imminent harm; a
likelihood of producing illegal action; and an intent to cause imminent illegal activity.
Schenck v. United States— ∆ printed notices that encouraged those would be drafted to not go and assert their rights during WWI. Leaflet
said, “Do not submit to intimidation,” & “Assert Your Rights,” but did not expressly urge violation of any law; it advocated repealing the
draft law. No evidence that leaflet had any effect in causing a single person to resist the draft. But Court dismissed this as irrelevant. “Of
course doc would not have been sent unless it had been intended to have some effect, & we do not see what effect it could be
expected to have upon persons subject to draft except to influence them to obstruct carrying of it out.” Court upheld ∆’s conviction.
Applied test: If the circumstances are such a nature as to create a clear and present danger that it will bring evils which the Congress has a
right to prevent. Conspiracy alone is sufficient, thus criminal convictions will stand. Congress passed a law to have ppl drafted and this guy was
trying to prevent that especially during wartime. Although in “many places and in ordinary times,” the speech would have been protected by
First A, but the wartime circumstances were crucial.
Frohwerk v. United States—2 individuals who published a German language newspaper were convicted and sentenced to 10 years in prison
b/c of their articles criticizing the war. Court acknowledged there was no evidence that articles had any adverse effect on war effort. But upheld
conviction b/c although unclear if ppl would even hear the speech, there is chance someone will engage in activity so enough during war time
Debs v. United States—Court affirmed conviction of Socialist Party leader who’d been sentenced to jail for 10 years for violating 1917 Act attempt to cause and incite, disloyalty, mutiny, and refusal of duty in the military. Deb’s speech, which primarily was advocacy of socialism,
included some mild criticism of draft. The Court found it irrelevant that this was a small part of the speech. The speech was not protected if “on
purpose of the speech, whether incidental or not, does not matter, was to oppose this war, & if, in all circumstances, that would be
its probable effect.” Court invoked Schenck as resolving the First Amendment issue raised by Debs. There was enough here to get people to
go against the recruiting process, it is not necessary to look at anything else. Socialists do bad things not in the best interest
Abrams v. United States— Printed leaflets encouraging & inciting resistance to US in war & urged curtailment of production of things &
products that were essential to the war. Court affirmed convictions of a group of Russian immigrants who circulated these leaflets, in English &
Yiddish, objecting to America sending troops to Eastern Europe after Russian revolution. Although ∆’s speech had nothing to do with WWI or
the draft, they were convicted & sentenced to 20 years in prison. Court, relying on Schenck and Frohwerk, upheld the conviction. Dissent: No
clear intent they were trying to cripple or hinder the war. Marketplace of ideas and this is a democracy
Imminent Harm
Likelihood of Producing Illegal Action
Intent to cause imminent illegal activity
Brandenburg v. Ohio—Leader of KKK group was convicted under Ohio law at rally for speech advocating duty, necessity, or propriety of
crime, sabotage, violence, or unlawful methods of terrorism as means of teaching or advocating the doctrine of criminal syndicalism. Court said
later decisions “have fashioned principle that constitutional guarantees of free speech & free press don’t permit a state to forbid or proscribe
advocacy of use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is
likely to incite or produce such action.” A conviction for incitement under Brandenburg is constitutional only if there is: imminent harm; a
likelihood of producing illegal action; and an intent to cause imminent illegal activity. Law is invalid by applying Brandenburg test. The statute
here only punishes mere advocacy & forbids assembly of others to advocate. The act used words such as “advocate or teach”. Note: This is
the current law, but court does not necessarily use this test b/c laws are going to be stricken on being overbroad &/or vague
Holder v. Humanitarian Law Project—Valid Federal law prohibits providing “material assistance” to “foreign terrorist org.” Material assistance
is defined to include such activities as “training,” “personnel,” & “expert advice or assistance.” 2 groups of Americans brought lawsuit seeking to
est 1st A protection for assistance for groups that’d been designated by Dept. of State as foreign terrorist orgs. Court ruled this speech could
constitutionally be punished so long as it was done in coordination w/ a foreign terrorist org. Πs could speak out on any topic they wished,
but if speech was done in concert w/ foreign terrorist org, it was not protected by the First A. Under material-support statute, πs may say
anything they wish on any topic & may advocate before UN…Congress has not sought to suppress ideas or opinions in form of ‘pure political
speech.’ Rather Congress prohibited ‘material support,’ which most often ø take form of speech at all, & when it does, statute is carefully drawn
to cover only narrow category of speech under direction of, or in coordination w/ foreign groups that speaker knows to be terrorist org.
Fighting Words
Fighting words are words that by their very utterance may risk provoking immediate breach of peace or illegal force. Under Chaplinsky v. NH, there
are two requirements for speech to constitute fighting words. First, the speech must be directed towards another person and is likely to provoke an
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immediate violent response or inflict immediate emotional harm. Fighting words are unprotected speech under the First Amendment and only need
to withstand rational basis review. The law will be upheld if it is rationally related to a legitimate government interest. In more than half a century,
the court has never upheld a fighting words conviction.
(as long as the law is not overboard or vague, the law will be upheld even it is content based)
 Cohen v. CA, TX v. Johnson,
Chaplinsky v. New Hampshire—Law constitutional. 1st A ø protect against fighting words. NH law can’t offend/annoy/make a noise to
intend to offend someone lawfully in street. Court expressly held “fighting words” are category of speech unprotected by 1 st A. Chaplinsky,
Jehovah’s Witness, was distributing literature for his religion on street corner on Saturday afternoon & gave a speech denouncing other
religions & told police they are “god damn racketeers.” Court upheld Chaplinsky’s conviction for this speech b/c, “allowing broadest
scope to language & purpose of the 14th Amendment, it is well understood that the right of free speech is not absolute at all times &
under all circumstances. Law was narrowly applied to only include face-to-face words. Its purpose was to preserve peace. It is limited to
define and punish specific conduct (insulting fighting words). It wasn’t until he started yelling that they put him under arrest. His speech would
likely provoke the average person (in that set of circumstances) to retaliate and breach the peace.
Gooding v. Wilson—Invalid. Absence of narrowing instructions by state courts led to law prohibiting fighting words being invalidated on
Overbreadth grounds. Law made it crime for “any person to use opprobrious words or abusive language in presence of another w/out
provocation. A fighting words law will be upheld only if it is specific & narrowly tailored to apply just to speech that is not protected by 1 st A.
(Most of these will be invalidated unless clear law is “only prohibiting fighting words”). Case involved individual who was convicted for his
behavior at antiwar demonstration where he said to police officer, “White son of a bitch, I’ll kill you,” & “You son of a bitch, I’ll choke you to
death.” Court found statute impermissibly overbroad & emphasized failure of state courts to narrowly construe law to prohibit only unprotected
fighting words. Definitions of opprobrious & abusive only convey words or disgrace or harsh insulting language, thus law is overbroad.
R.A.V. v. City of St. Paul—Invalid. Law = content based. Π charged w/ violating ordinance that prohibited certain conduct that caused
resentment in others based on race, color, creed, religion, or gender. Court overruled conviction of man who burned cross on black
family’s lawn & held ordinance unconstitutional. Gov ø ban some fighting words but not others, based on words’ precise message.
Gov may not regulate use based on hostility – or favoritism – towards underlying message expressed. Can make laws that prohibit certain
types of speech, but ø discriminate against prohibition it applies to. Law here makes clear distinction on basis of race, color, religion, or gender.
It doesn’t cover all topics (politics, intelligence, stature). Reconcile w/ hate crimes → more about conduct & symbolism that comes w/ that
conduct. Speech alone is not criminalized, it is the effects of the speech. R.A.V. means fighting words law will be upheld only if it doesn’t draw
content-based distinctions among types of speech, such as by prohibiting fighting words based on race, but not based on political affiliation.
Hostile Audience
Hostile audience cases involve speech that provokes a hostile audience reaction. In Feiner v. NY, the court balanced the right to speak with safety
by applying the clear and present danger test. Today, the court follows Justice Black’s dissent in Feiner stating that the First Amendment requires
the police to try to control the audience that is threatening violence and stop the speaker only if crowd control is impossible and a threat to breach
of the peace is imminent.
Feiner v. New York—Constitutional. (good law, just not applied same anymore) Π addressed group gathered on street to invite listeners to
attend a meeting, but π also made derogatory remarks towards some political officials. 1 officer asked π to stop, but he refused several times
& was eventually arrested; but no riot broke out. When as here speaker passes bounds of argument or persuasion & undertakes incitement to
riot, police are powerless to prevent breach of peace. Police were protecting safety of people esp. after he was asked several times to stop.
Obscenity
The Supreme Court has held that obscenity is unprotected speech but the government doesn’t have unlimited power to regulate obscene speech.
The policy behind this is that government has legitimate state interests in prohibiting obscene material because of the quality of life, protecting
minors, and public safety. The court has struggled in defining obscenity but has most recently applied the Miller test. In determining whether
speech is obscene, the basic guidelines for the trier of fact must be: whether “the average person, applying contemporary community standards”
would find the material, taken as a whole, appeals to the prurient interest of sex; whether the work depicts or describes, in a patently offensive
way, sexual conduct specifically defined by the applicable state law, and; whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value. If the court determines that the speech is obscene, the court applies rational basis. The law will be upheld if the law is
reasonably related to a legitimate government interest. If the court determines that the speech is not obscene, is it indecent find another way to
analysis for sexual activity.
Prurient Interest of Sex
The speech, to the average person, applying contemporary community standards would arouse certain sexual desires.
Offensive Sexual Conduct
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The speech must depict or describe sexual conduct in a patently offensive way. The court has held that nudity alone is not enough to make
material legally obscene.
Lacking value
The speech must be one where a reasonable person would find no serious literary, artistic, political, or scientific value in the material from a
national standard.
Roth v. United States— Valid. Obscenity is unprotected. US passed law that prohibited mailing of “obscene, lewd, or lascivious book,
pamphlet, picture, or other publication of indecent character.” “Implicit in history of First A is rejection of obscenity as utterly w/out redeeming
social importance.” We hold that obscenity is not w/in the area of constitutionally protected speech or press.” History says there is little
social importance & “sex & obscenity are not synonymous. Obscene material is material which deals w/sex in a manner appealing to
prurient interest unlike art, literature, or scientific words.” Court defined prurient as “material having a tendency to excite lustful thoughts.”
Paris Adult Theatre I v. Slaton—Valid. 2 allegedly obscene films at two “adult” theatres - Both theatres explicitly warned viewers that the
content of its movies may be offensive & required all viewers to be 21. Court said states have power to make morally neutral judgment that
public exhibition of obscene material, or commerce in such material, has a tendency to injure community as a whole, to endanger public safety,
or to jeopardize States’ ‘right to maintain a decent society.’ “We categorically disapprove the theory that obscene, porno films acquire
constitutional immunity from state regulation simply b/c they are exhibited for consenting adults only. States have legitimate interest
in regulating commerce in obscene material & in regulating exhibition of obscene material in places of accommodation, including so called
“adult theatres” from which minors are excluded. There was state interest of quality of life, community env. & public safety. `Any interest for
obscene material is going to be legitimate (content-based restriction) outer ring are exceptions to content-based restrictions.
Miller v. California— ∆ convicted for mailing ads for “adult” material to non-soliciting recipients. Court reaffirmed that 1st A ø protect obscene
material & formulated 3-part test for obscenity:
 (1) Whether ‘average person, applying contemporary community standards’ would find work, taken as a whole, appeals to prurient
interest; - to applying contemporary community standards. (Prurient means that which excites lustful or lascivious thoughts).
 (2) Whether work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; AND
(we don’t want it to be overly broad, don’t want to prohibit more speech than necessary, must be VERY narrowly tailored &
specific so addressing type of speech gov wants to prohibit so everyone know what is or is not allowed)
 (3) Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.” (Determined by a national
standard as decided in Pope v. Illinois)
State has legitimate state interest in prohibiting dissemination or exhibition of obscene material when it carries significant danger of getting into
hands of minors or unwilling recipients. Law must be carefully limited and specifically defined. To give fair notice to a dealer of such materials.
Child Pornography
Child pornography using actual children is not protected speech regardless of whether the material is deemed obscene or not under the Miller test.
The court has held there is always going to be a compelling interest in protecting minors.
New York v. Ferber— Valid. NY prohibits person from knowingly promoting sexual performances by kids under 16. ∆ convicted under law for
selling 2 films showing young boys masturbating, & Court upheld conviction by using SS for child pornography. It is evident beyond need
for elaboration that a State’s interest in ‘safeguarding physical & psychological well-being of a minor is ‘compelling.’ Child porn is
closely related to child abuse b/c children are harmed by permanent record of their involvement in porn & children are exploited in making
porn. Must also punish those who distribute child porn to create a disincentive. Potential harms are so great so we are not going to allow it at
all. Test for child porn is separate from obscenity standard enunciated in Miller. State’s interest is physical and psychological well being of the
minor is compelling. Depicting sexual activity by children is related to child abuse. Advertising and selling it for economic reasons is illegal.
Value is modest. This decision is not incompatible with other decisions. Evil v. Express interests
Ashcroft v. Free Speech Coalition— Invalid. Child must actually be used in the porn. Court declared unconstitutional Child Porn Act that
prohibits child porn whether based on actual pictures of kids or computer-generated images. Act thus banned material that included adults who
are childlike in appearance, as well as computer-generated images. Material prohibited by Act did “not involve, or harm, any children.”
Gov. interest in banning child porn is in safeguarding children. Many works dealing w/teenage sexuality might be found to violate the law.
There was sufficient evidence to support gov. contention that enforcement of child porn laws would be impeded w/out ban of sort in the Act.
Gov ø ban child porn based on its condemnation of material. Rather, gov interest is limited to protecting kids from being used in making of the
material. Law depends on how image appears to be viewed rather than how it’s produced. Rejected that pedophiles will use films immorally as
merely speculative. Law is overbroad b/c it protects a substantial amount of protected speech. Material must use kids in production
Protect but Low-Value Speech
The Supreme Court has indicated that there is a category of sexual speech that does not meet the test for obscenity and thus is protected by the
First Amendment, but is deemed to be low value speech and thus the government has latitude to regulate such expression.
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Zoning Ordinances  The court has upheld the ability of local governments to use zoning ordinances to regulate the location of adult bookstores
and movie theatres and thus have applied rational basis.
Young v. American Mini Theaters, Inc.— Valid. Applied RBT. The State may legitimately use the content of these materials as the
basis for placing them in a different classification from other motion pictures. Michigan adopted an ordinance that restricted location of
adult movie theaters. Adult movie houses were not to be located w/in 1,000 feet of any 2 other “regulated uses” & was to be located more than
500 feet from a residential area. The sexually explicit material should be regarded as “low value” speech & thus is more susceptible to gov
regulation. Even though First A protects communication in this area from total suppression, we hold State may legitimately use content of these
materials as basis for placing them in a different classification from other motion pictures. State’s interest in preserving quality of urban life is
adequate to suppose such classification. Law is not vague & does place a restraint on protected speech. Speech is lesser value than political.
Nude dancing  The Supreme Court has allowed the government to prohibit nude dancing by considering secondary effects by taking into
considerations community standards and morals.
Barnes v. Glen Theatre—Valid. Law prohibited public nudity and required female dancers to at a minimum wear pasties and a G string when
they dance. The kind of nude dancing to be performed here is expressive conduct w/in outer perimeters of First Amend, though we view it even
marginally so. Plurality saw nude dancing as conduct that communicates and applied test for regulating symbolic speech. Upheld prohibition
of nude dancing b/c served goal of “protecting societal order and morality.” Makes dance slightly less graphic. (Really Secondary Effects)
City of Erie v. Pap’s A.M.— Valid b/c content neutral under secondary effects test. Court reaffirmed Barnes though under different
reasoning. City adopted ordinance prohibiting public nudity, w/clear objective of shutting down Kandyland, a nude dancing club. Court upheld
ordinance. City was justified in prohibiting nude dancing so as to stop undesirable secondary effects, such as crime, associated w/ activity –
undeniably imp. City Council members could rely on experience of other cities and their own observations to rsbly conclude that nude dancing
increases crime. There are minimal effects on expression by dancers by having restriction. Interest in combating 2ndary effects is important.
Controlling Obscenity and Child Porn
The Supreme Court has made it clear that the government can prohibit the sale, distribution, and exhibition of obscene materials even to willing
recipients. The court has also held that the government cannot prohibit or punish the private possession of obscene material, although it may
outlaw the private possession of child porn.
Stanley v. Georgia— Invalid. During execution of search warrant, police found 3 films in which police concluded they were obscene & seized
them. ∆ was charged w/ possession of obscene matter & placed under arrest. Mere private possession of obscene matter cannot
constitutionally be made a crime. A person in his or her home has the right to choose what to read or watch. An individual has a
fundamental right to be free, except in very limited circumstances, from unwanted government intrusions into one’s privacy. If 1st A means
anything, it means a state has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.
Osborne v. Ohio— Valid. ∆ convicted of possession of nude pics of young boy. Court held gov may prohibit & punish private possession of
child porn. Gov has important interest in attempting to dry up market for child porn so as to protect children & may therefore punish even
private possession. Gov. interests in outlawing private possession of child porn “far exceeds” justifications for prohibiting private possession
that were raised in Stanley. Law was designed “to protect victims of child porn” by “hoping to destroy a market for exploitative use of
children.” The values of permitting child porn have been characterized as exceedingly modest, if not diminished. That’s why diff from Stanley.
Profanity and Indecent Speech
The Supreme Court has held that profanity and indecent speech is not automatically obscene or considered fighting words. Cohen v. US held that
the government may not prohibit or punish speech simply because others might find it offensive. The court has held that the First Amendment
generally protects such language, but there are exceptions. The court has expressly adopted a medium-by-medium approach considering the
speech depending on what media the speech is broadcasted through.
Cohen v. California— Invalid. Cohen was convicted of disturbing the peace for being in a courtroom with jacket that said, “Fuck the Draft.”
Court overturned conviction. Principle contended for by State seems inherently boundless. State has no right to cleanse public debate to point
where it’s grammatically palatable to most squeamish among us. Compelling gov interest. Words weren’t obscene b/c ø involve erotic
significance & not fighting words b/c not directed at anyone nor cause violence. Ppl could avert their eyes – 1 man’s vulgarity is another’s lyric.
Broadcast Media
The government is permitted to regulate indecent speech over the television radio by taking into consideration the content of the speech delivered
coupled with the time of day the speech is delivered.
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FCC v. Pacifica Foundation— Valid. When Commission finds indecent speech is being spoken at wrong time of day, given content of
program, FCC can regulate even if speech is not obscene. Radio station in NY played comedian’s monologue on “7 dirty words,” but
advised listeners of content immediately before broadcast. Court recognized gov could not prohibit all use of these words, but it could ban
them from being aired over broadcast media. Broadcast media is uniquely pervasive & intrusive into home. Warnings were thus insufficient b/c
ppl might tune in during middle of broadcast; regulation allowed b/c “broadcasting is uniquely accessible to children, even those too young to
read. Although Cohen’s written message might have been incomprehensible to a first grader, Pacifica’s broadcast could have enlarged a
child’s vocabulary in an instant. Broadcasting area, confronts citizen, not only in public, but also in privacy of home, where individual’s right to
be left alone is clear. Prior warnings ø completely protect listener & broadcasting is uniquely accessible to children.
Telephones
The government does not have as much leeway in regulating telephones because they are a different medium as broadcast media. Telephone
communications cannot intrude on the privacy of a home as does the public radio because there is no captive audience and thus strict scrutiny
applies. The law must be narrowly tailored to serve a compelling governmental interest.
Sable Communications v. FCC— Invalid. Applied SS. Π started porn phone line in LA area. Phone co. charged users special fee for dialing
these #’s. Court declared unconstitutional federal statute, designed to eliminate “dial-a-porn” industry; law prohibited obscene or indecent
phone conversations. Court drew distinction btw “obscene” & “indecent.” While law was constitutional in prohibiting obscene speech, it was
unconstitutional in prohibiting indecent speech. Gov couldn’t ban speech simply b/c it was “indecent,” & there is no captive audience’ problem
here; callers will generally not be unwilling listeners. Also, Congress’s goal of protecting kids could be achieved through means less restrictive
of speech. Law was not narrowly tailored in that it acted as an absolute prohibition even on adults rather than regulating time. It noted
difference in mediums & said communication is not likely to reach children b/c it requires affirmative steps.
The Internet
Similar to the standards in telephone lines, the Internet is not as pervasive as the radio in Pacifica. Further the Internet communications do not
appear unsolicited; warnings are given before encountering indecent material and thus Internet communication comes with a low risk of
encountering such material.
Reno v. American Civil Liberties Union— Invalid. Court declared prohibition of indecent material over Internet unconstitutional. CDA
contained 2 provisions in which 1st prohibited knowing transmission of obscene or indecent messages to any recipient under 18. 2nd
prohibited knowing, sending, or displaying of patently offensive messages in manner available to person under 18 years old. Distinguished
Pacifica, noting FCC regulation of TV & radio was applied to time when kids might be listening, whereas this Act applies to all hours. Also,
Pacifica involved sanctions by regulatory agency whereas this Act imposed criminal penalties on violators. Typically we don’t like to penalize
speech, we can prohibit it, but do not prefer criminal penalties. Gov had compelling interest in protecting kids from exposure to sexual material,
but gov ø restrict speech available to adults so as to safeguard kids. Ultimately, Court said it’s striking down law b/c of its breadth. Law is
content based & was denied b/c protected kids from primary affects & not secondary effects. Had nothing to do w/ time & req of credit cards
likely hindered adults from being able to access lawful material making law broad. It was vague b/c not clear how 2 laws related to each other.
A new exception for violent speech
United States v. Stevens—Court declared unconstitutional law that prohibited creation, sale, or possession of depictions of animal cruelty.
Court refused to recognize depictions of animal cruelty as new category of unprotected speech analogous to child porn, in which gov could
punish creation, distribution, or even possession of expression. Additionally, Court found law unconstitutionally overbroad. Statute “creates
criminal prohibition of alarming breadth. The text of statute’s ban on ‘depiction of animal cruelty’ nowhere requires the depicted
conduct be cruel.” B/c statute applies to any conduct that is illegal, hunting videos would fit w/in prohibition since hunting is illegal in some
states – making statute impermissibly overbroad in its sweep.
Brown v. Entertainment Merchants Association— π’s, associations of comp. that create, publish, distribute, sell &/or rent video games
brought declaratory judgment action against CA seeking to invalidate newly- enacted law that imposed restrictions & labeling req on sale or
rental of "violent video games" to minors. Does 1st A bar a state from restricting sale of violent video games to minors? Yes. Like protected
books, plays, & movies that preceded them, video games communicate ideas—& even social messages—through many familiar literary
devices (such as characters, dialogue, plot, & music) & through features distinctive to medium (such as player’s interaction w/ virtual world).
That suffices to confer 1st A protection." Used SS. Medium, (interactive), does not make diff. Both over & underinclusive. Overbreadth in
achieving 1 goal is not cured by underbreadth in achieving the other. Legislation such as this, which is neither fish nor fowl, cannot survive SS.
Commercial Speech
Commercial speech, like other forms of speech, is protected speech under the First Amendment free speech clause, while some form of
regulations are permissible to prevent misleading, false, or illegal statements. To determine if a law regulating commercial speech is constitutional,
courts will first look at whether the speech is commercial speech. If the speech being regulating is in fact commercial speech, the court will apply
the four-part Central Hudson test to determine the regulation’s constitutionality.
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Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.— Invalid. Court declared unconstitutional Virginia law that
prohibited pharmacists from advertising prices of prescription drugs. 1st A protects speech that “does no more than propose a commercial
transaction.” Economic interests of speaker should not matter in deciding whether speech is protected by 1 st A. (example – speech in labor
disputes is protected even though there’s financial interest of the speakers). Nor should it matter that speech is factual rather than opinions or
ideas. Several interests involved such as interest in free flow of commercial info & interest in fostering intelligent, well informed decisions. State
claims an interest in professionalism, but this is covered by other state regulations.
Is it commercial speech
Commercial speech has been difficult to define but the court looks to three factors: whether the speech is meant to be an ad; whether the ad
references a particular product; and whether there was any economic motivation. A combination of these strongly supports a finding for
commercial speech. Also, the fact that commercial speech is intertwined with public issues does not take it out of the realm of protection.
Bolger v. Youngs Drug Products Corp.— Adopted 3 factors. Strong finding for comm. speech. Law prohibits mailing of unsolicited ads
for contraceptives. Π did so to members of public about his product related to contraceptives. Court held brochures were form of commercial
speech. Commercial speech has 3 characteristics: (1) It’s an ad of some form, (2) it refers to specific product, & (3) speaker has economic
motivation for speech. Regardless of fact that mailings contained discussions of imp. public issues, there is strong support for comm. speech.
Constitutionality of Law
Since it has been determined that the speech being regulated is commercial speech, the court applies four elements to determine the regulation’s
constitutionality: (1) whether the speech involves illegal or false advertising; (2) whether the government has a substantial government interest; (3)
whether the law advances the government interest; and (4) whether the regulation is no more extensive than necessary.
Central Hudson Gas & Electric Corp. v. Public Service Commission of NY— Invalid. Failed on the 4th element – Burden on gov. Court
articulated test for when gov may regulate commercial speech. Due to electrical shortage in NY, ban placed on ads use of electricity. Ban
continued even after shortage cleared up. By applying four-part analysis, Court found utilities ads were truthful & not deceptive & gov had
substantial interest in discouraging energy consumption. Prohibiting ads by utility directly advanced state’s interest in energy conservation.
There is immediate connection btw ads & demand for electricity. But, ban unconstitutional b/c state could achieve goal of encouraging
energy conservation through means less restrictive of speech & state failed to meet burden of demonstrating “interest in conservation cannot
be protected adequately by more limited regulation of commercial expression.” 1. No claim that expression at issue is either inaccurate or
relates to unlawful activity; 2. State’s interest in energy conservation is that any increase in demand for electricity means greater consumption
of electricity; 3. Interest too substantial & law directly advances that state interest; 4. Problem w/ law is that it reaches all promotional ads,
regardless of impact of touted service on overall energy use. Thus, suppresses info on devices or services that would not increase total
energy use
Illegal/False advertising
If the speech advertises illegal activities or constitutes false or deceptive advertising it is unprotected by the First and thus can be regulated.
Pittsburg Press case  Gender discrimination in a help wanted ad was illegal activity.
Government Interest
The government’s restriction must be justified by a substantial government interest.
Direct Advancing
The law must reasonably and directly advance the government’s interest. In order to directly advance the government’s interest there must be an
immediate connection between the regulation and the governmental interest.
Linmark Associates, Inc. v. Township of Willingboro—Court declared unconstitutional ordinance that outlawed display of “For Sale” or
“Sold” signs. City prohibited such signs “to prevent flight of white home-owners from racially integrated community.” City’s concern was that
pervasive presence of “for sale” signs would encourage panic selling & white flight from city. Ordinance serves “vital goal in promoting stable,
racially integrated housing. But, declared ordinance unconstitutional b/c “1st A disables State from achieving its goal by restricting free
flow of truthful info.” Court said primary infirmity of law was that gov suppressed truthful info based on belief that ppl would be better off w/
less speech & knowledge – unacceptable under First A. Court said state’s interest in promoting racial integration is valid but law not directly
advancing that interest b/c no evidence that signs were having this actual impact. Info itself is not harmful & there are other alternatives.
No More Extensive than Necessary
The regulation of speech must be no more extensive than necessary to achieve the government’s interest. Most recently the court revisited this
issue a few times as to whether the government must be required to show a strict narrow tailoring than simply requiring least restrictive
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alternatives. Currently, the court follows the original standard in Hudson in that the regulation need not be the best fit, as long as it is reasonably no
more extensive.
Rubin v. Coors Brewing Co.—Court declared unconstitutional federal law prohibiting beer labels from stating alcohol content on product.
Court accepted gov had substantial interest in preventing strength wars among malt beverage products. Gov has significant interest in
protecting health & safety, & welfare of citizens by preventing brewers from competing on basis of alcohol strength, which could lead to greater
alcoholism & its attendant social costs. But, invalid b/c gov could achieve this goal in less intrusive manner to Brewing co. 1 st A rights by
directly limiting alcohol content of beers, prohibiting marketing efforts emphasizing high alcohol strength (which is apparently policy in some
other Western nations), or limiting labeling ban only to malt liquors, which is segment of market allegedly threatened.
44 Liquormart, Inc. v. Rhode Island—Rhode Island banned advertising of liquor prices except w/in liquor stores. Court declared this
unconstitutional. “Law is blanket prohibition against truthful, non-misleading speech about lawful product. There was no evidence law would
advance interest of promoting temperance. There are other alternatives. It would be conjecture to speculate that prohibiting price ads would
decrease alcohol abuse. State also ø satisfy req. that its restriction on speech be no more extensive than necessary. It is perfectly
obvious that many alternative forms of regulation that did not restrict speech would be more likely to achieve state’s goal of
promoting temperance. Court rejected argument states’ power to regulate sale of alcoholic beverages under 21st A as states must use their
power under 21st A in manner consistent w/other constitutional provisions, such as 1st A.
Conduct that Communicates Speech
People often communicate through symbols other than words. Conduct of all sorts can convey a message. Thus, the Supreme Court has long
protected conduct that communicates under the First Amendment. In determining whether conduct is communicative the court has emphasized
two factors: intent to convey a particular message; and a great likelihood the message would be understood by those who viewed it. Once it has
been determined that the conduct is communicative, the court will determine whether the regulation is content based or content neutral. If the law
is regulating conduct based on content, the court will apply strict scrutiny. If the law is regulating conduct unrelated to speech the court will apply
the O’Brian test to determine if the government regulation is sufficiently justified.
Is the Conduct Communicative?
It must first be determined if the conduct is communicative by looking to two factors: whether there was intent to convey a particularized message;
& whether in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.
Spence v. WA—Guy taped peace sign on American flag after killing of students at Kent State & was convicted of state law prohibiting flag
desecration. Held: Communicative – act was speech protected by First A. It was pointed expression of anguish by ∆ about then-current
domestic & foreign affairs of his gov. (Applied Test Above).
Is the Regulation Constitutional
Strict Scrutiny
In order for the law to be constitutional, the law must serve a compelling governmental purpose and must be narrowly tailored to achieve that
interest.
Texas v. Johnson—Court declared TX law unconstitutional that prohibited any person to “deface, damage or otherwise physically mistreat”
flag in way actor knows “will seriously offend 1 or more persons likely to observe or discover his action.” ∆ convicted of violating law &
sentenced to year in prison for burning flag as part of protest, even though no violence occurred at event. Unlike O’Brien, gov interest was
NOT unrelated to suppression of message; to contrary, law’s purpose was to keep flag from being used to communicate protest or dissent. TX
law ø prevent all flag destruction, but rather applies only when there would be offense to others. “If there is a bedrock principle underlying
1st A, it is that gov may not prohibit expression of an idea simply b/c it finds idea itself offensive or disagreeable.” State’s interest in
preserving flag as symbol of nationhood & national unity was related to suppression of speech b/c it punished for message flag burning
communicated (content based restriction). Thus, SS applies for which the law fails.
O’Brien Test
In order for the law to be constitutional, the law must further an important or substantial government interest; the governmental interest must be
unrelated to the suppression of free expression; and the incidental restriction on alleged First Amendment freedoms must be no greater than is
essential to the furtherance of that interest.
(As long as the government interest is substantial and the regulation is unrelated to the speech the government is going to win)
United States v. O’Brien— ∆ convicted under Military Training & Service Act that made it an offense to “alter, knowingly destroy, knowingly
mutilate” Selective Service registration certification. ∆ knowingly burned draft card in front of local courthouse. “When ‘speech’ & ‘nonspeech’ elements are combined in same course of conduct, sufficiently imp governmental interest in regulating non-speech element
can justify incidental limits on 1st A freedoms.” Court then articulated test for evaluating conduct that communicates under First A. (see
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above) Court noted several purposes for card: serving as proof, simplifying system for benefit of all, serving as reminders to notify board of any
changes, & to protect against alterations, forgery, etc. All of these purposes would be void if one were able to destroy the card. Clear purpose
of rule was to stop draft card burning as form of political protest. Yet Court said this motive was irrelevant. (categorically rejects motive analysis
in this context). Under O’Brien test, gov can regulate conduct that communicates only if it has important purpose unrelated to suppression of
message. Despite O’Brien’s statement that motive is irrelevant, it is quite important under the test it formulated.
Spending Money as Political Speech
In Buckley v. Valeo, the court found that political campaign contributions are political speech. This means because political speech is the highest
valued speech, the government regulation must meet strict scrutiny for its law to be constitutional. The law must be narrowly tailored to serve a
compelling governmental interest.
(Examples  Individual contribution limits are constitutional. However, the limitations on campaign expenditures, on independent expenditures
and on expenditures by a candidate from his own personal funds are unconstitutional.)
Buckley v. Valeo—Provisions of constitutionality of FECA were challenged as unconstitutional as they were limiting amount of $ that could be
contributed in political campaigns, amount of $ that could be spent per candidate, & amount of $ candidate could spend from personal or family
resources. Act’s contribution & expenditure limitations operate in area of most fundamental 1 st A activities. Discussion of public issues &
debate on qualifications of candidates are integral to operation of system of gov est by our Constitution. Court refused to apply O’Brien as
expenditure of money simply ø be equated w/such conduct as destruction of draft card. Court Held contribution limits are valid. Everything
else no. Limiting contributions to political campaigns is constitutional as it serves interest of preventing corruptions. Putting cap is not going
to prohibit speech. Expenditure ceilings impose direct & substantial restraints on quality of political speech. It’s clear primary effect of these
expenditure limitations is to restrict quantity of speech. Court is concerned with skewing – allowing 1 big check to take up most contributions.
Corporate Spending
In First National Bank of Boston v. Bellotti the Supreme Court recognized that corporations are people under the law and have First Amendment
rights. They further stated that the First Amendment protects speech, not the speaker, and as such political speech does not lose its protection
because it is said by a corporation. For the law to survive, it must survive strict scrutiny in which the law must be narrowly tailored to serve a
compelling governmental interest.
(disclosure requirements don’t burden speech  intermediate scrutiny)
(remember interest is usually going to be corruption)
First National Bank of Boston v. Bellotti—Court declared unconstitutional law that prohibited banks or businesses from making contributions
or expenditures in connection w/ballot initiatives & referenda. Law had exception if initiative materially affected property, business, or assets of
corp. Value of speech is in informing audience. Any restriction on speech, regardless of source, undermines 1 st A. If speakers here were not
corp., no one would suggest that State could silence their proposed speech. It is type of speech indispensible to decision making in
democracy, & no less true b/c speech comes from a corp. rather than individual. Can’t pick and choose about speakers and/or what kind
of speech they can engage. (limiting the quantity of speech) The interest the law protects corp/ shareholders by preventing the use of
corporate resources in furtherance of views which shareholders may disagree is both underinclusive and overinclusive.
Citizens United v. FEC— Citizens created documentary. Law prohibited corp. & unions from using general treasury funds to make direct
contributions to candidates or independent expenditures including electioneering communication referring to media broadcasting w/in a specific
time of election. Law allowed for separate segregated fund. Law also req any electioneering communication provide disclaimer claiming who
was responsible for content. Court held restrictions on ind. expenditures from corporate treasuries violated 1 st A. Gov may regulate corp
political speech through disclaimer/disclosure req as less restrictive alternative to more comprehensive regulations of speech, but ø suppress
speech altogether based on speaker’s corporate identity. Law acted as outright ban on speech. Interest of anti-distortion would end up singling
out corp. during 60-day period b/c of wealth & prohibit small & nonprofit from speaking. Interest in corruption is moot just b/c speakers have
influence & interest in shareholder’s interests is overinclusive. As to disclaimer, ø burden speech. Ind are not prohibited from contributing to
campaigns 30-60 days before election, so ø prohibit corp. from doing that. Can’t prevent speech activity b/c someone may abuse it.
McCutcheon v. Fed. Election Comm’n— Court narrowly defined what corruption is – concerned with quid pro quo. Limited understanding of
corruption to quid pro quo. Want to limit aggregate amount. Π was prevented from contributing to 12 additional candidates b/c of
aggregate limit on contributions to candidates. He wishes to make similar contributions in future w/out being prevented. Aggregate
limits are invalid b/c they restrict participation in democratic system. Court did not buy gov argument that aggregate limits also serve
permissible objective of combatting corruption. Why should my speech, so long as not expecting something in return, be limited?
Place Available for Speech
The Supreme Court has held that individuals have a right to use some government property, under circumstances, for speech purposes. Once the
right to use government property for speech is recognized, the issue inevitably arises as to what publicly owned property needs to be available for
speech and under what circumstances. The court has traditionally dealt with this issue by identifying three types of government property: public
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forums; limited public forums and non-public forums. However, Pleasant Grove v. Summon and referenced in CLS v. Martinez’s footnote 11, the
court discussed three types of government property: traditional public forums, limited/non public forums; and designated public forums. The
constitutionality of a regulation of speech depends on the place and nature of the government’s action.
Hague v. Committee For Industrial Org.— Invalid. Involved attempt by mayor to prevent union, Council of Industrial Orgs, to organize in that
city. Ordinance was enacted that prohibited all public meetings in streets & other public places w/out permit from city. Court found there was
right to use gov property for speech purposes. Π’s were protecting functions of labor & organization and city interfered with such organization
by force for no reason. City prevented π’s from distributing leaflets when they were doing so peaceably & lawfully. Can’t prohibit particular
group or person from committing such activities on public streets. Can’t use regulation to prevent people from engaging in activities you don’t
like. Court concerned w/arbitrary suppression. Shift from the court.
Schneider v. New Jersey—Invalid. Court declared unconstitutional city’s ordinance that prohibited distribution of leaflets on public property.
City maintained it could do so in order to minimize litter & maintain appearance of streets. Court rejected this argument. Purpose to keep
streets clean & of good appearance is insufficient to justify ordinance, which prohibits person rightfully on public street from handing literature
to 1 willing to receive it. Any burden imposed upon city authorities in cleaning & caring for streets as indirect consequence of such distribution
results from constitutional protection of freedom of speech & press. Case est. that city must allow speech on its property even if doing so will
impose costs on city & Court expressly rejected city’s contention it could restrict distribution of leaflets b/c other places were available for
speech. Someone offered it, they took it, cannot prohibit it. But if someone was violent, that’s a different story. But cannot penalize
person for handing it out if another person throws it on the street. This is a big thing Jehovah’s witnesses purposes
Perry Education Assn. v. Perry Local Educator’s Assn.— Agreement limited access to district mailboxes & competitor was denied access
to mailboxes even though it was available to community groups, teachers, & administration. Court upheld exclusion & in doing so identified
types of gov property. In non-public forums, state may reserve forum for intended purposes, communicative or otherwise, as long as regulation
on speech is reasonable & not an effort to suppress expression merely b/c public official opposition. Court said this was nonpublic forum b/c it
is not held open to public in general & is for internal comm. of school related matters. Thus, standard is lower, no guarantee to use forum.
Traditional Public Forums
A public forum is a governmental property that the government is constitutionally obligated to make available for speech and is traditionally open
for assembly and debate. The court first determines if the regulation is content based or content neutral. If the regulation is content based, the
court will apply strict scrutiny. If the law is content neutral then the law must be a reasonable time, place, and manner restriction.
Is the law content based or content neutral
A law is content based if it is related to the suppression of speech. A law is content neutral if the suppression is unrelated to speech.
Do analysis. If the law is content based does it survive strict scrutiny.
Strict Scrutiny
To survive strict scrutiny a law must be narrowly tailored to serve a compelling governmental interest. If the law is content neutral is it a valid time
place manner restriction.
Time, Place, and Manner Restriction
For the law to be a reasonable time, place, and manner restriction the law must be content neutral and the government must have an important or
substantial government interest that is narrowly tailored. The government need not use least restrictive means. Finally, the government must leave
open ample alternative channels for speech.
Hill v. Colorado—Court upheld state law that restricted speech activities w/in 100 ft of entrance to any health care facility. Law makes it
unlawful w/in regulated areas for any person to “knowingly approach” w/in 8ft of another person, w/out that person’s consent, “for purpose of
passing leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling w/such other person.” Law applied no
matter what topic or viewpoint of speech. The law was content-neutral for 3 reasons:
1) It is not a ‘regulation of speech.’ Rather, it is a regulation of places where some speech may occur.
2) It was not adopted ‘b/c of disagreement w/message it conveys.’ Statute’s restrictions apply equally to all demonstrators, regardless of
viewpoint, & statutory language makes no reference to content of speech.
3) State’s interest in protecting access & privacy, & providing police w/clear guidelines, are unrelated to content of demonstrator’s
speech. Gov regulation of expressive activity is ‘content neutral’ if it is justified w/out reference to content of regulated speech.
Court stressed this was a time, place & manner restriction on speech that served important interest of protecting patients & health
care workers. Gov has interest in impeding health care facilities. It is content neutral b/c no regulation on speech & law applies to everyone.
TPM is reasonable b/c separation of 8ft has no adverse impact since law does not regulate size of place cards or noise.
Content Neutrality
As discussed above, it has already been determined that it is content neutral.
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Police Dept. of City of Chicago v. Mosley— Invalid. M is a postal worker who picketed a high school. During school hours he picketed by
himself with a sign accusing school of discrimination & using racial quotas. Protest was always peaceful, orderly, & quiet. City passed
ordinance prohibiting picketing next to a school unless it was for peaceable labor picketing. Law was unconstitutional b/c it was an
impermissible subject matter restriction on speech. It describes permissible picketing in terms of its subject matter. Peaceful picketing on
subject of school’s labor-management dispute is permitted, but all other peaceful picketing is prohibited. Operative distinction is message on
picket sign. 1st A means that gov has no power to restrict expression b/c of its message, ideas, subject matter, or content. The claim was EP
claim b/c law only allowed picketing of labor laws. Thus, SS b/c of First Amend issue. It reasoned that selective exclusions by govt. from public
forum may not be based on content alone, & here it has nothing to do with time, place, and manner.
Substantial/Important Interest
The government must prove that there is an important or substantial governmental interest.
Narrowly Tailored
The law must be narrowly tailored, yet the government need not use the lease restrictive means so long as the regulation promotes a substantial
government interest that would be achieved less effectively absent legislation.
Ward v. Rock Against Racism— Central Park contains amphitheater next to residential areas & Court upheld city-imposed restriction on
performances to use specified amplification equipment & staff provided by city to limit noise disturbance. Concert producers & promoters
argued city could achieve its goal of noise reduction through means less restrictive of speech; they could impose decibel levels. But, Court said
“regulation of TPC of protected speech must be narrowly tailored to serve gov’s legitimate, content-neutral interests but it need not
be least restrictive or least intrusive means of doing so.” Req of narrow tailoring is satisfied so long as regulation promotes substantial
governmental interest that would be achieved less effectively absent regulation. Thus, so long as means chosen are not substantially broader
than necessary to achieve gov’s interest, regulation will not be invalid simply b/c court concludes gov’s interest could be adequately served by
some less-speech-restrictive alternative. State has substantial interest in protecting citizens from unwelcomed noise & guidelines have nothing
to do with content. Interest in limiting noise is served directly & leaves room for alternative channels of communication b/c it does not attempt to
ban any manner or type of expression.
Alternative Channels
The government must leave open ample alternative channels for communication of the information.
 Nationalist Movement
(Licensing if applicable but likely mentioned above)
Designated Public Forums
Government entities create designated public forums when government property has not traditionally been regarded as a public forum is
intentionally opened up for that purpose. Once the government chooses to open such a forum, the government must comply with all of the rules of
public forums including content based discrimination.
Good News Club v. Milford Central School—Court held unconstitutional elementary school that excluded group from using school property
after school for religious activities including prayer & Bible study. School created limited public forum by opening its facilities & can restrict
some speech but can’t be discriminatory. Allowing group to use property didn’t violate Est Clause. Exclusion of religious activities was
“viewpoint” discrimination that was impermissible in limited public forum.
Limited Public Forum/Non-Public Forum
Government entities establish limited public forums/non-public forums by opening property limited to use by certain groups or dedicated solely to
the discussion of certain subjects. Courts will consider the history, use, location of the speech, and whether the speech is commercial speech
when determining whether a limited/non-public forum has been established. In such a forum, a government entity may impose restrictions on
speech that are reasonable and viewpoint-neutral.
Adderley v. Florida—Court held gov could (valid) prohibit speech in areas outside prisons & jails. Π’s demonstrated against arrests of
another group of protesting students against practices of racial segregation of jail. After refusing to leave, πs were arrested & later convicted of
trespass. State, no less than private owner of property, has power to preserve property under its control for use to which it is lawfully
dedicated. Restrictions are okay as long as no discriminatory purpose. If outside of jail perimeters, it would’ve been okay. No evidence that on
any other occasion, such protest has been permitted. (Looked at history/use)
Greer v. Spock—Politician wanted to campaign at military reservation but was denied. Military bases, even parts of bases usually open to
public, are nonpublic forum. Although civilians were allowed free access to non-restricted areas of Fort Dix, a regulation prohibited
“demonstrations, picketing, sit-ins, protest marches, & political speeches.” Court upheld regulation & said, “it is business of military like
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Fort Dix to train soldiers, not provide public forum.” Gov could exclude such speech to insulate military from political activities. Other activities
going on, but about business mgmt., drug abuse, & clergyman, all providing service. Politician campaigning more votes not related to service.
Lehman v. City of Shaker Heights—City sold ad space on buses, but refused to accept ads on behalf of candidate for public office. Court
upheld limit as constitutional in that city was NOT req by 1st A to accept paid political advertising for public office. Court stressed, “gov was
engaged in commercial venture” & restriction was justified b/c there could be lurking doubts about favoritism. City transit system is
permitted to choose what type of ad will be displayed as long as regulation is not arbitrary, capricious, or invidious. Cars were more like a
commercial business & not public forum. Like newspapers, they don’t have to accept every type of speech. Court deferred to state interests of
preventing abuse, appearance of favoritism, & imposing captive audience – thus no violation of First Amendment.
United States v. Kokinda—Kokinda volunteer for National Democratic Policy Committee. She set up table on sidewalk outside post office
where she intended to sell books & solicit contributions for organization. Court upheld restriction on solicitations on post office properties. A
postal sidewalk ø have characteristics of public sidewalks traditionally open to expressive activity; postal sidewalk constructed solely to provide
for passage of individual engaged in postal business. Others used postal property for speaking, wasn’t enough to transform it into designated
public forum b/c didn’t add up to dedication of postal property to speech activities. Sidewalk only leads to passage of postal service. Usually,
only communication in such places is posting of public notices on designated bulletin boards & not usually opens to sidewalks for any first
amendment purposes & has been regulated as such for decades. (Looked at location/history)
Int’l Society for Krishna Consciousness, Inc. v. Lee—Court ruled airports are nonpublic forums, even though public places. Religious group
distributed literature & solicited funds in NY airport. Airport restricts groups that try this on sidewalk areas of airport. Terminals’ are not public
forum & law satisfies rsblness standard. Tradition of airport activity ø demonstrate airports have historically been made available for speech
activity. Airports primary purpose is promoting free exchange of ideas, but rather to efficient flow of travel. No intention to dedicate speech.
State interest in those traveling & on tight schedules. Prohibition of distribution of literature in airports unconstitutional as ban on
leafleting ø rsbl & thus impermissible even though airport was nonpublic forum. Look at tradition & purpose – Rsbl to stop solicitations
Speech in Authorities Environments
SCHOOLS
The Supreme Court has consistently held that teacher or students in school do not lose their constitutional rights at the school house gate which
means they have First Amendment protection. In Tinker v. Des Moines, the court held that a school could prohibit speech only if engaging in the
forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.
However, since Tinker the court has looked at a variety of cases where the court has upheld limitations on speech by also considering whether the
speech is or will occur at a school sponsored event and whether the limitation is reasonably related to a legitimate pedagogical interest. If the
government can show the speech is going to materially and substantially interfere, the limitation is likely to be upheld. (address the other two
issues quickly). Courts usually give great deference to schools.
Materially and Substantially Interfere
The government must show that the forbidden conduct materially and substantially interfere with the requirements of appropriate discipline in the
operation of school. The government must show something more than mere fear of disturbance, the government must show actual harm.
Tinker v. Des Moines Independent Community School District— High school students joined parents in protesting Vietnam War & wore
black armband for period. School told them to remove armband or be suspended. Court said 1 st A protected ability of students in high school to
wear armbands to protest Vietnam War. In our system, state-operated schools may not be enclaves of totalitarianism. School officials don’t
possess absolute authority over their students. Students are possessed of fundamental rights, which the state must respect. Armbands were a
silent protest that didn’t disrupt education w/in schools. There is no indication the work of schools or any class was disrupted –speech was
protected absent a showing it would materially & substantially interfere w/req of appropriate discipline in operation of school. Students
don’t lose their rights at the schoolhouse gates. School must show that its action was caused by something more than a mere desire to
avoid the discomfort & unpleasantness that always accompanies an unpopular viewpoint. Also, school allowed other forms of political speech.
Bethel School District No. 403 v. Fraser—Court applied Tinker Rule & upheld punishment of student for speech given at school assembly,
where student speech was filled w/sexual innuendo. Student was suspended & kept from speaking at graduation. Speech was plainly lewd &
offensive to both teachers & students & likely insulting to teenage girls & req teachers to speak to students about it to ease environment.
Penalties imposed were unrelated to political viewpoint. 1st A rights of students in public schools ‘are not automatically coextensive
w/rights of adults in other settings. Determination of what manner of speech in classroom or school assembly is inappropriate properly rests
w/the school board. Court distinguished Tinker on ground it involved political speech (wearing armbands, so passive speech) whereas
here the expression was sexual in nature. It’s highly appropriate function of public school education to prohibit use of vulgar & offensive
terms in public discourse. High school assembly or classroom is not place for sexually explicit monologue & it was perfectly appropriate for
school to disassociate itself to make point to pupils that vulgar speech is wholly inconsistent w/ ‘fundamental values’ of public school education.
School sponsored event – FACT specific.
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Morse v. Frederick— Principal suspended high school senior for displaying large banner reading “Bong Hits 4 Jesus” at school supervised
event (Olympic torch) b/c believed banner promoted illegal drug use & school had policy that prohibited public expression that advocates use
of illegal substances. Court held 1st A not violated when student was punished. Event was school speech case as event occurred during
normal business hours & supervised by teachers. Sign would be understood as referring to smoking marijuana as good thing, thus, principal
could rsbly interpret banner as encouraging illegal drug use & schools have important interest in stopping such speech. Tinker applies BUT
deterring drug use by school children is compelling interest. Thus, allows schools to restrict student expression that they rsbly regard as
promoting illegal drug use. The fear here is greater.
Reasonably related to legitimate interest
The government must prove that the limitation is reasonably related to a legitimate education concern. Only when decision to censor a school
sponsored publication, theatrical production, or other expression has no valid educational purpose that the first amendment is violated.
Hazelwood School District v. Kuhlmeier—School newspaper was going to public, w/approval of faculty advisor, stories about 3 students’
experience w/pregnancy & impact of parents divorce on students. No students’ names were included in articles, but principal decided to
publish paper w/out articles by deleting 2 pages on which they appeared b/c (1) articles on pregnancy discussed sexual activity & birth control
in manner inappropriate for some younger students, (2) 3 students in pregnancy article might be identified from other aspects of article, & (3)
parents of students about divorce should have opportunity to respond. Court upheld principal’s decision & rejected 1st A challenge. School
newspaper was nonpublic forum where school sponsored paper & promoted particular speech through name & resources of dissemination of
human expression, & as result school officials entitled to regulate content of school newspaper in any rsbl manner. Too much of a connection.
Thus, schools have broad authority to regulate student speech. Court gives more discretion to school related to content allowed. Not just about
student’s speech, in part it is schools speech too b/c of name/publication - must be rsbly related to pedagogical (educational) concerns.
Speech of Government Employees
The Supreme Court has held that the government may not punish the speech of public employees if it involves matters of public concern unless
the state can prove that the needs of the government outweigh the speech rights of the employee. Generally, speech by government employees is
less protected. In order to determine if a government employee has First Amendment protection, the court first whether the employee spoke in the
capacity of a citizen or an employee of the government.
Citizen v. Employee
If the employee spoke in the capacity of a citizen on a matter of public concern, the question becomes whether the relevant government entity had
an adequate justification for treating the employee differently from any other member of the general public. If the employee spoke in the capacity of
an employee of the government, the employee has less protected First Amendment rights.
Government Justification (For Citizen Speaking)
The government must prove they have adequate justification for its action. The restrictions it imposes must be directed at speech that has some
potential to affect the entity’s operation.
Garcettie v. Ceballos—Valid. Ceballos, supervising DA in LA County, concluded a W, a deputy sheriff, wasn’t telling the truth. He wrote
memo to this effect & felt he was req by Const. to inform defense of this. As a result of this speech, ∆ alleged his employers retaliated against
him. Court held Ceballos’ speech was not protected by 1st A & drew distinction btw speech “as a citizen” as opposed to “as a public employee”;
only former is protected by 1st A. “When public employees make statements pursuant to their official duties, employees aren’t speaking
as citizens for 1st A purposes, & Const. ø insulate their communications from employer discipline.” Controlling factor is that his
expression was made pursuant to his duties as a deputy fulfilling his duties to advise his supervisor & fact his duties sometimes required him to
speak or write does not mean his supervisors were prohibited from evaluating that performance. High interest in promoting employer’s mission.
Freedom of Association
The Supreme Court has held that freedom of association is a fundamental right protected by the First Amendment because groups all sorts can
convey a message. Freedom of association is not explicitly enumerated as a fundamental right in the Constitution but rather derived from a “liberty”
interest under due process of the Fourteenth Amendment.
Laws Prohibiting and Punishing Memberships
Freedom of Association is most directly infringed if the government outlaws and punishing membership. The government may punish membership
only if it proves that a person actively participated with a group, knowing of its illegal objectives, and with the specific intent to further those
objectives.
Active Participation
The government must show that the individual actively affiliated with the group. Conduct showing an initiative to be part of the group is not likely
enough, i.e. signing a check.
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Knowing of its illegal objectives
The government must prove there was actual knowledge of the group’s illegal objectives of the group.
Specific intent to further the illegal objectives
The government must finally prove the individual had the specific intent to further the illegal objectives. Generally speaking about the group’s
objectives is not enough, there must be proof of illegal advocacy in that individual has to the intent to commit the illegal activities.
Noto v. United State—Court reversed conviction for membership in a Communist party b/c of the absence of “illegal advocacy.” The speech
was advocacy of abstract ideas & not proof the individual had the specific intent to further any illegal activities.
Elfbrandt v. Russell—Court declared unconstitutional a state’s loyalty oath & law that prohibited anyone from holding office if they were
member of group. Impermissible for gov to punish individuals for being member of group w/out proof individual joined org knowing of its illegal
objectives & w/the specific intent to further them. Law unconstitutional b/c “threatens the cherished freedom of association protected by
1st A.” Nothing in oath purported to exclude association by 1 who doesn’t subscribe to org’s unlawful ends. Can’t punish for mere membership.
Laws Requiring Disclosure of Membership
Disclosure of membership laws may infringe the fundamental right of freedom of association. The Supreme Court has held that the government
may require disclosure of membership only if it meets strict scrutiny. The law must be narrowly tailored to serve a compelling governmental
interest. The court is concerned that membership disclosure will chill association.
 Shelton v. Tucker
NAACP v. State of Alabama EX REL. Patterson—Invalid court order. Court declared unconstitutional law that req out-of-state corps. meet
certain disclosure req. In connection w/ law, Alabama req NAACP disclose membership lists. Π agreed to provide list of officers & paid
members, but asserts list is protected & may assert personal privacy interests of each member. Court recognized vital relationship btw
freedom to associate & privacy in one’s associations. Inviolability of privacy in group association may in many circumstances be
indispensable to preservation of freedom of association, particularly where group espouses dissident beliefs.” Revelation of identity
of rank & file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, & other
manifestations of public hostility. Court rejected gov interest in info for tax purposes b/c it wasn’t a good enough reason.
Compelled Association
It is an infringement of the First Amendment to force an individual to contribute or pay for ideological causes with which they disagree with. To
survive constitutionality, a compelled association law must be viewpoint.
Board of Regents of University of Wisconsin System v. Southworth—U of Wisconsin collects $ per year from each student. 8% of $
supports student health services, athletics, & maintains student union. Other 20% supports registered student orgs, including those engaged in
political or ideological speech. Although policy may have been viewpoint neutral in allowing funding for various groups, it was taken out of
realm of neutrality when school implemented process of majority vote as to who would receive funding. May block unpopular views from being
treated like popular views. Court refused to apply “germane to the purposes of the org” standard. Bar association – running of being a lawyer,
not lobbying…freedom of speech, free flow of ideas and sharing. Vast unexplored bounds. We want as broad as possible.
Laws Prohibiting Discrimination
Many state and local governments have adopted laws that prohibit discrimination by private groups and clubs. Individuals challenging these laws
are likely to bring claims that the right to association protects a right to discriminate and that the group can exclude whomever they want from their
group. The court has indicated that freedom of association would protect a right to discriminate only if it is an intimate association or where the
discrimination is integral to express activity. Thus, the court will first determine if the group is a public or private expressive association by looking
at several factors. The court will then apply strict scrutiny or reject strict scrutiny dependent on whether the organization is public or private.
Private v. Public Org
The court looks at several factors in determining whether the organization is a public or private organization: size of the organization; purpose of
the organization; the policies of the organization; whether the organization is selective in its membership; and the organization’s congeniality.
Roberts v. United States Jaycees—Valid. Jaycees, young men btw 18-35, challenged Act that prohibited private discrimination based on
race & sex. J’s objective was to promote growth of orgs for young men & to exclude women. Associate membership is available to older men &
women. But, they cannot vote, hold office, or participate in leadership training. 1 chapter began admitting women as regular members. They
got in trouble with big guys & argued by-laws violate state law against discrimination. Freedom of association is a fundamental right & there
can be no clearer example of intrusion into internal structure or affairs of association than regulation that forces group to accept
members it doesn’t desire. Applying factors more like a public org b/c org was small but nonselective & there was no criteria as to age or sex
since both men & women, young & old, were permitted even if that meant they had lesser rights. Strangers were permitted. Thus, SS.
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Compelling interest in discrimination & law justifies right b/c it does not aim at suppression of speech, not based on viewpoint. Law also
advances those interests through least restrictive means of achieving its ends. Letting women in would not change their purpose.
Public org - Strict Scrutiny
The court applies strict scrutiny to association cases. Infringements on that right may be justified by regulations adopted to serve compelling state
interests, unrelated to the suppression of ideas that cannot be achieved through means significantly less restrictive of associational freedoms.
Private Org – Not arbitrary
In Boy Scouts of America v. Dale the Supreme Court rejected the strict scrutiny analysis for private organizations and stated that a private
organization cannot be compelled to accept a member whose beliefs do not align with the tenants upon, which the organization stands. Because
here it was determined the org was a private org, it falls under Boy Scouts (do analysis how this would significantly burden and affect the ability of
the organization to advocate their viewpoint).
 Hurley
Boy Scouts of America v. Dale—Invalid. Court held freedom of association protects right of Boy Scouts to exclude gays in violation of state’s
antidiscrimination statute. Life-long Boy Scout was scoutmaster, but when π learned of his homosexuality, his membership was revoked. Boy
scout brought suit to enjoin action & Court, under public accommodations law, required π to admit boy scout. Expressive association to instill
value into kids to keep them clean & morally straight. It’s a big org, arguably selective due to religion, & congenial so likely public org.
Mandating inclusion would force org to convey message accepting such behavior so it would affect ability to advocate their purpose. ø compel
them to accept members normally wouldn’t accept. Dales presence alone created message & they ø want to express message is
okay to associate w/ gay people. Based on purpose & policies listed to achieve such purpose. Court can focus on just one factor.
Expressive Association in a Limited Public Forum
The Supreme Court held that when dealing with issues of both speech and freedom of association in a limited public forum, the States may
exclude speech where its distinction is reasonable in light of the purpose served by the forum and where the limitation on speech is not based on
viewpoint. Other alternative channels for communication are not required, but can be informative as to whether the law should be upheld.
CLS Hastings v. Martinez—Hastings req “Registered Student Orgs” accept “all-comers” & prohibited discrimination based on characteristics
such as race, sex, religion, disability, or sexual orientation. For many years, CLS chapter complied w/ this policy. In 2004, CLS reconstituted
itself & formed relationship w/the national CLS. Hastings Chapter then req its members sign “Statement of Faith” which affirmed belief in Jesus
as savior & also excluded “unrepentant homosexuals.” Hastings refused to recognize CLS as “Registered Student Org,” which meant it
couldn’t get student activity funds or officially reserve school facilities for its use. Court ruled in favor of Hastings saying Hastings had
created a limited public forum & since it was LPF the regulation was to be allowed so long as it was rsbl & viewpoint neutral & here, it was
rsbl for Hastings to have an “all-comers” policy, req every student group be open to all members in the school, it brings together individuals
w/diverse backgrounds & beliefs, ‘encourages tolerance, cooperation, & learning among students.’ Just b/c viewpoint is unpopular, ø mean you
get more protections than usual. Policy was viewpoint neutral. Parties had entered into stipulation in trial court that Hastings administered its
policy w/out regard to belief & based on this stipulation found Hastings policy was VN. Factual stipulations are binding & conclusive.
Freedom of Religion
The First Amendment provides that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
The Constitution has been interpreted as two separate clauses: the Establishment Clause and Free Exercise Clause. Both clauses protect
freedom of religious belief and actions. There are conflicting pressures between the two clauses, but the court has held there is room or “play in
joints” between the clauses as well.
What is religion?
The Supreme Court has held the test for whether a particular belief is a religious belief is whether there is a sincere and meaningful belief that
occupies the place of its possessor parallel to that filled by the orthodox belief in god. In determining what is “sincere”, the court considers the
genuineness and depth of the religious belief, not whether the religion is actually true or false. The court has also held the dominant views of a
religious faith are not determinative as to whether a particular belief constitutes religion.
United States v. Seeger—Invalid. Involved individual who sought religious exemption from draft, but denied any belief in Supreme Being.
Act est. a draft for men with exemption for ‘conscientious objectors’ for those who opposed participation in war. ‘Religious training & belief’ is
defined as “individual’s belief in relation to Supreme Being involved in duties superior to those arising from any human relation, but not
including essentially political sociological, or philosophical views or merely a personal moral code.” Seeger claimed belief in nontraditional
religion. The law defined “religious training and belief” as “an individual’s belief in relation to a Supreme Being involving duties superior
to those arising from any human relation, but not including essentially political, sociological, or philosophical views or a merely
personal moral code.” Congress in using ‘Supreme Being’ was merely clarifying meaning of religious training & belief as to embrace all
religions & to exclude essential political, sociological, or philosophical views. Very broad test. Here, belief was sincere & meets criteria
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United States v. Ballard—Conviction invalid. Leaders of “I Am” religion indicted for mail fraud b/c asked people to send them donations in
exchange for offering to cure them of diseases. Charge indicated B knew these claims were false. Court said jury could be asked to decide
only if ∆s sincerely held their beliefs as religious views, not whether or not ∆s actually had curative powers. If 1 could be sent to jail b/c a jury
in a hostile environment found those teachings false, little indeed would be left of religious freedom. Many ppl believe what they ø prove & you
can’t require them to make such an argument that they don’t contain false representations. Gov has to bring in other evidence such as another
purpose to show it is not true. Cannot ask person asserting religion to be true whether it’s true or false. Can only attack sincerity of their belief.
Free Exercise Clause
The Supreme Court has held that the government is not permitted to compel or punish the freedom of religious belief. However, the free exercise
clause does not provide absolute protection for religiously motivated conduct. Thus, the free exercise clause has been interpreted to embrace to
concepts: the freedom of belief and the freedom to act. The first is absolute the second is not. The free exercise clause does not relieve an
individual of complying with a neutral and generally applicable law on the basis that the law prescribes or proscribes conduct a religious prescribes
or proscribes. If the court determines the law is neutral and of general applicability, the court will apply some form of rational basis in theory and
will likely uphold the law. If the court determines the law is not generally applicable or neutral, the court will apply strict scrutiny under Sherbert.
Is the law neutral and of general applicability?
A law is neutral and generally applicable, if the law applies to everyone regardless of religious affiliation. The court will consider whether the law
infringes or restrict religious practice based on the law’s religious motivation regardless of whether the law is facially neutral. If the court determines
the law is neutral and of general applicability, the court will apply some form of rational basis in theory and likely uphold the law as long as the law
is not in conjunction with any other constitutional rights. If the court determine the law is not neutral and not of general applicability, the court will
apply strict scrutiny under Sherbert.
Strict Scrutiny under Sherbert
Since it has been determined the law is not neutral nor generally applicable, the court will apply the Sherbert test. To survive constitutionality under
the Sherbert test, the law must be justified by a compelling state interest, in the regulation of subject that is within the state’s constitutional power to
regulate and there can be no other alternatives to the regulation.
Employment Division, Dept. of Human Resources of Oregon v. Smith—Valid. Oregon prohibits possession of controlled substances w/out
prescription. Peyote is on list of controlled substances. Π fired from job for using peyote as part of religious ceremony & denied unemployment
benefits b/c of his “misconduct.” Court held free exercise clause couldn’t be used to challenge neutral law of general applicability. No matter
how much law burdens religious practice, it is constitutional under Smith so long as it ø single out religious behavior for punishment & was not
motivated by desire to interfere w/ religion. Here, law ø attempt to regulate religious beliefs, communication of religious beliefs, or raising of
one’s kids in those beliefs – ONLY THE ACT & want to regulate health & safety. Sherbert compelling interest is too high & Court would’ve to
consider all regulated conduct since country recognizes so many diff religions.
Sherbert v. Verner— Invalid. Court expressly held SS should be used in evaluating laws burdening free exercise of religion & declared
unconstitutional denial of unemployment benefits to woman who was discharged from job rather than work on Saturday. Although burden is
indirect, law forces her to choose btw following her religion on one hand, v. abandoning precept of her religion in order to accept work. As far
as compelling interest, Court says under high level of scrutiny, there are other ways to achieve interest in abusing unemployment system.
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah—Invalid. Santeria called for animal sacrifices. In response to news that Santeria
church was to be built in city of Hialeah, city council held emergency public session in order to pass 3 laws outlawing any animal sacrifices in
connection w/ Santeria rituals. Gov claims interest in public health & safety & cruelty to animals. Court finds that law doesn’t meet either
element. Law accomplishes religious gerrymandering to proscribe religious killings of animals but to exclude almost all secular killings, and the
ordinance suppresses much more than religious conduct than is necessary. The law fails general applicability because the law is
underinclusive b/c it fails to prohibit nonreligious conduct that endangers these interests in a similar or greater degree.
Hosanna-Tabor Evangelical v. EEOC—Ministers, Court found that holding the religious institution liable for choices it makes as to who will be
its ministers infringes the FEC. By imposing unwanted minister, state infringes the FEC, which protects a religious group’s right to shape its
own faith and mission through its appointments. When something’s dealing with internal workings of faith itself – the religious organization then dealing with FEC. Not necessarily dealing with every single thing a faith organization would touch.
Statutory Protection of Religious Freedom
Cutter v. Wilkinson—Law valid. RLUIPA provides that gov shall not impose substantial burden on religious exercise of person in confinement
unless they have compelling interest. Π inmates adhere to untraditional religious sects & complained that prison officials failed to
accommodate their religious exercise in various ways. Court rejected constitutional challenge that law violated Est. clause by impermissibly
favoring religion & concluded gov’s accommodation of religion & protection of free exercise of religion didn’t impermissibly establish religion.
Court left open issue of whether law was permissible exercise of Congress’s powers. Applying Act, courts must take into account burdens
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requested accommodation may impose on non-beneficiaries, & must be administered neutrally among different faith. Act does not override gov
interest to maintain order & safety as court gives great deference to prisons. Also, law does not differentiate among faiths nor single out one.
Is Denial of Funding for Religious Education a Violation of Free Exercise of Religion?
Denial of funding for religious education from an otherwise inclusive aid program does not violate the Free Exercise Clause of the First
Amendment.
Locke v. Davey—Valid. Court held state government could restrict its college scholarships so as to prevent them from being used by those
studying for ministry. While gov may constitutionally allow such use of its scholarships, it is not constitutionally req to do so. WA’s program of
giving scholarships to students who qualify academically & financially & who attend college in state – allowing attendance at any public, private
college, or religiously affiliated college, & may study whatever they choose. However, students must not pursue a degree that is “devotional” –
student cannot use scholarship to study for training to become a minister. WA justified this restriction based on a provision in its state
Constitution. Court rejected contention that restriction violated free exercise clause b/c if WA wanted to, it could allow scholarships to be used
by students studying to be clergy members. As to Est clause, link btw gov funds & religious training is broken by independent & private choice
of recipients. Program still permits students to attend pervasively religious schools so long as they are accredited & students are still able to
take theology courses. State’s interest is substantial & exclusion of such funding places a relatively minor burden.
The Establishment Clause
Under the Establishment Clause, the government is not permitted to establish any type of religion or non-religious view. The government cannot
promote or affiliate with any religious doctrine or organization, discriminate against a person based on belief and practices or lack of religious
beliefs and practices, and can’t delegate its power or involve itself too deeply in religious affairs. It is firmly established that the government is not
permitted to discriminate amongst religious groups. When it is claimed that a denominational preference exists, the initial inquiry is whether the law
facially differentiates among religions. If so, strict scrutiny is applied. If the law is non-discriminatory, the case is reviewed under the Lemon test.
County of Allegheny v. American Civil Liberties Union, Greater Pittsburg Chapter—Crèche invalid. Menorah valid. Majority followed
neutrality approach. Case concerned 2 different state-sponsored religious displays that ACLU challenged as unconstitutional: One was a
crèche – a representation of the nativity of Jesus – that was placed in a display case in a stairway in a county courthouse. The other display
was in front of gov building & included large Christmas tree, large menorah (candleholder used for Chanukah celebration), & sign
saying city salutes liberty during holiday season. The court distinguished this case from Lynch b/c the crèche stood alone as the single
element of the display. Thus, the crèche in this case had the effect of the state endorsing whatever religion is associated with the symbol. The
menorah stood next to Xmas tree and a sign saluting liberty. Thus, it is different if purpose was only to create an overall holiday setting
representing both Xmas and Chanukah, no evidence the city was only recognizing them not celebrating. Next to building or in building, court
sees a difference in effect of establishment or endorsement of religion. Concurring  strict approach, Dissent  Accommodating
Strict Scrutiny
Since it has been determined the law differentiates between denominations, the law must be narrowly tailored to serve a compelling governmental
interest.
Larson v. Valente— Invalid. Applied SS. Larson was responsible for Minnesota Charitable Solicitation Act which regulated charitable
organizations that received funds from public. 50% rule was instituted that req all religious orgs receiving more than 50% of all contributions
from non-members to make full disclosure each year. It is impermissible to favor or choose one religion over other, so SS. Interest in protecting
citizens from abusive practice compelling interest. However, law is not narrowly tailored. Court rejects argument that law is ok b/c orgs will
exercise supervision/control over solicitation activities that exceed 50%; membership control is adequate safeguard of abuses
Lemon Test
Since it has been determined the law is not discriminating amongst religions, the court will apply the Lemon test. In Lemon v. Kurtzman, the court
stated there are three main evils against which the Establishment Clause is intended to afford protection: sponsorship of a religious activity;
financial support of a religious activity; or an active involvement in religious activity. The court has used these “evils” as a guide to when the Lemon
Test should be applied. Under the Lemon test, the law must meet a three prong test to survive constitutionality: the law must have a secular
purpose; the must have secular effects; the law can’t foster an excessive entanglement with religion. In some cases, courts will also consider the
history, tradition, nature, and context of the religious activity to determine if the government is endorsing a religious or non-religious view.
Lemon v. Kurtzman— Invalid. Applied Lemon Test. (nondiscriminatory b/c not favoring 1 religion over another) – PA statute reimburses
religious schools for teacher salaries, textbooks, & other instructional materials. RI has a similar statute that allows the state to pay private
school teachers a 15% salary supplement. Here, statutes themselves clearly state they are intended to enhance quality of secular educations
in all schools covered by compulsory attendance laws. However, cumulative impact of entire relationship arising under statutes in each State
involves excessive entanglement between gov & religion.
Secular Purpose
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The court looks at the legislature’s purpose when passing the law and requires the law to not specifically relate to religion. The law is permitted to
have both a religious and non-religious purpose as long the law has a predominately secular purpose.
Stone v. Graham – State law unconstitutional that required Ten Commandments to be posted on walls of every public school classroom.
Wallace v. Jaffree—court invalidated state law that authorized public school teachers to hold a 1-minute period of silence for meditation or
voluntary prayer finding the purpose behind law was to reintroduce prayer into public schools & deemed the law unconstitutional b/c it “was
not motivated by any clearly secular purpose—indeed, the statute had no secular purpose.”
Edwards v. Aguillard – ruled unconstitutional a state law that required that public schools that teach evolution also teach creation science.
Primary purpose of the Creationism Act is to endorse a particular religious doctrine.
McGowan – upheld the constitutionality of state laws requiring businesses to be closed on Sunday. The court said it was permissible because
the present purpose and effect of most of these laws was to provide a uniform day of rest for all citizens.
Principal and Primary Effect
The principal or primary effect of the law must be one that neither advances nor inhibition religion. The court looks at whether the governmental
action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement and by the non-adherents as a
disapproval of their individual religious choices.
Estate of Thornton v. Caldor – statute provided no person may be req by an employer to work on his or her Sabbath. The court declared the
law unconstitutional and said that the law created an absolute and unqualified right for individuals to not work for religious reasons and thus
favored religion over all other interests. Statute goes beyond having a remote or incidental effect, but a primary effect of advancing religion
Amos case – court found constitutional an exemption for religious orgs from Title VII’s prohibition against discrimination in employment based
on religion. It met the three prong test of Lemon. The law allows churches to advance religion, not the government itself advancing religion.
Excessive Entanglement
A law violates the Establishment Clause when it requires a “comprehensive, discriminating, and continuing state surveillance.” If so, the court
determines such conduct to be an excessive entanglement.
Example  the government cannot pay teacher salaries in parochial schools, even for teachers of secular subjects.
Other stuff 
Religious groups using school facilities  Limited Public Forums/Non Public use analysis, once you open it up to one person, you have to
open it up to everyone.
Widmar v. Vincent – declared unconstitutional a state university’s policy of preventing student groups from using school facilities for religious
worship or religious discussion. Once create open forum, have to let everyone use it. University discriminated against student groups
based on desire to use generally open forum to engage in religious worship. B/c University had created public forum by opening
these places to speech, in order to justify it’s exclusion based on religious content, it must satisfy SS. Excluding to be consistent
with Est. Clause is not enough. Court applied Lemon test & held that it would not have been an establishment of religion.
Lamb’s Chapel – declared unconstitutional a school district’s policy of excluding religious groups from using school facilities during evenings
and weekends. Court followed reasoning in Widmar & held that once gov chose to open its facilities to community groups, it could
not discriminate against those engaging in religious speech unless SS was met. Same holding as Widmar
Good news club v. Milford –school policy unconstitutional that allowed community groups to conduct after-school programs for students, but
excluded religious groups who were essentially conducting workshop sessions, including Bible study. Excluding religious groups is
impermissible content-based restriction on speech b/c denied access solely b/c of religious content of speech &, allowing group to use facilities
ø violate Est. Clause if religious & nonreligious groups treated equally. If letting students meet, must let all groups meet regardless of content.
Student groups receiving funds  it is not an establishment of religious if a public school funds a religious organization as long as the funding
and means for funding is viewpoint neutral. (Rosenberg)
Rosenberger v. Rector & Visitors of University of Virginia— invalid for 2 reasons using SS finding viewpoint discrimination State
university refused to give student activity funds to Christian group that published expressly religious magazine. Formed group as non-religious
for printing funds, but funding turned down b/c publication expressed religious viewpoints, which may be construed as views of university.
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
First, denying funds to religious student groups was impermissible content-based discrimination against religious speech
–gov unconstitutionally discriminating against Christian group b/c of religious content of speech. Gov does have wide discretion when
choosing to allocate scarce financial resources, but can’t discriminate based on viewpoint. Danger to liberty in giving State power to
examine & determine publications and danger to speech from chilling ind. though & expression.
 Second, providing funds to religious group wouldn’t violate est. clause. “Governmental program is neutral toward religion.” Gov
was acting w/ purpose & effect of helping student groups & fostering wide array of activities & viewpoints on campus. No diff in logic
or principle, & no difference of constitutional significance, btw school using funds to operate a facility to which students have access,
and a school paying third-party contractor to operate the facility on its behalf. There is no Est Clause violation in University’s
honoring its duties under the Free Speech Clause.
University ø exclude religion as subject matter but selects for disfavored treatment those student journals with religious viewpoints. The denial
was justified by the fact that the content reveals an avowed religious perspective. Not enough.
School Prayers and Bible readings  The government cannot coerce anyone to support or participate in religion or its exercise, or otherwise
act in any way that establishes any religion in any way.
Santa Fe Ind. School District v. Doe—Invalid. Kind of applied Lemon Test & said endorsing religion. Court held student-delivered
prayers at high school football games violates est clause. Santa Fe developed tradition of having student deliver prayer before varsity football
games. After challenged in litigation, school adopted policy where students would hold 2 elections: One held to determine whether
“invocations” should be delivered before games, & second to select student prayer leader. This is public speech, not private speech. It is
authorized by school policy & takes place on gov property at school-sponsored event. There is a 2-part election in picking speakers & message
that will be delivered. School in end makes the decision. Message is broadcasted over school’s public address system, which is in control of
school officials. Ceremony is clothed in school sporting events with name of school. Court not persuaded pregame invocations should be
regarded as ‘private speech.’ Invocations are authorized by gov policy & take place on gov property at gov-sponsored school-related
events. School encouraged delivery of prayers, both in official policies & in traditional support for prayer at football games. Result is both
actual & likely perceived gov endorsement for religion. Noted coercive aspects of school’s policy in that many students – football players, band
members, cheerleaders – were req to be present in order to receive academic credit, as well as benefits from participating in extracurricular
activity. Forcing students to choose btw attending game & avoiding religion itself violated est clause.
Engel v. Vitale—Invalid. Initial decision that held prayers in public schools to be unconstitutional. Engel invalidated school policy of having
“non-denominational prayer,” composed by state’s Board of Regents, recited at beginning of each school day. There can be no doubt that
NY’s state prayer program officially est. religious beliefs embodied in the prayer…Neither the fact prayer may be denominationally
neutral nor fact its observance on part of students is voluntary can serve to free it from limitations of Est Clause. Est clause rests on
belief that union of gov & religion tends to destroy gov & degrade religion… Est Clause thus stands as expression of principle on part of
Founders that religion is too personal, too sacred, too holy, to permit its ‘unhallowed perversion’ by civil magistrate. Court rejected argument
that forbidding prayers constituted hostility to religion: Can go else where for religious guidance. Prayer was written by governmental officials
as part of governmental program to further religious beliefs. Respondent argues not all students are req to participate, but Court still finds
violation b/c school went too far. Students are likely to still feel coerced, esp. when dealing with 7 year olds.
Lee v. Weisman—Invalid. This is coercion. Clergy-delivered prayers unconstitutional at public school graduations where rabbi invited to
deliver prayer at public school’s graduation ceremony & given copy of pamphlet/instructions from school that recommended prayers be
inclusive & sensitive. Inherent coercion in allowing prayer at graduation was stressed –students not req to attend graduation, but imp event in
person’s life & students likely feel psychological pressure not to miss the prayer, thus Court rejected argument that attendance is optional.
Attendance & participation in state sponsored religious activity are in fair & real sense obligatory. Esp. where principal acting for state chose
rabbi & provided guidelines for content of prayers. Dissenters to prayer are forced by state to pray in manner their conscience will not allow.
Heightened concern w/protecting freedom of conscience from subtle coercive pressure in elementary & secondary public schools. What to
most believers may seem nothing more than rsbl request that nonbeliever respect their religious practices, in school context may appear to
nonbeliever or dissenter to be attempt to employ machinery of State to enforce religious orthodoxy.
Government Speech  The government is permitted to make content based determinations when the speech is considered government speech
as long it is viewpoint neutral.
Pleasant Grove City, Utah v. Summon—Valid. Summum, a religious organization, sent a letter to the mayor asking to place a monument in
one of the city's parks. Although the park already housed a monument to the Ten Comm., the mayor denied the request because the
monument did not "directly relate to the history of the city." When a state has a permanent monuments displayed on public property typically
represent govt. speech. The government has used monuments to display a specific message whether it is through govt.
commissioned/privately financed/donated monuments. The govt. may not be literally conveying the message of the object or the donor. It also
reasoned that a park cannot accommodate all permanent monuments like it could try to accommodate all people.
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McCreary County v. ACLU of Kentucky— Invalid. ø have primary objective be religious & then throw in bunch of other stuff to make
it seem like it wasn’t religious. Need to have predominately secular purpose. Side issue is NOT sufficient – add to Lemon part. Court
declared unconstitutional county’s effort to post Ten Commandments in county buildings. Court stressed history of county’s actions left no
doubt it was acting w/ purpose of advancing religion in violation of first prong of Lemon test. When gov acts w/ ostensible & predominate
purpose of advancing religion, it violates central Est Clause value of official religious neutrality, there being no neutrality when gov’s
ostensible object is to take sides.” Content of Ten C’s & context of county’s actions left no doubt it was acting with purpose of advancing
religion. Reaffirmed Lemon test in that gov. action is permissible when such display has secular legislative purpose. First display not clearly
secular. Second display, was still impermissible purpose b/c display only added American documentation w/ religious references to show it had
wide acceptance. Third display only included more American documentation.
Van Orden v. Perry— Valid. Court rejected Lemon test & instead analyzed nature of monument & Nation’s history. TX State Capitol
Building contains 17 & 21 historical markers commemorating people, ideals, & events that compose Texan identity in its surroundings. A group
gifted to the Capitol monolith depicting Ten Comm. with eagle grasping American Flag, eye inside pyramid, 2 small tablets, stars of David, &
Greek letters. Monolith was accepted & placed on Capitol. Court compared factual circumstances of case to another in Kentucky. Gov had
statute that req all classrooms to have Ten C’s posted. That circumstance clearly is more obvious as it will be shown to elementary school kids
everyday. Not same as historical display outside of Texas Capital Building. Case diff from McCreary b/c here there was secular purpose. Gov
may place religious symbols on gov property. Gov ø place religious symbols on gov property in manner that symbolically endorses religion.
In determining whether particular display is symbolic endorsement of religion, courts must look at its history, its purpose, & context –But means
every religious symbol on gov property will have to be analyzed based on its unique facts & circumstances.
CURRICULAR DECISIONS – Religion as a Part of Government Activities: Legislative Chaplains
Marsh v. Chambers— Allowed gov payment of legislative chaplain b/c history of practice. State legislatures employed Presbyterian
minister for 18 years to begin each session w/ prayer. Allowed b/c of long history & tradition of religious invocations before legislative sessions.
Opening of sessions of legislative & other deliberative public bodies w/prayer is deeply embedded in history & tradition of country. From
colonial times through founding of Republic & ever since, practice of legislative prayer has coexisted w/ principles of disestablishment &
religious freedom & become fabric of our society.” Court need not apply Lemon test if strong historical support for particular gov practice of
supporting religion. But, unclear why history should be decisive & preclude analysis under Lemon test. Purpose of legislative prayers & paying
minister seems to advance religion. Paying minister, from 1 faith, for 18 years from public funds seems to have effect of advancing that religion
& entangling gov w/religion. Yet, by focusing exclusively on history, Court avoids these issues.
When Can Government Give Aid to Religion? – AID TO PAROCHIA ELEMENTARY AND SECONDARY SCHOOLS
Mitchell v. Helms—No majority, held gov may give instructional equipment to parochial schools so long as not used for religious instruction. 4
Justices would’ve allowed instructional equipment – computers, audiovisual equipment, & the like – to be used for religious education so long
as all religions are treated equally. 3 Justices would’ve prohibited gov from giving such aid to parochial schools b/c it could be used for
religious education. 2 Justices said such aid is allowed so long as not actually used for religious instruction. Court did not explicitly overrule or
disavow the entanglement inquiry. But difficult to see how this prong can survive Court allowing much more gov aid to religious schools.
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