I.
Attack Outline
Equal Protection
A. Applies to states and federal governments the same
B. EP Claim Generally:
1. Is it state action?
a) EX: Texas abortion law is trying to argue that because a private person is suing, it is NOT state
action
2. Are there two separate classifications?
3. Is there a government interest
a) See levels of scrutiny
4. How does the government meet such interest?
a) See levels of scrutiny
5. Is there standing?
C. Levels of Scrutiny (Carolene Products)
[type of scrutiny depends on “immutability”
and history]
What kind of government interest is needed?
What means to an end?
Strict
Compelling interest
Narrowly tailored/Least
restrictive alternative
Intermediate
Important interest → “exceedingly persuasive
justification”
Substantially related
Rational Basis Plus
Legitimate purpose
Rationally related
Rational Basis
Any conceivable purpose – not per se legitimate
Rationally related
1. Strict Scrutiny:
a) Includes immutable characteristics → “suspect” or “discrete and insoluar” classes
(1) Race; national origin
(a) Discrimination: have to balance EP rights with 1A
(2) Fundamental rights
2. Intermediate Scrutiny:
a) Gender discrimination
3. Rational Basis:
a) Everything else – age, economic/poverty, disability, etc.
b) The law must seek to rationally obtain the goal of the legislation
c) So long as there were plausible reasons for Congress’s action, a law does not have to be an actual
purpose so long as there is a conceivable purpose.
(1) Failure under RB is largely because a law is too arbitrary
D. Determining if there is a classification:
1. Overinclusivity
a) Law is overinclusive if it regulates individuals who are not similarly situated → covers more
people than it needs to in order to accomplish its purpose
(1) Not hiring those who use methadone. See NYC Transit Authority. → allowed schools to
fire teachers who smoked pot or for teaching Critical Race Theory
2. Underinclusivity
a) Laws are underinclusive when they do not regulate all who are similarly situated
(1) These laws raise concern that the gov has enacted a law that targets a particularly
politically powerless group or that exempts those with more political clout
E. EPC Standing
1. Facially discriminatory laws:
a) Discriminate on the surface of the law itself → standing automatically
2. Facially neutral laws:
a) To have standing, the party needs to show BOTH purpose and impact to successfully bring a
facially neutral claim
(1) Discriminatory purpose
(a) “Discriminatory purpose” implies more than intent as volition or intent as
awareness of consequences. It implies that the decisionmaker selected or
reaffirmed a particular course of action at least in part “because of,” not merely “in
spite of,” its adverse effects upon an identifiable group.
(i)
Very hard to show
(b) Race need only be a motivating factor and then the burden shifts to the other party.
If the other party can show a race-neutral justification then it is okay. → think
Batson strikes
(2) Discriminatory impact
b) UNLESS there is statutory standing which may take out the purpose element
(1) See Title VII → only need a “disproportionate” impact
F. Race Discrimination
1. 13A, 15A, 14A
2. SS applies
a) If some way to show there is a classification based on race, there has never been a compelling gov
interest
G. Remedying School Segregation:
1. Remedy typically is to immediately fix the problem
2. Lower courts will look to see if schools make good faith attempts (subjective). Schools must seek to make
these changes as soon as practical.
3. Once there is a court ordered finding, the power of district courts is broad – See Swann Factors.
a) Every type of remedy is available → affirmative action, elimination of one race schools, rearrange
school zones, busing (but these all have to be within that specific school district)
(1) Once there is full compliance, there is no longer SS
H. Affirmative Action
1. Classification of race → strict scrutiny
a) Compelling interest in diversity in an educational environment
b) No racial quotas/balances → not narrowly tailored
c) To be narrowly tailored: Race may be used as a factor but it must be flexible enough in
consideration as to consider all pertinent factors → individualized consideration is required AND
no race-neutral alternatives must be available
(1) May not automatically distribute extra points based on race
(2) This extends to private institutions as well (schools, businesses) because Gratz included a
line about Title VI and 42 USC § 1981
2. Affirmative action is not a requirement → voter initiatives blocking its use are constitutional.
I. Gender Classifications
1. Intermediate scrutiny applies
a) Classifications by gender must serve important government objectives and must be substantially
related to achievement of those objectives
(1) “Substantial justification” → There must be “exceedingly persuasive justifications” for
gender classifications.→ must be a very good reason for the classification
(a) National security meets this
(i)
But not biological proof
2. Distinctions based on stereotypes alone are unconstitutional
a) BUT when you can show the distinctions are not based on stereotypes, they just must meet
intermediate scrutiny to be upheld
3. Exceptions: biological differences; pregnancy discrimination
a) But statutes have largely created additional protection from discrimination
4. Affirmative action for gender is okay in contrast to racial affirmative action
II.
III.
a) Gender discirmination and stereotypes still in play for racial discrimination whereas racial ones
have been “remedied”
J. Alienage → Non-US Citizens (NOT National Origin → that falls under Race)
1. Strict scrutiny applies
2. Two exceptions to the use of strict scrutiny:
a) Government Functions
(1) Rational basis is used for alienage classifications related to self-government and the
democratic process “core of representative democracy”
(a) Police, teachers, voting rights, etc.
b) Congressionally-Approved Discrimination
(1) Where the discrimination is the result of a federal law (act of Congress or Congressional
delegation to federal agencies → but NOT federal agency acting on its own)
(a) Medicaid benefits being denied to aliens
3. Preemption may apply → the federal government may occupy the field and preempt states from acting
K. Undocumented Aliens
1. Rational Basis Plus
L. Illegitimate Children
1. Intermediate scrutiny
a) Proof of paternity is a legitimate justification
2. If the law is against ALL illegitimate children, it is always unconstitutional
3. If the law distinguishes between some illegitimate children, it may be unconstitutional → case-by-case
M. Age
1. Rational basis
a) ADEA provides protection though
N. Disability
1. Rational basis plus
a) ADA provides protection though
O. Wealth
1. Rational basis
a) If you can tie it to a fundamental right, it must be analyzed under strict scrutiny
(1) I.e. right to counsel; right to trial transcript free of charge in criminal case; right to vote
(2) But NOT education
(3) Bar on gov money for abortions is okay
P. Sexual Orientation
1. Level of analysis is not clear → rational basis?
a) Moral disapproval is not a legitimate state interest BUT see below
2. Right to privacy under DP
a) Same-sex marriage is a fundamental right
Additional Notes:
A. Doctrine of Constitutional Facts: if a mixture of facts and con law, appellate courts have the right to reconsider the
lower court’s fact finding
B. Adequate State Grounds Doctrine: SCOTUS will only review under its constitutional; state constitutions may
provide stronger protections and restrict federal courts from stepping in
Fundamental Rights
A. Can be brought under DP liberty or EPC
B. Three questions:
1. Is there a fundamental right?
2. Is the right infringed by the government?
a) Court considers the directness and substantiality of the interference
3. If fundamental right is infringed, strict scrutiny applies under EP // liberty under DP
a) If not fundamental right, likely RB applies
Due Process
“Liberty” in 14A → privacy interest
- Is the government’s interference justified by a
sufficient purpose?
Equal Protection
Levels of Scrutiny
- Is the government’s discrimination as to who can
exercise the right justified by a sufficient purpose?
Either can be applied to fundamental rights BUT:
- If a law denies the right to everyone → DP is best grounds for argument
- If a law denies the right to some but not others → EP is best grounds for argument
C. Fundamental Right to Privacy
1. Marriage
a) Fundamental right → SS
(1) NOTE: Wealth itself is not a fundamental right but if you can tie it to another fundamental
right, it must meet strict scrutiny
b) Same-sex marriage
(1) Fundamental right – SS
c) Part of right to privacy
2. Raising Children
a) Strict scrutiny
(1) Unwed fathers losing rights to their children if mother dies is not narrowly tailored
(2) Compelling interest to act in best interest of child and protect marital/familial unit
b) Parents have liberty interest to direct the upbringing and education of their children under their
control
3. Custody
a) Need “substantial” reason to terminate (unclear what exact level of scrutiny is used → likely SS)
4. Family Unit
a) Cannot define family too narrowly BUT can exclude those who are unrelated → SS
5. Right to Parentage
a) Strict scrutiny
(1) Can’t force public schools to teach in other languages
(2) Can’t force parents to send children to public schools
(a) Plus there are religious exemptions (Amish) to send 14/15 y/os to school
(3) Without a hearing, parents can send children to an institution
b) Strict scrutiny when it comes to laws that prohibits members of society from having children
6. Reproductive Freedom
a) Right to Procreate
(1) Strict scrutiny
b) Right to Contraceptives
(1) Strict scrutiny
(2) The Constitution is filled with penumbras which create zones of privacy. See Griswold. →
liberty interest in DP
c) Right to Abortion
(1) Right to abortion is fundamental. See Roe. → strict scrutiny
(2) Casey Test: Prior to viability, state must not impose a substantial obstacle or undue burden
on woman’s right to choose
(a) Bad is purpose or effect is to place substantial burden → pre-viability
(b) States are able to:
(i)
Force literature upon women (Casey)
(ii)
Limit federal funds (Rust)
(iii)
Limit method of abortion → ban “partial birth” (Gonzales → Court
applied rational basis)
(iv)
“Informed Consent” of woman (Casey)
(v)
Reporting and Record-keeping requirements
(vi)
(vii)
(viii)
Require waiting periods (Casey)
Require performers to be actual doctors
Require parental notice and consent BUT there must be an option for
judicial bypass: (Bellotti)
(a) Minor can go to a judge and show either (1) that she is mature
enough/well enough informed to make her decision independently;
or (2) even if she is not able to make the decision independently,
the desired abortion would be in her best interest
(c) States are not able to:
(i)
Require admitting privileges (Russo)
(ii)
Mandate spousal notification and consent
(d) Box v. Planned Parenthood → RB was used
(3) Spending:
(a) Federal funds can be conditioned on not even discussing abortion
7. Medical Care Decision-Making
a) Right to Refuse Treatment
(1) No absolute right
(2) Can require vaccinations and quarantines
b) Prisoners have right to be free from involuntary administration of antipsychotic drugs and while
they have a liberty interest, the interest is adequately met by notice and hearing before a tribunal of
medical and prison personnel at which the inmate could challenge the decision to administer the
drugs
c) Right to Terminate Life
(1) Incompetent individuals have a constitutional right to refuse lifesaving hydration and
nutrition BUT states can set the burden of proof
(2) Get around it by providing care to “alleviate pain”
d) Right to Physician-Assisted Death
(1) Assistance in committing suicide is not a fundamental liberty interest protected by 14A
DP. → laws banning it must thus only meet RB Plus
(2) But NOT an EPC violation:
(a) Differentiating between (1) those on life support with a right to physician-assisted
suicide and (2) those not on life support but have a living will
8. Informational Privacy → no fundamental right
a) Bank Secrecy Act – financial transaction of certain amounts
b) Background checks
9. Education → no fundamental right
D. Voting → other fundamental right besides privacy
1. Relevant Amendments
a) 12A – vote for POTUS and VPOTUS together
b) 15A – right to vote shall not be abridged on account of race, color, or previous condition of
servitude
c) 19A – right to vote for women//cannot be abridged on basis of sex
d) 24A – prohibits poll taxes in elections for federal office
e) 26A – right to vote to citizens who are 18+
f) Note: nothing in the Constitution provides an actual right to vote – it just restricts discrimination on
who can vote (if it is allowed)
2. No right to be a candidate
3. Poll Taxes
a) 24A prohibits them for federal office
b) Harper: poll taxes are unconstitutional as a denial of EP for all elections not covered by 24A →
extends prohibition to state office → strict scrutiny
4. Property ownership requirements:
IV.
a) Unconstitutional except for “special purpose districts”
5. Literacy Tests
a) Constitutional but outlawed by Voting Rights Act
6. Prisoners and Convicted Criminals’ Right to Vote
a) Those awaiting trial must be given absentee if they have no other way of voting
(1) BUT once convicted of a felony, a state may permanently disenfranchise the individual
(a) Where there is evidence of racially discriminatory purpose, states are prevented
from permanently denying the right to vote to those convicted of crimes involving
moral turpitude
(2) BUT cannot restrict ability to vote for someone convicted as a juvenile
(3) BUT cannot restrict based on race
7. Voter Identification
a) Constitutional → more than RB but ambiguous level of scrutiny
(1) Sufficient because of voter fraud and not excessively burdensome
8. Right to Candidacy
a) Not a violation of voting rights but may have 1A issues
9. Reapportionment / Malapportionment
a) Reapportionment is not a political question. See Baker v. Carr.
(1) Failure to reapportion to the current census is unconstitutional. See Reynolds v. Sims.
(a) Under EPC, states must make an honest and good faith effort to construct districts
in both chambers of their legislatures.
(i)
One person, one vote.
(2) States may use total population instead of voting-eligible population. See Evenwel v.
Abbott.
(a) Rational basis applies
b) Gerrymandering is a political question → not part of fundamental right. See Rucho v. Common
Cause.
(1) Racial gerrymandering is EPC issue → strict scrutiny
10. If restricting the right to vote based on race, bad under DP and EPC
Freedom of Expression
A. Regulation Based on Content
1. Content-based → often unconstitutional
a) Government cannot regulate speech based on content → Strict scrutiny
(1) A law is content-based if it applies to particular speech because of the topic discussed or
the idea or message expressed
(2) Gov can justify the restriction if there is a content-neutral justification but the justification
must be truly unrelated to the desire to suppress speech and it must be unique to the speech
suppressed as compared to the speech allowed
b) Types:
(1) Viewpoint
(a) Restricting expressions of ideas because they are offensive, immoral, scandalous
must meet strict scrutiny
(i)
See Matal v. Tam (PTO could not deny the trademark of “The Slants” just
because it is offensive to some).
(ii)
See Ianci v. Brunetti (PTO denying “immoral or scandalous” viewpoints).
(2) Subject-Matter
(a) Restricting based on the subject-matter/message of the speech
(i)
See Republican Party of Minnesota v. White (striking down provision of
state judicial ethics that prohibited judicial candidates from making
statements about disputed legal/political issues).
(ii)
See Williams-Yulee v. FL Bar (upheld a law that restricted judicial
candidates from personally soliciting funds → compelling interest:
preserving public confidence in the integrity of judiciary & narrowly
tailored: no less restrictive alternative).
2. Content-neutral → often constitutional
a) Intermediate scrutiny
B. Government Speech
1. When gov is speaking → it is exempt from 1A
a) Would a reasonable person think gov is speaking
2. When gov is regulating → it is not exempt from 1A
3. Must analyze if something is an infringement of speech,
a) If infringement → go through entire weighing process
b) If not an infringement, it is just the government speaking → no 1A application
(1) Awarding grants based upon artist work and capability → not infringement of speech →
gov speech
(2) Display of privately donated, permanent monument at public parks (if it was temporary, it
may be a different story) → gov speech
C. Vagueness and Overbreadth
1. Vagueness
a) Law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and
what is permitted → ex: what is “loitering”
(1) Often fought for being facially bad but sometimes interpreted only on the specific
application
2. Overbreadth
a) Law is unconstitutionally overbroad if it regulates much more expression than the Constitution
allows to be restricted will be declared unconstitutional
(1) Has to be substantially and vastly too broad → high bar
(2) No signs on public property is okay
(3) To not interrupt on duty police is overbroad
(4) Prohibit child pornography - not substantially overbreadth
(5) Restricting registered sex offenders from accessing ANY website with children because it
is overbroad → it could include Amazon and WebMd
D. Prior Restraint (often combined with overbreadth/vagueness issues)
1. “Prior restraint” describes administrative and judicial orders forbidding certain communications when
issued in advance of the time that such communication are to occur. See Alexander v. US.
a) Anytime gov restricts someone’s ability to speak → licensing
b) But there are certain times when gov should be able to regulate this speech
(1) Licenses and permits may be allowed if they are reasonable time, place, and manner
restrictions BUT there must be fair procedural safeguards
(2) Religious speech (has same protection as political speech; content-based or contentneutral)
c) Sometimes gov. speaking has the right to determine if 1A applies to itself
(1) When is something compelled speech and when is it gov speech? → must balance on
case by case
d) NYT v. US: gave very little room for gov to claim national security as prior restraint → unclear if
gov can ever successfully use national security as a prior restraint
e) Three requirements to determine if a prior restraint on pretrial press is justified: (NO case has met
these three requirements)
(1) The nature and extent of the pretrial news coverage;
(2) Whether other measures would be likely to mitigate the effects of unrestrained pretrial
publicity; and
(3) How effectively a restraining order would operate to prevent the threatened danger (would
it actually work?)
f) Licensing
E.
F.
G.
H.
I.
(1) As stated above, licenses and permits may be allowed if they are reasonable time, place,
and manner restrictions BUT there must be fair procedural safeguards
(a) Cannot give gov official full discretion on to deny/grant without reason
(2) When a licensing statute allegedly vests unbridled discretion in a government official over
whether to permit or deny expressive activity, one who is subject to the law may challenge
it facially without the necessity of first applying for (and being denied) a license.
(3) Procedural Safeguards:
(a) Must be a full and fair hearing before speech is prevented and there must be a
prompt and final judicial determination of the validity of any preclusion of speech
Infringements of Free Speech
1. Laws that significantly burden speech are ones that allow civil liability for expression; that prevent
compensation for speech; that compel expression; that condition a benefit on a person’s foregoing
speech; and that pressure individuals not to speak.
2. Prohibitions on Compensation:
a) Prohibiting individuals from being paid for their expression is infringement of FoS. See Simon &
Schuster
b) Financial burden on speakers, even gov employees, is unconstitutional. See US v. National
Treasury Employees.
Compelling Speech
1. Symbolism through action is communication.
2. You have a right not to speak
a) Schools cannot force students to salute the flag. See WV State Board of Ed v. Barnette.
3. Cannot force public employees who are non-union members to pay shares of union dues. See Janus v.
American Freedom.
4. License plates → courts differ.
Unconstitutional Conditions
1. Gov cannot condition a benefit on the requirement that a person forgo a constitutional right → this is a very
arbitrary and case by case standard
a) Rust v. Sullivan: gov could condition money on doctors not talking about abortion opportunities
with clients BUT
b) Legal Services v. Velazquez: gov could not limit legal aid funding on a prohibition on attorneys
from challenging constitutionality of welfare laws
c) Agency for International Development v. Alliance for Open Society International:
(1) SCOTUS held that the government requiring as a condition of federal funding that
organizations adopt a policy expressing opposition to prostitution and human trafficking
was unconstitutional as applied
(a) Unconstitutional condition and does not support the idea of illegality → giving aid
to these groups is not a clear and imminent danger
Government Pressures
1. Cases are mixed as to whether it is an infringement of speech for the gov to place pressures on individuals
or entities to refrain from 1A behavior without actually prohibiting or penalizing speech in any way
2. If gov “encourages” entities to refrain from expression, is that unconstitutional? → case by case.
Unprotected and Less Protected Speech
1. Generally:
a) Content-based distinctions within categories of unprotected speech must meet SS
b) Unprotected speech that has a content-neutral regulation → Intermediate Scrutiny
2. Incitement of Illegal Activity
a) Brandenburg Test
(1) Advocacy can be punish only if there is likelihood of imminent illegal conduct and the
speech is directed to causing imminent illegality
(2) A conviction is upheld only if there is:
(a) imminent harm,
(b) a likelihood of producing illegal action, and
(c) an intent to cause imminent illegality
(3) Mere advocacy is not enough
3. Fighting Words
a) Not protected speech but it is nearly impossible to show a fighting word
b) Very utterance is likely to cause a violent response
c) Test:
(1) Have to show
(a) Likelihood to lead to violent response;
(b) Not vague/overbroad; and
(c) Not content-based restriction.
(2) General expressions are not enough
(3) Gov may not regulate use based on hostility – or favoritism – towards the underlying
message expressed → content-based
(4) May be times where words are enough → must meet SS
d) Hostile Audience
(1) Police have obligation to protect audience rather than lock up and restrict speakers
(2) Need imminent danger, and there is an obligation on society to protect speakers
e) Racist Speech:
(1) Brandenburg test
(a) Largely racist speech is allowed unless imminence
(b) Statutes may be overruled if they do not contain an intent portion (EX: cross
burning statutes must have intent to intimidate in order to be constitutional. See
VA v. Black)
(2) Can enhance sentences though
4. Obscene Speech
a) To decide if a regulation is permissible, ask:
(1) Whether the average person, applying contemporary community standards, would find that
the work, taken as a whole, appeals to the prurient interest;
(a) That specific location’s current standards
(2) Whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and
(a) Law must actually list what it is in order to be narrowly tailored
(3) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific
value.
(a) Objective, national standard
b) Can use RTPM restrictions
c) Child Pornography:
(1) Gov may prohibit the exhibition, sale, or distribution of child pornography even if it does
not meet the test for obscenity BUT for material to be considered child porn, children must
be used in its production
(2) Can you zone against pornography?
(a) Case by case
(3) Private Possession
(a) Cannot search someone's home to see if they have general obscene materials but
you can check their mail
(i)
But you can search for child pornography. See Osborne v. OH.
5. Indecent Speech
a) Profanity and “Indecent” Speech
(1) Such language is generally protected by 1A (See Cohen v. CA)
(a) Such restrictions are content-based on media platforms
(b) Court has adopted a medium-by-medium approach
(c) Broadcasting receives the most limited 1A protection → you can ban it on radio
and cable but likely not streaming or blogs
b) Generally:
(1) Can ban obscene but not “indecent”
(a) Obscene → no protection
(b) Indecent → only restrict on TV and radio otherwise overly broad
6. Violent Speech
a) Court has twice rejected an exception for violent speech and made clear its reluctance to create new
categories of unprotected speech → content-based restriction
7. Commercial Speech
a) Test: (See Central Hudson Gas.)
(1) Does the speech advertise illegal activities or constitute false or deceptive advertising that
is unprotected by 1A?
(a) Commercial speech must at least concern lawful activity and not be misleading
(2) Is the asserted government interest substantial?
(3) Does the regulation directly advance gov interest asserted
(4) Is the regulation of speech no more extensive than necessary to achieve the gov’s interest?
(a) Intermediate scrutiny
b) What can be regulated?
(1) Illegal activities;
(2) False and misleading;
(a) EX: attorneys soliciting in person is deceptive and can be prohibited; solicitation
by accountants or doctors cannot be prohibited
(3) Risk of deception;
(4) Prices
(5) What about commercial speech regulation for social purposes?
(a) Must meet intermediate scrutiny too
(i)
Cannot have law prohibiting putting amount of alc on beer cans
(ii)
Tobacco: no ads within 1,000 feet of school or playground → not political
speech; only commercial speech → meets intermediate scrutiny but not
Central Hudson test because it is not a reasonable fit
8. Defamation
a) Type of political speech
b) Test (See NYT v. Sullivan): Can recover for defamation IF
(1) Public officials and figures;
(a) Rosenblatt v. Baer: public officials are at the very least those among the hierarchy
of government employees who have, or appear to the public to have, substantial
responsibility for or control over the conduct of governmental affairs
(i)
Includes those running for public office
(b) Public figures: someone who thrusts themselves into the public sphere
(i)
Actors, singers, etc.
(ii)
Same standard as public official
(2) Official conduct
(a) Later also conduct of public concern
(3) Plaintiff must prove by clear and convincing evidence;
(a) Plaintiff has burden of proof
(4) Plaintiff must prove falsity of the statement; and
(a) Does not include opinions → only facts
(i)
Focus is on whether the statement contains, directly or by implication,
factual statements
(5) Plaintiff must prove actual malice
(a) There must have been deliberate (knowledge) or reckless falsification (disregard)
(b) Opinions are always protected
c) Private Figures:
(1) If the plaintiff is a private figure and the matter is of public concern, a state can allow a
plaintiff to recover compensatory damages if there is proof that the statements were false
and of negligence by the defendant
(2) Must show either negligence or more
9. IIED
a) NYT v. Sullivan Test applies:
(1) Public officials: must show that the publication contains a false statement of fact which
was made with "actual malice," i.e., with knowledge that the statement was false or with
reckless disregard as to whether or not it was true.
(2) Private figure: normal tort law applies but there must be some fault (negligence) and no
punitive damages apply
J. Conduct as Speech
1. Conduct as “Pure Speech” → SS → symbol itself is message
a) Burning flag
2. Conduct as an item with other purposes than just message → Intermediate scrutiny
a) If there is some reason related to a rule or restriction that is unrelated to speech issues
3. Test: government regulation on conduct as speech is sufficiently justified if: (See US v. O’Brien)
a) It is within the constitutional power of the Government;
b) It furthers an important or substantial governmental interest;
c) The governmental interest is unrelated to the suppression of free expression; and
d) The incidental restriction on alleged First Amendment freedoms is no greater than is essential to
the furtherance of that interest.
K. Spending Money as Political Speech
1. Gov cannot limit expenditures at all (they are pure speech → SS applies to expenditures).
2. Contributions can be limited to an individual candidate.
a) If you can show coordination between PAC and candidate and the spending of money =
contribution and thus can be limited.
3. The only time there can be a compelling gov interest in restricting campaign contributions is in quid pro
quo corruption (See Citizens United)
a) Have to prove specific intent in telling a specific candidate/officeholder to do something specific
by a donor
(1) Super high bar and almost impossible to prove.
L. Fora of Speech
1. Types
a) Traditional Public Forums – Places which by long tradition or by government fiat have been
devoted to assembly and debate (public streets and parks) → “quintessential public forums” → 1A
SS applies
(1) Government may NOT prohibit all communicative activity
(2) Gov may regulate speech if only the follow are met:
(a) Regulation is content-neutral; if content-based, it must meet SS;
(b) It must be a reasonable time, place, manner restriction that serves an important gov
interest and leave open adequate alternative places for speech;
(i)
Reasonable TPM restrictions are often approved provided that they are
justified without regard to the content of the regulated speech, that they
serve a significant gov interest, and that they leave open ample alternative
channels for communication
(c) Licensing or permits for these must:
(i)
serve an important purpose,
(ii)
give clear criteria to the licensing authority that leave almost no discretion,
and
(iii)
V.
provide procedural safeguards such as a requirement for prompt
determination of license requests and judicial review of license denials;
and
(d) The regulation must be narrowly tailored to achieve the gov purpose but does not
need to be the least restrictive method available
b) Designated Public Forums – Public property which the state has voluntarily opened for use by the
public as a place for expressive activity (colleges and universities providing $ for student orgs, so
1A applies)
(1) Although these areas are not required to indefinitely retain the open character of the
facility, as long as it does so, it is bound by the same standards as apply in a traditional
public forum → SS // 1A applies in full force
c) Limited Public/Nonpublic Forums – Public property which is not by tradition or designation a
forum for public communication →
(1) State may reserve forum so long as it is reasonable and viewpoint-neutral
(2) Nonpublic: gov property that’s treated as private property essentially
(3) Types:
(a) Prisons: general test is that the gov may restrict and punish the speech of prisoners
if the action is reasonably related to a legitimate penological interest
(i)
Inmate can protest not getting mail; prison is allowed to open their mail
before they get it because it relates to prison safety
(a) BUT prisons cannot restrict lewd or obscene messages written by
prisoners because it does not relate to penological interest
(b) Schools:
(i)
Mahanoy: must have penological interest
(a) TEST: three categories of student speech that can be regulated:
(i)
“Indecent,” “lewd,” or “vulgar” speech uttered during a
school assembly on school grounds;
(ii)
Speech, uttered during a class trip, that promotes “illegal
drug use”;
(iii)
Speech that others may reasonably perceive as “bearing
the imprimatur of the school” such as that appearing in a
school-sponsored newspaper
(c) Military bases (nonpublic)
(d) Post offices and their sidewalks
(e) Airport terminals (nonpublic)
(f) Government employees
(i)
Protected if
(a) Matter of public concern;
(b) Must weigh → speech rights must not be outweighed by needs of
government → not SS (mere weighing)
2. Private Property
a) No right to use private property owned by others for speech (ex: malls)
(1) No state action
Freedom of Association
A. Laws Prohibiting and Punishing Membership
1. Gov may punish membership only if it proves that:
a) a person actively affiliated with a group,
b) knows of its illegal objectives, and
c) has the specific intent to further those objectives
B. Laws Requiring Disclosure of Membership
1. Gov may require disclosure of membership, where disclosure will chill association, only if it meets SS
2. Campaign Finance Disclosure
VI.
VII.
a) Court has generally upheld requirement of campaign finance disclosures because of the gov’s
compelling interest in stopping corruption, except where there is reason to believe that the
disclosure will chill contributions to a minor party or candidate
(1) “Exacting scrutiny” used → something between intermediate and strict scrutiny
3. Compelling Association
a) Cannot force non-union members to pay
(1) Cannot have compelled association just like you can’t have compelled speech
(2) COMPELLED SPEECH CLAIM ALONG WITH FREE ASSOCIATION CLAIM
b) Public universities can charge its students an activity fee used to fund a program to facilitate
extracurricular student speech is the program is viewpoint neutral
4. Law Prohibiting Discrimiantion
a) SCOTUS has held that the compelling interest in stopping discrimination justifies interfereing with
such associational freedoms → THIS IS OFTEN WITH DP AND EPC CLAIMS
(1) Court has indicated that the freedom of association would protect a right to discriminate
only if it is intimate association or where the discrimination is integral to express activity
Freedom of Press
A. There is no “freedom of press” ONLY freedom of speech which includes freedom of press
B. Taxes on the Press
1. Taxes that single out the press are unconstitutional BUT the press can be required to pay general taxes
applicable to all businesses
C. Application of General Regulatory Laws
1. SCOTUS has consistently refused to find that the protection of freedom of press entitles it to exemptions
from general regulatory laws
D. Keeping Reporters’ Sources and Secrets Confidential
1. No right to press confidentiality in Constitution
E. Laws Requiring that the Media Make Access Available
1. SCOTUS has found that 1A is not violated by such requirements as applied to the broadcast media but has
invalidated these laws when applied to the print media
F. Right of Access to Gov Places and Papers
1. Court has held that the public has a right of access to court proceedings but has not required a preferred
right of access for the press
a) Court has held that the public doesn't have a right of access to prison inmates and facilities
Free Exercise
A. Fight between FE and EC → accomodation v. neutrality
B. Religion is a sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the
orthodox belief in God of one who clearly qualifies for the exemption
C. Free Exercise Test: → See Employment Division v. Smith.
1. Valid and neutral laws of general applicability must only meet RB
a) Valid and neutral of general applicability: there is no discrimiantion against a religion or the idea of
religion in general
b) If the law is not of valid and neutral of general applicability, SS applies
2. After Smith, Congress passed the Religious Freedom Restoration Act (RFRA) → made SS the test for
Free Exercise claims for federal claims
a) Application of RFRA to the states was barred by the Court by interfering with states’ rights under
10A
(1) RFRA can apply to federal gov but not states
(2) RLUIPA
D. Ministerial Exception
1. Religious institutions have the right to fire ministerial positions without fear of FE Clause claims →
includes teachers in religious schools → Does not have to be a “minister”
a) Rather any position with an important responsibility in educating or teaching the tenets of the faith
suffices
VIII.
2. Thus: Ministerial positions are not protected by statutory protections; only constitutional protections
(cannot claim age, disability, child abuse, opportunity of housing, abstenation discrimination but CAN
claim race, gender, etc).
E. COVID Restrictions
1. Smith test applies → valid and neutral of general applicability; if not, strict scrutiny
a) Government has the burden to establish that the challenged law satisfies SS.
(1) Gov must show that the secular activities are ALWAYS less risky//religious activities
are ALWAYS more risky in order to allow a restriction.
2. Denial of Funding to Religious Entities
a) No-aid provisions are unconstitutional under Free Exercise → Blaine Amendments
(1) Strict scrutiny applies
(a) No-aid provisions are not narrowly tailored
Establishment Clause
A. Gov may not promote or affiliate itself with any religious doctrine or organization, may not discriminate among
persons on the basis of their religious beliefs and practices, may not delegate a governmental power to a religious
institution, and may not involve itself too deeply in such an institution’s affairs
B. Lemon Test:
1. Statute must have a secular legislative purpose
a) Does not have to be neutral; just secular
(1) Moment of silence for prayer → good
(2) Require teaching of creationism → bad
2. Its principal and primary effect must be one that neither advances nor inhibits religion
a) Must be neutral in regard to religion
(1) Is there neutrality or coercion? → THIS IS USED
3. Statute must not foster “an excessive gov entanglement with religion”
a) Must examine the character and purposes of the institutions that are benefited, the nature of the aid
that the state provides, and the resulting relationship between the gov and the religious authority
b) NOT really used anymore
C. Religious speech = political speech → SS applies
1. Student speech → balance EC and FE
2. SCOTUS has consistently held that excluding religious speech on gov property or with gov funds violates
1A’s free speech because it is an impermissible content-based restriction of expression → fails SS
3. Religious Group Access School Facilities
a) Cannot restrict or prohibit religious groups from using school facilities
b) Schools are a DESIGNATED PUBLIC FORUM AFTER HOURS FOR RELIGIOUS ORGS
4. Student Religious Groups’ Receipt of Gov Funds
a) Cannot prohibit funds to religious student orgs → if you give money, it has to be given equally to
religious groups and non religious groups that seek it
(1) Denying funds to religious student groups is an impermissible content-based
discrimination against religious speech
D. When can religion become part of gov activities?
1. Schools
a) Release Time at School
(1) Students being granted special release time for religious instruction
(a) Impermissible if the religious teaching takes place on school premises but allowed
if the students were released to receive religious instruction elsewhere
b) Public schools cannot have school-led prayers (Engel v. Vitale).
c) Clergy-delivered prayers at public school graduations are unconstitutional (Lee v. Weisman)
d) Student-led prayer at public school functions are unconstitutional.
e) Curricular Decisions
(1) Court has declared unconstitutional gov decision concerning the curriculum that were
motivated by religious purpose
(a) Largely regarding teaching evolution v. creationism
(i)
Cannot prohibit teaching of evolution whereas teaching creationism is
promoting a religious principle
2. Gov Generally
a) Legislatures can use prayers to open meetings
b) Symbols on Gov Property
(1) Must meet Lemon test OR new test: is there coercion and is it neutral (look to purpose)
(a) See McCreary County v. ACLU; Van Orden v. Perry.
(b) Passage of time creates a strong presumption of constitutionality.
(2) Any symbol that has historical significance will be accepted and able to be displayed by
gov → burden of proof on party trying to show coercion/not neutral
(a) If you can show a religious symbol is secular in that context, it is okay
(i)
Cross for graves of soldiers
E. When can gov give aid to religion?
1. TEST: Where a gov aid program is neutral with respect to religion, and provides assistance directly
to a broad class of citizens who, in turn, direct gov aid to religious schools wholly as a result of their
own genuine and independent private choice, the program is not readily subject to challenge under
the EC.
a) See Zelman.
(1) Have to show the gov is actually endorsing or advancing religion in order to violate EC.
b) Gov can fund parochial and public schools → vouchers