Jeffrey Kwastel
Constitutional Law II:
Spring 2002
Professor Wells
I) THE BILL OF RIGHTS AND THE POST-CIVIL WAR AMENDMENTS—
“FUNDAMENTAL” RIGHTS AND THE “INCORPORATION” DISPUTE
A)
Abstract Introductory Thoughts
1. Constitutional system constrains what the ruler can do.
2. We have a written constitution, but there are debates about whether part of it is
unwritten.
i.
Debates, such as that in Marbury v. Madison (where Marshall criticizes
Great Britain) show the possibilities of having unwritten constitutions).
ii.
Marbury holds that the constitution is part of the law (as opposed to an
extralegal document), which is where we get judicial review.
3. Society is made up of autotomous individuals with their own goals—purpose of
government isn’t to pursue common interests. It’s to allow people to pursue their own
interests as they determined it was important to them.
B)
i.
Going to have conflicts amongst guaranteed rights.
ii.
Method of resolving constitutional cases are similar to other kinds
(although more of an emphasis on precedence since if Court gets it wrong
there’s no one to correct it).
Pre-Civil War
1. Bill of rights only applied to the federal government not to accord citizens of the U.S.
protection from state government actions. Ex: Barron v. Mayor and City Council of
Baltimore.
i.
Facts:  had a wharf in Baltimore harbor, sued city because diverted
streams, which caused damage to the wharf. He said the city did an
inverse condemnation by doing something that destroyed the value of his
property. Wants compensation under the 5th.
ii.
Holding: Marshall holds that the limitations expressed in the federal
Constitution are applicable only to the federal government. Had the
framers intended them to apply to the state governments, they would have
expressed that intention
2. Should these rights only limit the federal government?
C)
i.
Only 1st and 7th have any language about being aimed at federal
government.
ii.
Context in which Bill of Rights was adopted was that people insisted there
be more restraints on the national government.
iii.
If you don’t like a given state you can move more easily than if you don’t
like the entire US (argument that rights should be on the state rather than
national level).
Purpose and Impact of the Post-Civil War Amendments
1. Narrow interpretation of the amendments: Civil War amendments were held to not
grant US citizens broad protections from the actions of state governments. Ex: Slaughter
House Cases.
i.
Facts: LA passed a law giving a monopoly to one slaughter house
company, forced all competing slaughterhouses to close. They felt it was
in violation of their federal constitutional rights.  appealed on grounds
that 1) the 13th amendment provides that neither slavery nor involuntary
slavery shall exist in the US, and that provision applies to servitudes on
property, and this measure was such a servitude on property; 2) 14th
amendment prevents citizens from being deprived of life, liberty and
property without dp, and it abridges the privileges and immunities clause
of that amendment.
ii.
Holding: Court affirms judgment for LA. 13th is specifically concerned
with freedom of the salve race (or its equivilent like Mexican peonage).
Majority doesn’t seem to care what privilege  relies on because they are
going to completely reject it (only meant to protect PI of US citizenship).
Court only going to give basic purpose to 14th (of eradicating slavery),
won’t go further. So, for now, 14th doesn’t incorporate bill of rights to the
states.
2. Meaning of PI then: one thing that did survive was right to travel from state to
another without obstacles imposed by the states.
i.
Ex: Saenz v. Roe (1999); CA had higher welfare payments than other
states, wanted to make it disadvantageous to go there, sof first 12 months
welfare payments would be calculated as if it was the state where the
person came from. Court said this hindered right to travel from one state
to another, violated PI.
D)
Due Process and the “Incorporation” Controversey
1. After the civil war the Court began to apply the provisions of the first 9 amendments
to the states via incorporation. Have to respect citizens and their immunities, can’t
deprive of life, liberty, or property without dp, can’t deny equal protection.
2. Given the state of pi in the late 19th and 20th centuries, lawyers who wanted to expand
were left with the dp clause of the 14th (couldn’t use 13th or 15th).
i.
Notions of dp go back to Magna Charta. Historical pedigree for notion of
substantive restraints on government through notion of the law of the
land—due process.
3. Rights gradually incorporated via the 14th amendment.
i.
Palko: Murder conviction. 5th says can’t try someone twice for the same
offense. That gets incorporated to the states. Black says that the way you
deicde whether to incorporate is whether it fits into the “matrix, the
indispensable condition, of nearly every other form of [freedom]/”
ii.
Almost everything has been incorporated. Exceptions include some
“unimportant” things like 3rd, and others like the grand jury portion of the
5th.
iii.
Black wanted to incorporate everything, said it wouldn’t restrain the
courts, that the bill of rights just “cabins” them better. Frankfurter said
those who use language wouldn’t recognize the 14th as a “cover.”
II. SUBSTANTIVE DUE PROCESS: RISE, DECLINE, REVIVAL
A)
Distinguishing substance from procedure
1. Procedural rights: rights that take it as a given that the state may act intimately against
someone (ie can imprison if prove certain things).
i.
Premise is that its okay to do these things as long as the process is
appropriate.
ii.
Issue is whether or not the correct process has been used.
iii.
General aims are to achieve accuracy and fairness.
iv.
Core values are notice and the chance to be heard.
2. Substantive rights: give a shield or immunity no matter what process is used.
i.
No matter how fair or accurate the process, state can’t do it. Ex: can’t put
someone in jail for political speech.
ii.
Due process also consists of substantive limits on what the state can do.
3. Written v. unwritten: should we have stuff that’s unwritten in the constitution?
B)
i.
Calder v. Bull: Chase says yes, should strike down legislation that deviates
from the social compact. Casebook says this reflects a natural law
tradition.
ii.
9th amendment seems to support idea that there are things that aren’t
written down (why else put this in).
iii.
Justice Iredell (454): problem is there’s no fixed standard, don’t want
judges substituting their judgment for the legislature because the
legislature has democratic legitimacy.
Background to Lochner
1. Court tended to give a narrow reading of pi via the Slaughterhouse cases.
i.
Court was sympathetic to business interests, had increasing
industrialization and Republican administrations appointing conservative
judges.
2. Efforts by state legislatures to regulate state enterprises:
C)
i.
Santa Cara County v. Southern Pac. Railway, where Court said
corporations as well as people can use the 14th (doesn’t seems consistent
with Slaughterhouse where they said it was just about slavery).
ii.
Allgeyer v. LA: Law said person had to buy insurance from Lousiana
company, but the person had already bought it from a NY company.
Court gives a broad definition of 14th amendment liberty (as opposed to
just being procedural), in terms of being able to lead life the way you want
to. Said need that right to have substantive economic rights protected.
Lochner and judicial intervention in economic regulation—Lochner v. NY (1905)
1. Facts: Lochner, , was convicted of permitting a bakery employee to work for him
more than the statutory maximum of 60 hours per week.  challenges the law as a
violation of the liberty to contract protected by the 14th amendment. Court strikes down
the law.
2. Holding: (459) Have to show that a law is a fair and reasonable use of police power,
which means have to show a reasonable connection between the means and the ends.
State’s claim of connection goes too far. Individual liberties have to impose some
restraints on police powers.
3. Dissents:
D)
i.
Holmes: Constitution is not supposed to embody a particular ecnomic
theory, legislature should be able to do what it pleases, with a caveat on
463 that if a rational man would find that a statute infringed on funamental
principles it can be struck down.
ii.
Harlan: Evidence showing bakers work is some of the hardest imaginable.
Agrees with basic principal that freedom of contract get basic protection,
but the state can interefere if there is good reason (which he feels there is
here).
Decline of judicial intervention in economic regulation
1. Due Process: After Lochner, the Court changed its earlier view and began to apply
less strict scrutiny to economic regulation. Instead, it granted deference to legislative
determination of need and reasonableness.
2. No area outside the power of the state to regulate: Nebbia v. NY
i.
Facts: New York () passed a law establishing minimum and maximum
retail prices for milk. The purpose was to aid the dairy industry, which
was in a desperate situation because the prices received by farmers for
milk were below the cost of production. Nebbia, , a retail grocer, sold
milk below the minimum price and was convicted for violating the statute.
 challenges the statute as a violation of due process.
ii.
Holding: A state can strictly control retail prices, even where such control
inhibits the use of private property and the making of contracts. Court
must find 1) the law has a reasonable relationship to a proper legislative
purpose (not arbitrary or discriminatory), and 2) No area outside the
province of state regulation for police power purposes, including the direct
regulation of prices.
3. Statutes must have a reasonable relationship to the state’s interests: West Coast Hotel
v. Parrish.
i.
Facts: Court upheld a minimum wage law for women, despite challenge
that it took away liberty by limiting freedom of contract.
ii.
Holding: State can interfere if it has good reason to do so. Here, the
public interest includes health of women from unscrupulous employers
(doesn’t seem consistent with Lochner where there were also health
concerns).
4. Further retreat from Lochner: Carolene Products
i.
Facts: Filled milk case. Not good for milk producers, so theyg ot a
federal law passed against it. Court upheld the law. Seems like an
example of broad deference, presumption that legislature made a good
decision.
ii.
Footnote 4: Some areas in which Court won’t have an assumption of
deference, specifically if 1) the law interfers with prohibitions in the bill of
rights, 2) if the law restricts the political processes, or 3) if the law affects
discreet and insular minorities (later becomes a signal that justices will
intervene where they think it’s really important).
5. Limits of noninternvention: 14th amendment doesn’t prohibit all state business
regulation that is not essential and directly related to the harm it intends to cure-Williamson v. Lee Optical.
E)
i.
Facts: Lee Optical () challenged a state law that, among other things,
held that could not grind lenses without a prescription from an
opthomologist.
ii.
Court now more deferential: This case is different than West Coast Hotel
where Court engaged in a genuine effort to understand legislation, this is
farther along the scale of deference. Since then, Court hasn’t invalidated
any economic regulation on substantive due process grounds. Some think
it was a changing view about the role of government by the court (great
depression, FDR, etc).
Revival of substantive due process for noneconomic liberties
1. Introduction: Although substantive due process no longer imposes any serious
restraints on economic regulations, the Court has revived the notion as a means of
protecting certain fundamental personal rights not specifically enumerated in the
Constitution, including the right of privacy.
2. General familial rights: Contraception—Griswold v. Connecticut.
i.
Facts: Griswold and an associate, s, supplied information and medical
advice to married persons on the use of contraceptives. They were
convicted as accessories to the crime of using contraceptives in violation
of a Connecticut statute prohibiting all such use. The conviction was
upheld in all the state courts.
ii.
Holding: There is a constitutional right of privacy which prohibits states
from making use of contraceptives by a married couple a crime. Court
applies substantive due process to find the law violates the due process
clause. Douglas holds that the guarantees in the amendments create zones
of privacy. No specific guarantee of marital privacy, but create
“penumberas.”
iii.
Harlan concurrence: Don’t need to rely on radiation from other rights.
Can generate these rights starting with the due process clause and looking
at history and tradition (marriage respected there). Therefore, state has to
make a very persuasive argument about the regulation, which they have
not done.
iv.
Dissent: Black says that should make constitutional law without a
foundation. The Court is wrong because it can’t identify a specific
provision of the bill of rights. No less dangerous to strike something down
on personal rights as opposed to economic.
3. Economic v. Noneconomic basis for due process:
i.
Could argue that protections for contracts is stronger, since Article I, §10
specifically forbids states from impairing obligations of contracts.
ii.
Could also read 9th as justifying courts in identifying fundamental values
iii.
Footnote 4 of Carolene Products is the overall standard for intervention.
Can intervene to protect discreet and insular minorities.
4. Abortion—Roe v. Wade: A state may not constitutionally make it a crime to procure
an abortion except to save the mother’s life.
i.
Facts: Roe, , unmarried a pregnant, sought declaratory and injunctive
relief against Wade, , a county DA, to prevent enforcement of Texas
criminal abortion statutes. The DC invalidated the TX statute, and the
Court granted review.
ii.
Holding:  claimed 14th amendment right of privacy, and  claimed
compelling state interest. The Court held that the right of privacy
generally relates to marriage, procreation, contraception, and includes the
abortion decision. The state’s interest in prenatal life cannot be based on
the fetus’s right to life, for a fetus cannot be considered a “person” in the
constitutional sense. Unborn children have never been recognized in any
area of the law as persons. However, the preganant woman cannot be
isolated in her privacy. The state may decide that at some point in time
another interest, that of health of the mother or that of potential human
life, becomes significantly involved. The woman’s right of privacy must
be measured accordingly.
iii.
Dissent (Rehnquist): An abortion is not “private” in the ordinary use of
the word. 14th amendment liberty is not protected absolutely, only against
deprivations without due process of law. The traditional test is whether
the law has a rational relation to a valid state objective, but this test could
not justify Court’s outcome. Instead, the Court adopts the “compelling
state interest test,” which is more appropriate to a legislative judgment
than to a judicial one.
5. Permissible state regulation of abortion—Planned Parenthood of Southeastern PA v.
Casey.
i.
Facts: Statute required that woman receive information about the abortion
procedure and then wait 24 hours. At least 24 hours before procedure,
must be informed of gestational age, information about medical assistance
for birth, support, and adoption. A minor had to get consent of parents
(judicial bypass if the minor could show capable of giving consent or that
abortion in her interests).
ii.
Holding: 3 in the middle form the plurality decision. Affirms Roe
insomuch as can’t forbid previability abortions. This case probably stands
for the proposition that the state can interfere all throughout the pregnancy
for its interests in promoting unborn life. Does away with first trimester
idea; rejects trimester framework. Instead puts in an “undue burden”
standard (state can’t impose); Courts calls it an unconstitutional burden.
The state is entitled to promote other choices to abortion, as long as it
doesn’t place this undue burden on that choice. Part II rewrites part of
Roe that justifies right to abortion as part of 14th amendment liberty. In
dissent, Blackum says undue burden standard is too manipulable.
iii.
Role of precedent: Court discusses that reservations it may have are
outweighed by precedent. Generally, precedent has a weaker force in
constitutional law than in other areas. When considering precedent have
to decide costs and benefits of reaffirming or overturning. If overrule can
get a better rule. But can also disappoint people’s reliance, both in
commercial sense, and to the extent that the Court would look like it was
just responding to the politics of the day. Minoirty says should correct the
mistake, like the Court did between Lochner and West Coast Hotel.
Plurality says a lot was learned between those two decisions, which didn’t
happen here.
6. Substantive Due Process Regarding Family relationships:
i.
A state cannot prevent marriages between persons solely because they are
of different races—Loving v. VA. State said there was equal protection
because it applied to all races. The Court held that racial classifications
are subject to the most rigid scrutiny, and that the state failed to show any
legitimate overriding purpose for the distinction (thus it cannot be upheld).
ii.
Marriage is a fundamental right, and significant interference with its
exercise cannot be upheld unless closely tailored to effectuate sufficiently
important state interests—Zablocki v. Redhail. State law said person
couldn’t get married until he proved that his support obligations for other
children had been met, so that new children wouldn’t become public
charges. Court struck down the law because it held the state could find
less intrusive ways to enforce support obligations.
iii.
These cases regulate the rights of classes of people to marry, which is why
it comes up under epc.
iv.
When the government intrudes on choices of family living arrangements,
the legitimacy of the government interests and the effectivness of the
regulations must be carefully examined—Moore v. City of East
Cleveland. Grandmother wanted to live with grandkids, but the grandkids
were cousins. Town had ordinance preventing this. Court overruled the
ordinance, found that substantive dp rights were violated, cites a tradition
of respect for the extended as well as nuclear family (Wells doesn’t find
that persuasive, states sometimes have the ability to regulate this type of
relationship).
Decision might be called into question by Troxel v. Granville, where
visitation rights for grandparents violated parents substantive due process
rights (Court holds that parents have the right to make child rearing and
bearing decisions, grounded in the 14th).
v.
Lower federal courts use substantive due process on a regular basis on
litigation about a number of matters. Ex: a person arrested for a crime but
not yet tried and in pretrial detention, not convicted so not being punished
under 8th, but the Court says they have substantive due process rights.
7. Sexuality—Bowers v. Hardwick: Rights that qualify for heightened judicial
protection are those fundamental liberties implicit in the concept of ordered liberty, such
that neither liberty nor justice would exist without them, and those that are deeply rooted
in the country’s history and tradition. A right to homosexual sodomy falls within neither
category.
i.
Facts: Hardwick, , was charged with committing sodomy with another
adult male in his bedroom, in violation of a state law forbidding sodomy
by any person.  sued, challenging the constitutionality of the statute as
applied to consensual sodomy.
ii.
Tradition and due process: Result seems to depend on the level of
generality (a more general rule can change more with the times). The
majority looks at it narrowly and says there is a tradition of crimalizing
this conduct. Minority says when you abstract away from the specifics see
there are a variety of traditions that are protected.
Situation is also seen in Michael H. v. Gerald D.  says he is the dad, can
probably show it with a blood test. Majority upholds CA law that
presumes the child is the legitimate product of the marriage. Wells says
need to change with the times, that tradition started when these blood tests
didn’t exist.
iii.
Limits on role of tradition:
1) Can try to limit strictly by the text: ex, 14th only applies to slavery.
2) Majority rules (Holmes).
3) Carolene products footnote: identify situations where the political
process has been harmed by majoritarian practice, or a discreet and
insular minority has been harmed.
8. Death—Washington v. Glucksburg. States may ban physicians and others from
giving individuals assistance in committing suicide.
i.
Court assumed persons’ 4th amendment rights included substantive right to
refuse food and water.
ii.
Court upheld the statute against a facial attack (going to uphold it unless
there are no ways to apply it). Could read it as invalid after Cruzan. Court
focuses on history, tradition, and state interests.
9. Limits on scope of substantive due process—DeShaney v. Winnebago
i.
Social services saw bruises where farther was battering the son. Court
said there was no claim against the state for failure to act.  relying on
personal liberty interest in freedom from personal harm.
ii.
Would be triggered if child was in state custody. But here the child was
with the father. Thus there was no actionable state action.
F)
The Scope of “liberty” and “property” procedural due process and the right to a
hearing.
1. Distingusihing substantive and procedural:
i.
Substantive: identifies situations in which the government may not act
against you in some way. Ex: may not criminalize previability abortions.
ii.
Procedural: domain in which government has authority to act against you
in some way (ex: putting you in prison m taking property as civil
damages). But there are procdural obligations that have to be fulfilled
first. It starts from the premise that there are steps that have to be taken to
ensure the accuracy of the actions taken, and the fairness to the person.
Typically means notice of reason and chance to be heard.
iii.
Type of process required will depend on the situation.
2. Procedural Due Process:
i.
Doctrine on procedure from Matthews v. Eldridge. 3 rules that are
supposed to be weighed on a case-by-case basis. Look at: 1) the private
interest that will be affected, 2) the risk of error of erroneous deprivation,
and 3) the government’s interest (ie the cost of doing more).
ii.
Only get when being deprived of life, liberty, or property
iii.
What does the Court mean by liberty?: Personal security from physical
and personal harm. The state can cause harm, but must follow procedures
to do it (generally not allowed to cause physical harm).
iv.
Wells thinks the Court is confused here between procedural rights
(protected by the possibility of a torts suit) and procedural protections
(point of which is to get accuracy).
3. State law can create a liberty interest:
i.
Ex: Hewitt v. Holms. Created a state liberty interest in being in the
general population instead of administrative segregation. When do that,
have procedural protections like Matthews v. Eldridge. Court hasn’t
touched the question about whether this procedural protection could give
rise to a substantive due process claim.
4. Government can create property rights: As compared to property would be that
recognized by common law, Ex makes payments in money, or of other sort. 2 broad
distinctions where this happens:
i.
Doesn’t create any legitimate expectation that person will keep the status
that provides the money.
ii.
Does create such an expectation through statute or practice. Ex: welfare
systems where 1) statute sets up entitlement so if government wants to
stop giving money they have to set up procedural protections, or 2)
Congress prospectively takes away entitlement, so that now people don’t
have a property claim in welfare benefits. Even where there is such a
right, the circuts are divided on whether it creates a substantive right to the
entitlement, or whether it just creates process rights (ex fired deputy
claims that although there was a hearing, firing was still unjustified
because he can produce witnesses that say he never drinks, that it was a
set-up).
5. Court has declined to create various possible liberty interests, both procedural and
substantive, and is undecided on others:
i.
Ex: Paul v. David. Court says that reputation standing alone is not a part
of liberty that is protected by dp. Police had flyer that identified a person
as a shoplifter. Person beings a lawsuit. No procedural right to assure the
accuracy or fairness. More significant here, no substantive right not to be
defamed. Would have a common law tort claim if it was incorrect, but it
would be hard to prosecute it due to state officials having a pretty strong
privilege.
ii.
Stigma plus doctrine: if defamation were accompanied by something else
like the loss of a job. Together they would be a deprivation of 14th
amendment liberty.
iii.
If the state has an administrative regulation that a person can only be fired
if certain conditions are met, but if those conditions are met don’t have
any sort of right to a hearing—in Arnett Rehnquist said had to take the
bitter with the sweet. But in Cleveland Board White said property right
was a substantive thing and what you have to give a person before taking
it is the procedural.
G)
Constitutional safeguards of economic rights: The Takings Clause; the Contracts
Clause.
1. Distinguishing substantive v. procedural concerns when government takes property.
i.
Takings is substantive. 5th amendment takings was one of the first rights
Court incorporated through the 14th. Inverse condemnations (taking
occurs through government regulation) litigated as takings.
ii.
If its official policy its due process, and this procedural. Ex government
wants to take your land for a firehouse but can’t decide what its worth. Its
got to have a condemnation hearing.
2. Contracts clause: Article I, §10 provides that “no state shall pass any law impairing
the obligation of contracts.” Basically two phases (teeth in first, less in second).
i.
In the 19th century it was a major restraint on state economic activity.
Passed in wake of revolution where there were a lot of debtors. Was
focused on limitations of state interference with current contracts (Fletcher
v. Peck) as opposed to regulating future obligations (Ogden v. Sanders).
State could still regulate remedies.
ii.
Deference to state power—Home Building & Loan Association v.
Blasidell (1934). MN passed a law that permitted extensions of the period
of redemption from foreclosure and sale of mortgaged real property. The
Court said the state could alter this existing contractural obligation in
order to respond to the emergency conditions. Such emergency justified
the use of existing police power, and the relief afforded met the
requirement of being appropriate to the emergency. The temporary nature
of the relief did not destroy the contractural obligations involved. The
Court has been upholding these cases ever since.
iii.
Thus seems like the Contracts Clause no longer is a constraining force on
legislative efforts to change purely private contracts. Court seems to feel
Clause is more of a constraint on contracts involving government (selfdealing) than purely private contracts (US Trust CO v. NJ).
III.
EQUAL PROTECTION
A)
Overview
1. History: Slaughterhouse Cases: Court said 13th, 14th, and 15th amendments were
meant to prevent racial discrimination.
2. Court’s approach to the EPC: Court took and continues to hold that distinctions made
by the state will survive scrutiny as long as they have a rational basis.
i.
Economic and social legislation has to have a rational basis to be
constitutional.
ii.
Economic and social legislation will have an “easy time” unless it
implicates something for which people need special protection.
3. Structural difference between arguments using epc and substantive dp doctrines
i.
Focus of substantive due process challenges is whether or not the state has
the power to inflict a given injury. It doesn’t involve the distinctions that
government makes between classes of people.
ii.
EPC looks at distinctions that government makes between classes of
people. Ex: Loving. Court wasn’t saying no one could marry, was saying
couldn’t have interracial marriages.
4. When the government makes distinctions, lawyers will often make epc their focus:
i.
Court has been more willing to interfere under the epc banner than dp.
ii.
Argument that there was been reverse incoroporation from the 14th to the
federal government.
B)
Scrutiny of means in economic regulations: The Rationality Requirement—
Limited Judicial Scrutiny Under the Traditional Standards.
1. The early equal protection test focused on the “reasonable classification” test. It was
not typically interested in restraining legislative objectives. Ex: Railway Express Agency
v. New York.
i.
Facts: NYC statute that said you could advertise your company on your
truck, just no anyone else’s. Railway Express was a delivery service that
advertised other people’s businesses on its trucks. Challenged this statute
on epc grounds that it made irrational distinctions.
ii.
Holding: Court ruled that a local business regulation could make
distinctions based on practical considerations but which are theortically
discriminatory. Government can take it one step at a time. Court
speculates there could have been numerous plausible aims for this
regulation, but it wasn’t necessary to identify the actual purpose.
2. Warren court tended to defer to legislatures on matters of business regulation. Ex:
McGowan v. Maryland (if you could think of a rational basis those facts will be
sufficient).
3. In the early 1970s the Burger Court applied the rationality test to invalidate various
laws. Ex: US Department of Agriculture v. Moreno.
i.
Provision of federal food stamp program limiting assistance to households
of related persons was held to have no rational basis.
ii.
But if purpose was to help eliminate hunger why can’t we go one step at a
time and help families first. So its not really a rational basis test as it is
about deciding that one form of discrimination is worse than another.
4. Modern approach: The Court has recognized the need to defer to legislative findings
and policy decisions. However, equal protection analysis requires a rational basis for
statutory disparate treatment. The conflict between these 2 notions has forced the Court
to undertake some intricate line-drawing.
C)
i.
Extent of deference accorded: US Railroad Retirement Board v. Fritz.
Statutes were aimed at saving the railroad retirement system from going
bankrupt. Workers who were still in and working got better treatment
than those who had been out for a while. The later group challenged the
statute on epc grounds. Court concludes there were plausible reasons for
the distinctions that Congress drew so it was okay. Brennan in dissent
says actual purpose is what matters, rather than the post-justifications
offered.
ii.
Inferred Congressional intent: Schweiker v. Wilson. Congress gives
comfort allowances to needy disabled patients in public institutions if the
institution received medicad payments.  challenged saying the
amendment bore no relation to the purpose of the Social Security program.
Court first held that the statute didn’t discriminate on the basis of mental
illness, and then inferred that the congressional purpose must have been to
avoid spending federal resources on persons whose needs were being
taken care of by the state. In dissent, Powell and 3 others said should use
more demanding scrutiny than a post hoc hypothesis of legislative
purpose.
iii.
Use of rational basis standard: Logan v. Zimmerman Brush. In an unusual
opinion, the Court held that a state scheme that permitted a hearing on an
employment discrimination complaint only if processed within 120 days
violated epc because the limitation was not rationally related to any
legitimate government objective. So even someone who likes rational
scrutiny will still have times where a measure seems arbitrary.
iv.
Acts of local officials: Willowbrook v. Olech.  wanted to connect to the
water supply, officials required a bigger easement for her than for others.
Court said it was irrational unless they could provide a reason. Here it
was the act of an official and lawyers are more able to demand an
explanation of why that person acted in that way. This case can be useful
for that type of epc claim.
Suspect Classifications and Forbidden Discrimination.
1. Introduction: Because racial discrimination prompted adoption of the 14th
Amendment, racial classifications are “suspect,” meaning they invite the strictest judicial
scrutiny. This analysis has gone through several stages however. Other classifications
may invite heightened scrutiny not reaching the strictest levels. Clear that Court uses it
for more than original purpose of addressing racial discrimination, but hard to say for
what. Common to most of those classifications are:
i.
Historical lack of political power.
ii.
History of discrimination.
iii.
Immutableness of classification: In Frontiero Brennan admits that plenty
of characteristics on which it is proper to make such a distinction, but...
iv.
Irrelevance to performance: characteristic must be relevant to
performance.
v.
Obviousness.
2. Race: Remedying past discrimination; under most narrow reading of epc was meant
to overturn racial codes in the south.
i.
Private bias cannot be used in making child custody determinations—
Palmore v. Sidoti. White couple married and then divorced, wife gets into
an interracial marriage. Husband, , petitioned to get child back based on
changed circumstances. Race wasn’t a permissible criteria here.
ii.
National security could be a sufficient compelling interest: ie Korematsu
v. US. Could differentiate racial profiling of Arabs after Sept. 11 at
airports and borders by saying taking fewer people, and less of an
intrusion (not being taken to camps).
iii.
Court strikes down state practices that on the surface treat races equally: ie
Brown v. Board of Ed.
3. Sex (gender): Court didn’t initially apply epc to gender cases. Can treat it like race,
but history indicates it was not the intent of the framers to forbid sex discrimination.
More recent cases have judged these classifications under a higher standard, but not so
high a test as would apply to the inherently suspect classes.
i.
Heightened scrutiny under the traditional approach: Reed v. Reed. Court
declined to make sex a suspect classification. However, it did hold that a
state could not prefer men over women in appointing estate administrators
simply to reduce the workload of probate courts. This was considered an
arbitrary choice forbidden by the EPC.
ii.
Heightened scrutiny of military benefits plan: Frontiero v. Richardson.
Male members of armed forced got automatic dependent allowances, but
women had to demonstrate they needed them. Would have satisfied
Railway Express test since it’s a stereotype, but still more likely that
female spouses will be dependent than male spouses. Classiciations based
on sex are included among those which are inherently suspect and
therefore subject to close judicial scrutiny. Administrative convienence
isn’t enough.
iii.
“Intermediate scrutiny” with liquor regulation: Craig v. Boren. OK law
that women between 18-21 could buy 3.2% beer but men could not. Court
says that while traffic safety is important and there is some correlation
here, it is inadequate to show that sex represents s legitimate accurate
proxy for drinking and driving. Wells thinks this case is ridiculous.
iv.
Court strikes down a number of cases based on stereotypes. Ex: Orr v. Orr
(husbands had to pay support but not wives), and Weinberger v.
Wisenfeld. That may utliatmely be the distinction, but…
v.
Court will allow difference to make up for past discrimination even those
seem to also be based on stereotypes. However, that justification won’t
work in every circumstance, ex: Missippii University for Women v.
Hogan where state couldn’t keep a women’s nursing college all women.
Court makes the point that the state’s argument of historical discrimination
doesn’t make sense since there are plenty of opportunities for women in
nursing in that state.
vi.
State program that didn’t cover pregnancy from disability insurance was
okay, even though only women get pregnant. Majority said its ok for the
state to cover some things and not others.
vii.
Statutory rape law was permissible even though it only applied criminal
sanctions to men. Court dealt with stereotype problem by saying purpose
had changed over time from protecting women to reducing unwanted
teenage pregnancies.
viii.
State cannot sponsor a single-sex school of higher learning: US v.
Virginia. VMI excluded women from school, said it would be contrary to
their “adversative method.” Court never says its an illegitimate purpose.
It also overrides the findings of fact, and rejects the compromise accepted
by the Appeals court to set up a separate program for women. Rejects VA
claim that trying to maintain diversity in education. Court says that VA
didn’t show the necessary “exceedingly persuasive justification.”
ix.
Could argue that unless can find blocks in the political process these
distinctions are unnecessary. Ex: with passage of 19th amendment, women
can protect themselves if they want to.
4. Other Classifications Arguably Warranting Heightened Scrutiny
i.
Aliens: Sometimes Court has treated as raising epc issues and sometimes
not. Strict scrutiny for alienage classifications in Graham v. Richardson
where Court held that states could not deny welfare benefits to aliens
because such classifications are inherently suspect and subject to strict
scrutiny. The state statutes also interfere with federal power. However,
there was deferential review under government function exception. In
Foley v. Connelie Court held that state could bar aliens from serving as
state troopers, and in Ambach v. Norwick from being school teachers.
ii.
Nonmarital children: a seemingly erratic standard but the level of scrutiny
is between rational basis and standard for sex-based classifications. Court
said states could not bar recovery for wrongful death of mother (Levy v.
Louisiana), could not foreclose intestate succession by nonmartial children
(Tremble v. Gordon), but could require proof of paternity before allowing
illegitimate but not legitimate, children to inherit from their fathers by
intestate succession.
iii.
Age: Mass Bd. Of Retirement v. Murgia. Court holds that MA could pass
law that cops had to retire at 50.
iv.
Mental disability: Cleburn v. Cleburn Living Center. Mental retardation
was not considered a suspect class for epc analysis. Plurality said they
were using rationale basis to strike down the statute, but don’t use it in the
same way had used this test before.
v.
Sexual orientation: Romer v. Evans. Colorado voters adopted a state
constitutional amendment preventing government from giving a protected
status to someone based on sexual orientation. Under strict or
intermediate scrutiny this amendment wouldn’t have been good; however
the Court purports to be using rational basis. They claim that the actual
effect of the amendment is to put homosexuals in a solitary class with
respect to transactions and relations in both the private and governmental
spheres. The amendment had a peculiar property of imposing a broad and
undifferentiated disability on a single named group, and its breadth is so
discountinuous with the purported reasons that it cannot be explained by
anything other than animus towards homosexuals. This it lacks a rational
relationship to legitimate state interests.
Could differentiate from Bowers v. Hardwick by saying Hardwick is about
substantive due process, doesn’t address epc. But if its ok to criminalize
something, how do you say you can’t discourage it.
5. Discriminatory purpose and effect: Although it is necessary to show purposeful
discrimination in order to prove a violation of the Constitution, the Court has been unable
to state exactly what must be proven. Court seems to say that line should be drawn at
purpose—only where the purpose is to discriminate are we going to limit discression.
Where there is no such intent are going to put epc first.
i.
Racial impact of qualifications tests, by itself, is not enough: Washington
v. Davis. Suit brought by black police officers in DC, said that test had a
discriminatory effect, although it seems conceded that there was no
discriminatory purpose. Where there is a racially disproportionate impact,
government must show that the law is netural on its face and serves proper
government ends, but that burden is not high. Here, the Court says the
aim was to help improve the police force, that the connection to the job
bears on the motive.
ii.
Veterans preference: Personnel Administrator of MA v. Feeny. Veterans
preference could be predicted to benefit men, but the Court distinguishes
between purpose and intent and knowledge.
iii.
Court cares about motivation in the administration of laws (including
admin history): Yick Wo v. Hopkins. 80 out of 81 permits were
previously granted, then 200 Chinese applicants and none get. Court said
could infer discriminatory intent from the pattern.
iv.
Mixed motives would become issue of cause in fact. Trier is supposed to
decide but for the bad motive, would the same action have been taken.
v.
State cannot facilitate or encourage: After CA had encated affair housing
laws barring discrimination, voters passed an intiative amending the state
constitution so as to prohibit the state from denying any person the right to
sell, lease, or rent to whomsever he chose. Here, in a 5-4 vote, the Court
affirmed the state supreme court’s invalidation of Prop 14. The Court
stated that, while mere repeal of an antidiscrimination law is not per se
unconstitutional state action, here the state was encouraging and
significantly involved with private discrimination.
6. The De Jure De-Facto Distinction in the School Desegregation Context.
i.
State limits on busing. Washington v. Seattle School District. Voters in
WA adopted an initiative that can’t use busing except where required by
US constitution. Court holds it unconstitutional because it restructures the
political process because have to seek releift at the state rather than the
local level. In Crawford v. LA Board of Education Court upholds a statute
limiting state court’s authority to order using to the type that would be
ordered by the federal government under the 14th amendment. Powell
says it affects all races, doesn’t create a burden for minorities; it doesn’t
restructure and the law can be changed back.
7. The Benign Use of Racial Criteria: Affirmative Action and Race Preference
i.
Must take race into account for previously sponsored government
segregation: Green v. County School Board (1968). Rural county in VA
that had maintained segregated school for a long time, were told they
couldn’t do that after Brown. Instead created freedom of choice plans
(parents could send kids wherever they wanted). Court said couldn’t use
those because they were inadequate to combat segregation.
ii.
A state school may use race as a factor in its admission process using
intermediate scrutiny: Regents of UC v. Bakke (1978). White student
rejected for med school admissions, brought epc claim because of set aside
for minorities. In summary, the less formal and specific the admissions
system, the more likely it will be constitutional. 4-4-1 decision. 4 ruled
for the medical school, thought the statute was constitutionally ok.
Powell’s view carries the day: seems to say they should use strict scrutiny.
Says use of suspect classification may be justified if the state can show
that its purpose or interest is both constitutionally permissible and
substantial, and that its use of the classification is necessary to the
accomplishment of its purpose or the safeguarding of its interests. ’s
reasons for using its special admissions process are inadequate under this
standard. Compares with Harvard’s weighting standard (although
Brennan says that’s just cosmetic). In Hopwood 5th said that Bakke
wasn’t binding precedent since it never had a majority of the Court.
iii.
Race Preferences in Public Employment and Contracting since the 1980s.
Wygant v. Jackson Board of Education. Local school board had to lay
people off, decided to take race into account when doing so (role models).
No majority opinion, Powell says role models isn’t compelling, difficult to
concentrate burden on someone else due to past injustices. O’Connor talks
about not needing finding re past purposeful discrimination. In Richmond
v JA Croson the Court holds that a city may not adopt a set-aside program
favoring minority-owned contractors on city projects when there is no
evidence of direct discrimination on the part of the city or its prime
contractor. Here, the city of Richmond required prime contractors on city
projects to subcontract 30% of dollar amount to minority business
enterprises. O’Connor says need to use strict scrutiny. There’s a lack of
required information on discrimination, and the 14th was to limit state’s
use of racial criteria. Scalia in concurrence points out this would just
aggravate past discrimination, and that federal government is better suited
for dealing with these problems. Dissent said there is a compelling state
interest and they would have used intermediate scrutiny.
Summary of some points made so far:
Classifications made by government
-When it comes to classifications made by government, have seen that the level of
scrutiny, justification required by court, to uphold legislation, will depend on the type of
classification.
-If it involves econ or social matters gets rational basis review.
-Few cases where rational basis review can result in overturning something, ex: Logan
v. Zimmerman Brush. If agency acted within 120 days could go forward, otherwise
couldn’t. Also Willowbrook case, city required 15 foot easement, then required 33 foot
easement with no explanation. Romer, Cleveland living center.
-Court says can go one step at a time: so working on one part and not another is okay.
-Not going to focus on actual purpose, just any conceivable purpose.
-Alienage cases in that category: has to be substantial relationship between this category
and result achieved Easy to manipulate
_Intermediate category: Court often states that the classification will be evaluated by
actual purpose, not any conveivable purpose. So with gender cases actual purpose now
won’t save it from previous purpose.
-With race have strict scrutiny, upholds legislation only if it serves a compelling state
interest. In Korematsu, says national security is a compelling state interest.
Circumstances where making up for diversity is a compelling state interest
-If you can show that government has discriminated against you in the past, there is a
compelling state interest to remedy that.
-When government isn’t responsible, it’s not clear if there’s a compelling government
interest.
-City could have a compelling interest if it was a passive participant in prior
discrimination.
-Have to show the remedy imposed is related to the harm done.
-Court doesn’t like set-asides no matter how much it is related to harm done. Also
seems to reject quotas.
D)
The “Fundamental Interests” Strand of Equal Protection Strict Scrutiny
1. History: Started in 1950s and 1960s, where Court identified some fundamental rights
that would trigger strict scrutiny.
2. Denial of the Franchise: Harper v. VA State Board of Elections
i.
Facts: Harper, , and other VA residents brought suit to have VA’s poll
tax declared unconstitutional. The district court dismissed ’s complaint,
and  appealed.
ii.
Holding: A state may not exact a pole tax as a condition for exercise of
the right to vote. Drawing these lines are contrary to EPC and 14th. States
can impose reasonable voter qualifications, but these must pass careful
scrutiny since the franchise is a fundamental political right. However,
Court previously held that wealth is not a suspect classification; also no
explicit constitutional guarantee of right to vote, although might be able to
derive it from 15th, 19th, and Article IV, §4.
3. Vote “Dilution”: The Reapportionment Cases, Gerrymandering, and Race-Conscious
Districting.
i.
A state must apportion its legislative districts on the basis of population:
Reynolds v. Simms.  challenged the apportionment of the Alabama
legislature, which was based on the 1900 federal census and thus seriously
discriminated against voters who lived in the area where population had
grown significantly in the intervening years. Warren calls voting a
fundamental right and says that it is denied by abasement or dilution of a
citizen’s vote just as effectively as by prohibiting its free exercise. Each
state district must contain as nearly an equal population as possible,
although precision, being impossible, is not required. Case illustrates that
the Court finds constitutional values in places other than the text and the
history.
ii.
Political gerrymandering claim is justicible: Davis v. Bandemer. In order
to state a justiciable claim,  had to prove 1) intentional discrimination
against an identifiable political group and 2) an actual discriminatory
effect on that group. Unconstitutional discrimination arises from an
arrangement of the electoral system such that the voter’s influence on the
political process as a whole is consistently degraded. The fact that an
apportionment scheme makes winning elections more difficult is
insufficient. In this case, the evidence supported a finding that the plan
was adopted with the purpose of discriminating against Democratic voters,
but there was insufficient proof that s voting strength was diluted
statewide. Dissent thought the case was nonjudiciable due to lack of
manageable standards. No real substantive rule here.
iii.
States cannot use race when districting: Shaw v. Reno. NC created a
majority black district by making it a very strange snaking shape. Court
holds that redistricting legislation that is so bizarre on its face that it is
unexplainable on grounds other than race requires strict scrutiny. Looks
like political apartheid and reinforces stereotypes that members of one
group all vote alike. Courts should recognize epc claims since a
representative from that district may think their only job is to represent
that group. Even if there is a compelling state interest under the Voting
Rights Act, these districts are still subject to strict scrutiny. Reject
comparison to UJO v. Carrey where they ruled Hasidic community wasn’t
a discrete and insular minority. Ultimately standard seems to be “Cannot
have district with bizarre appearance” but can take race into account.
Can’t base districts predominatly on race (Miller v. Johnson).
4. Access to Courts: Economic differences in criminal procedure and civil process. The
Court has shown sensitivity to burdens placed on the access of litigants, especially
criminal s, to the courts. Both procedural due process and equal protection have been
invoked for analysis.
i.
Economic barriers and civil litigation: Most decisions in this area handled
through epc rather than dp, because there’s no independent requirement
that the state provide a right to appeal. Ex: MLB v SLJ, there was a
requirement to pay a fee for appellate record. Puts a bigger burden on
poor people, so it obstructs equal access to the system. Unlike
Washington v. Davis,  doesn’t have to show that discrimination was
deliberate because it’s a fundamental rights question here. There are cases
where access will be handled as a matter of substantive due process. Ex:
Boddie where  wanted to get a divorce; access to the courts was a
fundamental right here since had to go through the courts to get the
divorce (Wells disagrees with dp focus here since again the discrimination
is that some can afford access and others can’t).
ii.
Economic differentiations and the criminal process: The “access to
courts” principal evolved in Griffin v. Illinois wherein the Court relied on
epc to hold that in a state prosecution where no appeal was possible
without a transcript from the trial court, the state must provide indigent s
a free transcript in all felony criminal cases. The rationale is that in
criminal prosecutions (where the  is involuntarily involved), matters of
“justice” are charged with too much social interest to be decided on the
basis of some s being poor and others being rich, The dissent argued that
due process did not require this result, since there is no constitutional right
to an appeal, and epc was not applicable because the state was treating
everyone the same.
5. Refusals to expand fundamental interests analysis to redress of economic inequalities.
i.
Access to courts as a way to “cure” poverty: Some wanted to use
constitutional litigation as a way to address inequality, but the Court
refused to extend the fundamental rights doctrine out this far. 2 prong
argument to using the 14th as a way to cure poverty: 1) poverty is a suspect
classification (rejected after composition of the Court changed), and 2)
Fundamental right, even if its not in the constitution. Cases such as
Dandridge (welfare) and Lindsay v. Normet (summary eviction) rejected
this liberal view.
ii.
Court doesn’t want to “constitutionalize” welfare: Big case in this line
was San Antonio Independent School District v. Rodriguez.  complained
about the TX system of school financing since it was based on property
taxes and therefore some districts had more money than others. Majority
disagreed with ’s classification as suspect, and their fundamental rights
argument.
iii.
A state may not deny free public education to undocumented school
children it pvoides to citizens and legal aliens: Plyler v. Doe. Interesting
since education don’t say education is a fundamental interest and illegal
aliens aren’t a suspect class.
IV.
THE POST CIVIL-WAR AMENDMENTS AND CIVIL RIGHTS
LEGISLATION: CONSTITUTIONAL RESTRAINTS ON PRIVATE CONDUCT
AND CONGRESSIONAL POWER TO IMPLEMENT THE AMENDMENTS.
A)
The Statutory Framework
1. The question for the Court becomes whether state is sufficiently involved to trigger
application. With a few exceptions, constitutional rights are held against the government,
not private individuals. Court has held that for the most part our constitution doesn’t set
up rules between private individuals.
B)
i.
One exception is the 13th amendment’s prohibition on slavery (which
applies to state and private persons).
ii.
In general, when Congress acts under 14th or 15th, question of what
constitutes “state action” becomes important. The other main issue in this
area in the actual scope of the power conferred on Congress.
The Problem of State Action
1. The Civil Rights Laws of the Reconstruction Era: In The Civil Rights Cases the Court
held that Congress could not prohibit private discriminatory actions.
i.
Facts: The Civil Rights Act of 1875 made it unlawful for anyone to deny
a person the enjoyment of accommodations at inns, on public
transportation, etc., on the basis of race. These cases arose when blacks
were excluded from hotels, theatres, and railroad cars.
ii.
Hold: 14th prohibits only state action, and 13th term “slavery” doesn’t
include the kind of discrimination present here. Therefore, Congress had
no power to pass the Civil Rights Act of 1875, and s must seek their
remedy in state law for any coa against private individuals or corproatoins
who are discriminating. Acts like this later passed using Commerce
Clause and upheld in Heart of Atlanta in 1964.
2. Significant state involvement: Based on the premise that the Court can identify cases
in which the state is sufficiently involved to trigger constitutional protections.
i.
The “Public Function” analysis: If what you do is a public function, then
you are subject to the constitution. In Marsh v. Alabama a private
corporation owned a town and posted signs prohibiting peddlers. , a
Jehovah’s witness distributed literature on the streets of a company town
and was arrested for trespassing. Court held that neither the state nor any
private owner can totally ban freedom of expression in public places; nor
can state trespass laws be applied to enforce such a ban. “Ownership does
not always mean absolute dominion.” Came up in Hudgens v. NLRB,
where it held that the “company town” rationale does not extend to
passageways in a privately owned shopping center. Not used much since
then. Argument gets turned down a lot, like in Jackson v. Metropolitan
Edison where  had her power cut off by a monopoly, and thus claimed
she hadn’t gotten procedural due process. The Court, however, holds that
to have a public function, the power must be exclusively reserved to the
state (which if true would mean nothing was a public function except the
company town).
ii.
The “nexus” analysis: If state judicial action is used to enforce a private
contract then there could be enough of a nexus for state action. Question
becomes what is the limit of judicial intervention here. Enforcement of
private contracts comes up in Shelly v. Kramer the question was whether
the 14th amendment applied where one private owner was suing another to
enforce a convenant restricting ownership to cauccassions only. The
property rights standing alone are private. But actions of state courts are
actions within the meaning of the 14th amendment, and thus judicial
enforcement of these private racial restrictions constitutes state
discrimination contrary to the 14th amendment and denies  equal
protection. In Evans v. Abney Court distinguished from Shelly saying that
state courts weren’t involved in effecting the will (hard to see why this
came out differently). Leasing of public property came up in Burton v.
Wilmington Parking Authority. The Court held that lessees of state
property whose leases further state interests and which form an integral
part of a state operation are required to comply with the 14th amendment.
The state was the landlord, it could have set the terms for the lease, and
the areas in question were a integral part of the state’s plan to operate.
Modern Court doesn’t use Lugar much, although they haven’t overruled it
(lower courts seem to want to use it more). In Flagg Bros. v. Brook the
Court says the state is in no way responsible for  selling ’s property
under the UCC after he was evicted for not paying rent.
C)
iii.
“Significant extent” analysis: Receiving a liquor license was not a
sufficient connection in Moose Lodge v. Irvis where  refused to serve a
black client.
iv.
Further developments: Blum v. Yaretsky, involved the transfer of nursing
home patients from privately owned, but publically subsidized, nursing
homes to lower-cost facilities. As a result, the patients’ Medicad benefits
were reduced. The Court held that, because the decisions were made by
private physicians, no state action was involved and no violation of
procedural due process had occurred. In Rendell-Baker v. Kohn the Court
held that a decision to fire a teacher, made by a small private school that
was publically subsidized and regulated, was not state action. In Polk
County v. Dodson,  was convicted after being represented by public
defender who was a state employee. Court said no state action since the
PD was representing the client and is supposed to be a state adversary.
v.
Conspiracies between private persons and officials: Where  claims that a
private person and an official entered into an agreement to deprive  of
constitutional rights. In NCAA v. Tarkanian the  sued the NCAA, after
he was sanctioned for irregulatiries with the UNLV basketball program,
because he said they worked so closely together that they became a state
actor. Court said there was no state action because the suspension was
wholly the university’s doing (talked about separate interested, although
they seem to be the same). In Brentwood Academy v. Tennesse
Secondary School Atheletic Association, there was discipline for a
violation of the association’s rules, academy brought suit. Court said there
was a state action, since the association, unlike the NCAA, was all in one
state, and public schools made up 80% of the membership.
iv.
Wells thinks the assumption that there are some situations where there
isn’t enough state involvement is misguided, there’s no such thing. Better
question to ask is whether the constitution should reach a given question.
That will always require balancing the value served against personal
freedom.
Congressional power to enforce civil rights under §5 of the 14th amendment.
1. Generally: These cases seem to stand for the proposition that you can’t use §5 of the
14th amendment to create substantive rights, only to enforce those under the 14th.
2. Congressional protection of voting rights: The right to vote for federal, state, and
local officials is protected from both state and federal government infringment by the
provisions of the 15th and 19th amendments, as well as from state infringement of this
right by DP, EPC, and P&I clauses of the 14th amendment. The 24th amendment protects
the right to vote, but only in federal elections, and only from intrusions on this right
imposed by poll or other taxes imposed by either state or federal governments.
i.
Literacy tests—early interpretations: In Lassiter v. Northampton County
Board of Elections (1959) the Court upheld a North Carolina law that
required a nondiscriminatory applied literacy test in order to be able to
register to vote.
ii.
Voting Rights Act of 1965: Congress has the power by the Enabling
Clause of the 14th and 15th amendments to pass legislation to enforce the
provisions of these amendments. In 1965, Congress passed the Voting
Rights Act, which essentially created a rebuttable presumption that
literacy tests in certain states were used to perpetrate racial discrimination.
The Court sustained the constitutionality of this act, and rejected the idea
that Congress can’t impose some substantive requirements under its
remedial powers in South Carolina v. Katzenbach.
3. Confinement of Congress’s Civil Rights Enforcement Power to “Proportional” and
“Congruent” Remedies: Congress can’t expand the scope of constitutional protections.
i.
Doctrine: City of Boerne v. Flores. Under RFRA if a state law of general
application burdens a religion, the state must show a compelling interest
(came up with a church being denied a zoning permit). Court struck down
the statute because it said that Congress was creating a new substantive
right, which it wasn’t supposed to do--§5 of the 14th is about remedies.
Federalism concern that this would give Congress too much power.
ii.
Congress must show that a law has congruence and proportionality
between the injury and the remedy. Ex: Katzenbach v. Morgan where
Court upheld prohibition of a state law requiring English proficiency in
order to vote. They said this practice was prohibited by §4(e) of the
Voting Rights Act, which had the legitimate aim of assuring equal
protection to all, including non-English speaking citizens. In contrast, the
Court struck down a state law in Florida Prepaid Postsecondary where it
said the law went beyond congruence and proportionality because there
was no record showing the violations against which the law authorized
money damages took place a lot.
4. Defensive v. Offensive remedies: Metaphor of a shield and a sword. Generally only
get to use the shield if you are asserting your own rights.
i.
Defensive: use constitution in a defensive way if the person is a  in a
criminal or civil case and wishes to avoid liability on the grounds that the
law is unconstitutional. Ex: Lochner (statute limiting bakery workers
unconstitutional) and Griswold (giving out birth control).
ii.
Offensive: used when a person who claims to hold a constitutional right
becomes a , brings a lawsuit against officials, sometimes the government,
and seeks damages, injunction, or declaratory judgment. Many rights rely
on offensive remedies (ex voting, defensive would require something like
going to district with fewer people and trying to vote, would get
awkward).
iii.
Federal cause of action for suits seeking to enjoin officials from violating
the federal constitution—Ex Parte Young.  went to federal court to try
and interrupt claim of state prosecution (was no common law tort claim).
iv.
Federal statutory cause of action to recover for violations by state officers:
Monroe v. Pape. Today codified in §1983. Arose from an illegal police
search of a home. US Constitution would come in since it would be tried
under the 4th. Here, allowed to sue for past damages. In order to sue local
government, have to show the violation attributable to the government,
which means showing that high officials know with some degree of
certainty what lower level officials are doing, or that the training is so bad
it produces violations. Officials get qualified immunity that protects them
from suits for damages unless what they are doing clearly violates
established law.
V.
FREEDOM OF SPEECH—WHY GOVERNMENT RESTRICTS SPEECH:
UNPROTECTED AND LESS PROTECTED EXPRESSION
A)
Free Speech: An Overview
1. First amendment theory: help determine which forms of speech get protection and
which don’t. 3 theories that get the most attention are:
i.
Search for truth: Second narrowest. Says that in order to determine what
truth is, have to have interplay since no one person will ever know what
the truth is. Mills says cenorship thus deprives society, Wellington says
that in the long run good ideas drive out bad ones.
ii.
Self-government: Narrowest. More narrow part is that it keeps down
government corruption, broader is that people participate in government so
they need to know how to properly pick people.
iii.
Personal autotomy: Protects the most. Speech helps people to develop
their faculties (but why does that get greater protection than do economic
autotomy, ie Carolene Products footnote).
2. Court identifies categories of speech that attract some kind of government regulation,
that get less protection.
i.
These include incitment, fighting words, defamation, sex speech, hate
speech, and advertising.
ii.
Court distinguishes between content neutral and content based regulation.
Ex: might be able to forbid billboards of a certain size for asthetic reasons,
even if that affects political billboards, but can’t outlaw political
billboards.
iii.
Overbreath: laws written very broadly are more likely to get overturned,
even if a lot of the stuff in it could be regulated.
3. 2 exceptions to content based discrimination:
B)
i.
Can discriminate on content if the basis for content discrimination is the
reason the entire class of speech isproscribable. Ex: price advertising
proscribable because of the risk of fraud.
ii.
Secondary effects: ex: Renton (there limited to zoning).
Incitement
1. The World War I Cases: “Clear and Present Danger.”
i.
Before Schenck almost nothing got protected. Court had said could use
any speech restriction as long as it was considered rational, that they
would only punish if the regulation was an arbitrary use of police power.
ii.
Congress can outlaw speech that presents a clear and present danger to an
important government interest: Schenck v. US. s were encouraging
people to resist the draft; they claimed their speech was protected by the
1st amendment. Court affirmed their convictions, holding that the right of
free expression is not absolute but varies with the circumstances. First
question is whether Congress is pursuing a proper end or purpose in the
legislation. Here it is: Congress has the right to prohibit the evils at which
this statute is aimed, especially in a time of war. Second question is to
what extent Congress can go in seeking to effectuate its purpose?
Congress cannot make speech a crime (because the effect on free speech is
too great) unless there is a “clear and present danger” of action resulting
from the s words that would lead to the legitimately proscribed evil.
This approach is arguably more speech protective.
2. Red Scare cases
i.
Intent: The Act’s requisite intent was present where s goal was to aid the
Russian Revolution—Abrams v. US. A group that didn’t like the US
intervention during the Russian revolution wrote leaflets and called for a
general strike in the armarments factories. The majority held that even if
s intent was to aid the revoluntionary cause in Russia, they must have
intended and must be held accountable for the effects their acts were likely
to produce here (plan if effective would have defeated the US war
program). The dissent held that it should only be the clear and present
danger of immediate evil or intent to bring it about that supports
congressional interference with expression of opinion. Neither was
present in this case.
ii.
The Smith Act: Dennis v. US (1951). Court held that Congress could
pass a law forbidding association with organizations advocating the
overthrow of the US government. Congress has the power to protect from
an overthrow, and the gravity of the evil is discounted by the probability
of the event. Opinion here says the danger doesn’t have to be imminent
because once it was that would be too late. Holmes would say that the
clear and present danger test is not met here. Wells doesn’t think they
have adopted the Dennis clear and present danger test here.
3. Modern incitment test
i.
Advocacy v. Incitement: Brandenburg v. Ohio. A state may not prohibit
advocacy of civil disruption without distinguishing between mere
advocacy and incitment to iniment lawless action. , a Klan leader,
invited a tv crew to cover a private rally. He was convicted under an OH
statute for advocating criminal terrorism and criminal syndicalism. So for
advocacy to become incitment it has to be for imminent lawless action,
has to be directed at lawless action, then it has to actually produce that
action. Wells says the threats for which this test was created weren’t that
bad; what if it was an Al-Qaeda leader?
C). Fighting Words and Hostile Audiences:
1. A given fact pattern probably won’t be strictly in one or the other. Both start from a
speech protective premise (protected unless…)
2. Fighting words looks at specific affects that individual words have on a person (even
if it is just one person): would those words tend to provoke someone to start a fight?
i.
Chaplinsky v. New Hampshire. C giving out literature to a crowd,
Marshall starts to escort him away, C calls him a facist amongst other
things. Court says these utterances weren’t part of an exposition of ideas
and any benefit was outweighed by danger to social order. Court has
never overruled this case, but hasn’t sustained a conviction on it since
then; can thus ask if the fighting words doctrine still has force (some laws
have been passed based on it).
ii.
In Cohen v. CA and Texas v. Johnson the Court later ruled that a state
may not prohibit as “offensive conduct” the public use of an offensive
word or burning a flag (respectively).
3. Hostile audiences looks at audience instead of the speaker. Focuses on the affect of
the speech on the audience as a whole.
D)
i.
Person giving the speech isn’t necessarily use offensive language, but the
crowd doesn’t like what he has to say. Ex: Feiner v. NY. Speaker
attracted a crowd, then wouldn’t shut up when told to do so by the police,
so they arrested him. Court upheld this surpression of speech which in
their judgment was causing a breach of the peace. Dissent was concerned
about heckler’s veto (police sided with people seeking to deprive  of
right to speak). Wells isn’t sure of the vitality of this case, since the Court
hasn’t since found the state’s interests weighty enough to arrest the
speaker.
ii.
A jurisdiction might be able to charge a general fee to everyone for extra
costs like protection. But there must be articulable standards (Foresyth
County v. Nationlist Movement). Also, charging might amount to a
heckler’s veto. Book seems to broadly say that the speaking public is the
beneficiary of the free speech so they should pay for it.
Injury to reputation and sensibility
1. Introduction: Libelous speech is in somewhat the same category as obscenity—it
receives little constitutional protection. However, the same difficult questions exist here
also; that is:
i.
What is libelous and
ii.
What tests are to be used to distinguish protected from unprotected
speech?
2. Libel of public officials: New York Times v. Sullivan.
i.
Facts: Ad in the NYT about a dispute in Alabama. s placed an ad in the
NYT that arguably made defamatory statements about the police
commissioner. The commissioner then sued in Alabama courts, got
$500,000 under the doctrine of presumed damages.
ii.
Holding: Court holds that the 1st and 14th amendments prohibit state rules
that would allow a public official to recover damages for a defamatory
falsehood relating to his official conduct without proof of actual malice.
Actual malice is a recklessness standard. In addition, public officials can’t
recover if the subject relates to their official conduct unless  showed
reckless disregard for the truthfulness of the statement [this is an example
of using the constitution as a shield]. The Court held that debate needs to
be broad and robust, and that can include attacks on public officials.
Wells says the Court might have been better off just attacking the actual
damages part (since here it seems like  is getting $500,000 for not
proving anything). [Shows self-government theory of government where
people need information in order to govern themselves].
iii.
Protecting false statements: Common law defense of truth isn’t good
enough, leads to a comparable self-censorship. That is, have to protect
false statements or people will be very afraid to say anything unless they
can absolutely prove something is true. Argument against reckless
disregard: rewards incompetence since can’t be sued if didn’t have
subjective doubts about the truth of the statement.
iv.
Who is a public official? In one case Court said public official
designation applies to those who have substantial responsibility for, or
control over, public affairs. Cases say that principles and teachers aren’t.
Theoretically only applies to public duties, but in reality courts have
determined that it applies to almost anything a public official does.
v.
Public figures: After Curtis Publishing Co. v. Butts this now includes
public figures (here, it was a UGA coach who sued after it was reported
that he threw a football game). Seems have to have to be on some subject
of public concern, with matters of public governance broadly.
vi.
Standard: After Butts the rule was that a public official or figure had to
meet actual malice standard. However, Gertz v. Robert Welch  won’t
have to show actual malice, and so he can thus recover without showing
reckless disregard (more willing to recognize state’s interest in its
defamation laws). Wells says this just means they are saying the
constitution imposes a negligence standard. Don’t know if this case
survives Time v. Hill.
3. Elimination of media-nonmedia distinction: Dun & Bradstreet Inc v. Greenmoss
Builders.
i.
Credit reporting agency had given out false information on Greenmoss.
Court said that credit reports were outside the Gertz standard (which in
practice means there are a lot of cases that the constitution doesn’t reach).
ii.
Thus the defamed person may recover presumed and punitive damages,
even without proving actual malice, if the defamation is not speech on a
public matter.
4. Invasions of privacy: The Court has held that “matters of public interest” may be
commented on, safe from an action for invasion of privacy, unless the  can show that the
person making the publication was motivated by actual malice.
E)
i.
Public matter: In Time, Inc. v. Hill the Court reversed a lower court
judgment for damages for invasion of privacy (“false light”) that had been
based on a magazine article about a Broadway play (play based on true
event but wasn’t quite accurate, s sued even though showed them well).
ii.
Disclosure of victims’ names: In Cox Broadcasting Corp. v. Cohn the
Court held that because of public interest in a vigorous press, a
broadcaster could not be liable for accurately publishing information
regarding a rape victim, which information was already contained in a
public record.
Sexually explicit expression
1. Obscenity: In general obscene material isn’t protected.
i.
Private possession of obscene material is protected. Stanley v. Georgia.
ii.
Court in Miller v. California defines obscene speech as being udderly
without redeeming value as a whole. Guidelines for the trier of fact are:
“1) whether the average person, applying contemporary community
standards” would find that the work, taken as a whole appears to the
prurient interest, b) whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the applicable state
law, and c) whether the work, taken as a whole, lacks serious literary,
artistic, political or scientific value.” Community gets to decide what is a
“prurient” interest.
iii.
Review of jury determination of obscenity: Finding that nudity alone is
not enough to meet the Miller standard for legal obscenity, the Court held
in Jenkins v. GA that the film Carnal Knowledge was not obscene. In
rejecting the state court’s belief that a jury verdict precluded further
review of the elements of obscenity, the Court noted that a jury does not
have unbridled discretion in determining what is patently offensive,
because the Miller illustrations, although not exhaustive, did establish
constitutional limiations for the type of material that could be found
obscene.
iv.
Shauer talks about the distinction between obsceneity (can be forbidden)
and sexually explicit (which can’t be forbidden) is that hard-core isn’t
cognitive (only appeals to physical).
v.
Practical consequences: What is obscene in one community may not be in
another. Makes it difficult to determine ahead of time what will be
considered obscene. If a prosecutor wants to make an obscene bookstore
owner’s life miserable can just bring one action after another, and the
owner has to assert his constitutional remedies defensively. Exceptions
are if the law isn’t compatible with Miller or Jenkins (but they usually will
be) can offensively bring a 1983 action, and if owner can show bad faith
he can go to court with a 1983 action.
2. Child pornography: A state can prohibit distribution of child pornography even
without requiring that it be legally obscene—it doesn’t get free speech protection. NY v.
Ferber ( sold film of two boys masterbating).
i.
Different interest at stake when its child porn, looking at explotation of
children doing it, not just those observing it. State has a compelling
interest in safeguarding the children’s physical and psychological ewll
being. Thus, unlike Stanley, even the possession of it can be criminalized.
3. Free speech limits on state regulation of non-obscene but sexually explicit and
indecent expression: The Court has used an approach to offensive displays and speech
which applies a less stringent standard of review than is normally applicable to speech.
This approach does not go as far as the categorization used for “fighting words” however.
Court has distinguished between content regulation, and time/place/manner regulation
(which are easier to justify).
i.
“Erogenous zoning”: A city can use exhibition of sexually explicit “adult”
movies as a basis for the statutory classification of theatres. Ex: Young v.
American Mini Theatres. Court upheld Detroit zoning ordinance that
provided that adult theatres couldn’t be too close to each other because
such places adversely affected property values and caused crime. Stevens
seems to feel like this speech gets less protection than political speech,
which makes it easier to justify restrictions (he only got a plurality).
Thinks this case is like US v. O’Brien (draft card burning at protest) where
the government can regulate something with incidental effects on speech,
as long as its main aim isn’t to regulate speech (although they disburse the
theatres to land available at economically prohibitive prices, which doesn’t
seem to have anything to do with government regulation). Court also
upheld a zoning ordinance in Renton v. Playtime Theatres, that regulated
adult theatres by concentrating them in certain areas. They seem to
embrace Powell’s balancing approach instead of Steven’s low value
approach, but its not clear they followed either (the way they allow it to be
regulated would indicate treatment as low value speech as Stevens
suggests). However, the bans can’t be overbroad, as was the case in
Erznoznik v. City of Jacksonville where the Court found facially invalid
an ordinance prohibiting the showing of films containing nudity by drivein movie theatres with screens visible from public streets.
F)
ii.
Control of indecency in the airwaves: In FCC v. Pacifica the Court held
that the federal government (FCC) had the power to regulate a radio
broadcast that is indecent but not obscene. Pacifica broadcast a
monologue by George Carlin containing indecent words (not obscene).
Statute on which FCC got its power to regulate forbid such language. In
addition, FCC didn’t oppose putting it on later at night. Broadcasting gets
the most limited protection because of its unique ability to penetrate
privacy and its accessibility to children.
iii.
Control of indecency on the internet: Reno v. ACLU. CDA of 1996
prohibited person from making an indecent communication over the
internet if you knew the recipient was under 18. It also prohibited persons
from knowingly putting information on the internet that is indecent and
will be available for persons under 18. Court disagrees with government’s
contention that internet is the same as radio, and so if it can regulate
indecency over one, it can regulate over the other. They differentiate the 2
on several grounds including: long standing history of radio regulation
(but there was no internet), and need to take several affirmative steps to
get stuff off the internet as opposed to radio. Then go on to make policy
argument that the prohibition is vague, doesn’t have serious value prong of
Miller, and will be overly burdensome (especially for noncommercial sites
to filter). Say government need to come up with a narrower statute.
Hate Speech
1. The government may not regulate “fighting words” based on the subjects the speech
addresses—RAV v. City of St. Paul.
i.
Facts: People make a cross and burn it in black family’s yard. Statutes
under which the s are charged include the Bias-Motivated Crime Statute
which makes it a crime to do something that the person knows will be an
insult based on bias.
ii.
Holding: Ordinance is facially unconstitutional because it applies only to
“fighting words” that insult, or provoke violence, “on the basis of race,
color, creed, religion or gender.” It does not apply to abusive invective on
other topics, but singles out those speakers who express views on
disfavored subjects. Instead of singling out an especially offensive mode
of expression,  has proscribed fighting words of whatever manner that
communicate messages of racial, gender, or religious intolerance.
Concurrence holds that they don’t need to get to the issues the majority
reaches because the statute is invalid due to overbreath, which would have
a chilling effect on speech.
iii.
Hypo: Al attacks Bob, in part from racial bias. Can that be taken into
account? RAV directed at expression, whereas this is directed at conduct.
Not sure if it would be valid under RAV since it could be more directed at
punishing the idea than the effects of the conduct.
2. Government cannot outlaw conduct that forbids expression of racial, sexual, or
religious bigotry that upsets the party.
i.
G)
Academic conduct codes: U-M speech code (1050) would have been
unconstitutional under majority or concurring in RAV. Statute isn’t ok
because it has content discrimination, and there is a high free speech
barrier on those regulations. Stanford’s code prohibited words that by
their nature injure or inflict breach of the peace. The speech must be
inciting a breach of the peace to be regulable here, so this speech
regulation might be valid to an extent, but not for everything it says.
Commercial Speech
1. Standard of scrutiny: Before 1976, the Court assumed that most commercial speech
was not protected. However, with Bigelow v. VA the Court changed direction and held
that commercial speech merits some First amendment protection. It was established as
protected speech by Virginia Pharmacy Board v. Virginia Citizens Consumer Council.
i.
It can be regulated more stringently than noncommercial speech. In
determining the degree of protection, the free speech interest in the
contents of the speech must be weighed against the public interest served
by the government regulation.
ii.
Court protects a lot of untrue speech in the context of public concern, but
its always possible to regulate commercial speech that is misleading.
iii.
Can’t base arguments on framer’s intent (no one claims that).
iv.
Rationales for protecting commercial speech: Self-government argument
seems pretty far removed (ex: Liquormart about being able to advertise the
price of alcohol); Search for truth, some would argue that is about
anything (Mill probably wouldn’t think it was about the price of wine);
Personal autotomy argument about needing free market about product
information to achieve aims and aspirations; Economic liberty (Wells
thinks this is what its about) argument would be that people should have
information about products.
v.
Cases Court has taken are ones that everyone would acknowledge are
advertising. Ex: SUNY Board of NY v. Fox. Court upheld University
rule that barred Tupperware parties in University dormitories.
vi.
Ads by drug companies about drugs, and oil companies about how
environmentally friendly they are would probably be deemed commercial
speech.
vii.
Cases suggest that commercial speech is lower value speech, even though
the Court doesn’t come out and say that. Court seems to take the view that
advertising gets somewhat less protection than political speech.
2. Determining if a given instance of commercial speech is protected: Central Hudson
Gas v. Public Svc. Corp. Court determined that a public service commission’s
prohibition of promotional advertising by an electric utility, promoting the use of
electricity, violated the utility’s 1st amendment rights.
i.
Court comes up with a 4 part test (1136): 1) If it is lawful activity that is
not misleading; 2) Is the government interest substantial; 3) Is it directly
advancing government interests (here the Court said yes); 4) Is it not too
extensive to serve the interest (here Court said the restriction was more
extensive than necessary). 4th prong is less demanding on a state than a
least restrictive alternative test, but more demanding than a rational basis
test in epc.
ii.
Means-Ends test: The regulation doesn’t need to be the least restrictive
possible—that would be a very strict test. It just needs to be reasonable
and narrowly tailored. Court will look at what the regulation is and what
it does, and if it doesn’t fit it will be struck down. Ex: Cincinnatti v.
Discovery Network. City allowed newsracks with newspapers as opposed
to advertising. Court said can’t do that because the means-ends
relationship isn’t close enough, newsracks are just as ugly. Ex:
Liquormart, state argued that limitations on advertising were justified
because keeping prices higher limited consumption (seems like many of
the restrictions on political speech are really motivated by some special
interest). After Liquormart, mere fact that the government could forbid
something entirely doesn’t mean it has a free reign with regulating
advertising (Posada).
iii.
Other cases: In Greater New Orleans Broadcasting v. US the Court struck
down a statute that outlawed gambling, based on the 3rd and 4th prongs;
Court was concerned that the regulations don’t really further the
government interest, hard to see means-ends link. Similarly, in Lorillard
Tobacco v. Reilly the Court struck down a ban on outdoor advertising of
cigars and smokeless tobacco saying the means-ends wasn’t limited
enough (in some cases that would constitute a complete ban on
advertising).
VI.
FREEDOM OF SPEECH: HOW GOVERNMENT RESTRICTS SPEECH,
MODES OF ABRIDGMENT, AND STANDARDS OF REVIEW.
A)
Distinction between content-based and content-neutral regulations
1. Content based restrictions: Viewpoint as opposed to time and manner restrictions.
Court strongly dislikes them. Distinguish between viewpoint restrictions and subject
matter restrictions.
i.
Viewpoint: Government can’t say what is valuable and what isn’t. A
number of cases across several categories illustrate the general principle
that government is in danger of losing when it aims its regulations at
restricting expression of a particular viewpoint. Ex: Kinglsey (can’t
suppress viewpoint that adultery is good), RAV (expressing racial hatred),
and American booksellers (Easterbrook says can’t surpress viewpoint that
women should be submissive).
ii.
Subject matter: There are times a time/manner/place restriction might be
appropriate, but still can’t discriminate based on subject matter. Ex:
Police Dept. v. Mosley. City had a rule that prohibited picketing within
150 feet of a school while it was in session. Probably would have been ok
if it stopped there, but it made an exception for peaceful picketing of any
school involved in a labor dispute. This restriction doesn’t discriminate
against a particular viewpoint, but it discriminates based on the content of
the speech. Court struck it down; even though a time/manner/place
restrictions would have been ok the government can’t make a distinction
based on content of speech as they did here. ???If it doesn’t discriminate
against particular content, it will necessarily be broad and that will strain
the political process because many people will be affected??? Ex: Lady
Godiva riding naked on a horse to protest taxes; ban on that would
problems. A ban on nudity would have more people protesting, but there
would be political safeguards.
2. Content neutral laws and symbolic content: Speech includes behaviors that aren’t just
speaking or writing words, ex: cross burning. Question becomes how to recognize it.
i.
Intent to convey particularized message in the surrounding circumstances
where likelihood is great that it will be perceived that way. Ex: Spence v.
Washington.  put peace symbol on US flag, tried for defacing. If were
to bar the general conduct would run into a Mosley problem.
ii.
Government can justify incidential limitations on first amendment
freedoms when conduct contains both “speech” and “nonspeech”
elements—US v. O’Brien.  burned his selective service registration card
in violation of law which said you could go to jail for that. He claimed it
was intended to influence others to adopt his anti-war belief. Court ruled
that the government’s regulation was not aimed at surpressing a viewpoint
or discriminating on the content of speech, that the regulation was
juistified (as it was here) if 1) it is within the constitutional power of
government, 2) furthers important or substantial government interests (not
so hard to come up with that), 3) if government interests are unrelated to
surpression of free expression (viewed as a big deal), and 4) if incidental
restrictions on alleged first amendment guarantees are no greater than
essential (not such a big deal once get passed 3). Here, the administrative
reasons for requiring people to have a draft card required that they not
burn them. This test was not satisfied in Texas v. Johnson where  was
arrested for burning an American flag. Court held that was expressive
conduct, and government regulation of that conduct was exactly because
of its expressive elements (thus O’Brien) doesn’t apply.
3. Public indecency and the prohibition on nude dancing: Court seems to find that it is
expressive/symbolic conduct, and thus, that it is speech.
i.
Variety of views on statutes restricting nude dancing—Morality v.
Secondary Effects. Court is willing to allow more regulation of sexually
explicit speech based on secondary effects. Barnes v. Glen Theatre:
Statute that made dancers wear pasties and g-strings. Court held that this
didn’t violate the first amendment, but for a variety of reasons. Scalia said
to abandon O’Brien, if its not specifically directed at expression than don’t
do a first amendment analysis. White, Blackum, and Stevens in dissent
said O’Brien didn’t apply, and had differing viewpoints on the substantial
state interest (moral disapproval or secondary effects). Wells thinks this
case represents a 3rd technique, that the purpose in the theatre is to protect
the viewer from what the state thinks is bad or improper. City of Erie v.
Pap’s AM. Scalia and Thomas say that a general law regulating conduct is
not subject to 1st amendment scrutiny, while O’Connor, Rehnquist,
Kennedy and Breyer hold that the state interest justification is not
morality, but secondary effects.
B)
Government’s Power to Limit Speech in its Capacity as Proprietor, Educator,
Employer and Patron.
1. Speech in public forums and other government property:
i.
Time, Manner, Place test for speech: One aspect of this problem in
regards to speech is to what extent government can regulate speech in
public streets, sidewalks, and parks. Can’t just say these things are owned
by the government; the Court has imposed some limits on restrictions of
speech in the public forum. Ex: Hague v. CIO the Court said the parks,
etc are held in trust for the use of the public and are traditional places for
expression of views. Therefore the government has some, but not absolute
power.
ii.
Standardless licensing that leaves too much discretion to the official are
invalid. It’s too easy for the standards to be manipulated. Ex: Hague and
Saia v. NY invalidated such schemes. Permit requirements that contain
objective standards have been upheld, Ex: Cox v. New Hampshire only
required use of time, place, manner restrictions. Can charge a flat user fee
(footnote 1 on 1191).
iii.
Leaflets, soundtrucks, and noise restrictions: To be within O’Brien
doctrine, government has to show it has a reason unrelated to speech, and
must meet the 4 criteria showing that the incidental restrictions on speech
go no further than is necessary to further the government’s non-speech
interests. Can’t prohibit leaflets as a blanket rule, ex: Schneider v. State.
The balance is in favor of speech and litter is just a byproduct. Can,
however, make littering a crime. Can’t prohibit door-to-door distribution
of leaflets, Martin v. Struthers (although today could make a stronger
argument that the crime element is much stronger). The government can
ban loud and racous loudspeakers, Kovacs v. Cooper, although a total ban
probably wouldn’t be ok. Court rejected a first amendment challenge in
Ward v. Rock Against Racism where they were going to have a concert in
Central Park and city wanted to use its own sound technition to keep noise
down. Seems to say government has a relatively strong interest in
regulating sound. Also rejects narrowly tailored meaning least restrictive
alternative. These cases come down to a balancing of interests.
iv.
Restrictions on picketing: In Carey v. Brown Court invalidated a
picketing restriction against a law banning picketing outside residences
but exempting peaceful labor disputes; the Cour truled that the contentbased restriction has no bearing on privacy, since it allows labor picketing,
but bans all other types and thus violates 1st. However, in Frisby Court
says the law is content neutral and there are other ways to do the picketing
(don’t need to go in front of abortion doctor’s door). Wells doesn’t see
how this is content neutral.
v.
Ban on medium restrictions resurrected in City of Ladue v. Gilleo. Seems
to resurrect Schneider and its prodgieny (Kovacs etc). Here there was a
ban on signs with a few exceptions. Stevens says the measure is content
neutral but bans too much speech.
2. Types of permissible restrictions vary by type of forum:
i.
3 categories of forums: In Perry Education Assn. v. Perry Local Educators
Assn. (restricting access to teacher’s mailboxes to current union) the Court
went through 3 categories of forums. 1) streets and parks where there is
the most protection, the State can’t act without the O’Brien test, 2)
designated forum generally open. Although not required to creat it, bound
by same standards as #1 as long as the state creates it, and 3) property not
normally a forum for speech, can have time, place, manner restrictions and
regulations on speech that are reasonable and not surpressing because of
speaker’s views. Ex: Tate Center forum would probably be a designated
public forum, so have to treat it like 1st. Even if in the 3rd category there is
still a prohibition against viewpoint discrimination.
ii.
Determining which kind of forum: Closer to the corfe of 1st amendment,
the more protection something will get. An airport terminal operated by
public authority can prohibit soliciation in the interior (chance of fraud,
impedes traffic), but can’t limit the distribution of literature (not as
disruptive and closer to free speech protection than soliciation, also they
say fewer alternatives). International society for Krishna Consciousness v.
Lee. Majority talks about airports not being a traditional public forum
(but they’re recent). In Arkansas Educational Television v. Forbes had to
obtain permission so that’s different than where create open space for
everyone. Therefore its in the 3rd category, although even in the 3rd
category can’t have viewpoint discrimination. In Widmar v. Vincent the
Court held that when state university facilities are generally available for
use by registered student groups, the use of facilities for religious worship
and discussion cannot be barred, even on the basis of promoting the
seperation of church and state. The university created a public forum so it
fits into the 2nd category, and thus must be treated like the first.
3. Speech in public schools: Public schools by necessity control speech. Administrators
and classroom teachers determine what subjects are to be studied and discussed.
However, students also participate in noncurricular activities while at school. Generally,
students are allowed to engage in expression that does not materially disrupt the
educational purpose of the school.
i.
Generally, students are allowed to engage in expression that does not
materially disrupt the educational purpose of the school—Tinker v. Des
Moines School District. School suspended Tinker for wearing a black arm
band protesting the Vietnam War. Court said the test is substantial
inteferring. While the Court has overruled Tinker, Wells says Bethel v.
Fraser shows why it is wrong.
ii.
The first amendment doesn’t require a school to affirmatively promote
particular student speech (eg publish a newspaper): Hazelwood School
District v. Kummer. School newspaper talked about pregnancy and
divorce. Court found that the school newspaper as a non-public forum,
thus school could regulate in a reasonable manner. ???What if the school
bans all newspaper—good exam question???
4. Public employee speech: State has interests as employer in regulating speech for
employees different than regular citizenry in general.
i.
Approach these cases by looking at 1) Is speech at issue a matter of public
concern? If its private concern than employee loses right away. If it’s
public concern…2) Do a balancing test where weigh interests of state in
public efficiency against ??? Ex: Connick v. Myers. ADA was going to
be moved, didn’t want to be so she comes up with a questionnaire asking
people if they were happy. Court looked at 1st and 14th amendment
concerns, said that was mostly about private concern, but there was public
concern about the question over whether people felt pressure to work on
campighns. But it was mostly a private concern which did not require  to
tolerate the disruptive activity. Ex: Al says he was treated badly on
account of race. Courts likely to say that is just a matter of private
concern, unless he frames his speech in terms of systematic race
discrimination (then he’s in public concern category, although Court could
still say it’s private).
ii.
Factors in balancing: How high up in the hierarchy is ? Court says in
Rankin that state interest is minimal where employee has no policy
making role, so the higher up the person is the easier it is to justify the
action. Spectrum of more disciplined (military/police/firemen) to less
disciplined (University Professors). Public school teachers are in the
middle. Topic also matters. Some matters of public concern, like
corruption, have more weight than others, like invidual policies.
Incompetence is in the middle.
iii.
Employer protected by reasonable belief: Public employee can be
discharged for what the employer reasonably believed was speech on a
matter of private concern, even if erroneous, without violating the 1st
amendment. Waters v. Churchill. Also get official immunity if do
something that violates constitution, but reasonably believe that it doesn’t.
Court has never made any rule saying governments have to give you
notice of what is and isn’t forbidden.
iv.
Causation rule: Once employee shows that what he said was a substantial
factor in being fired, burden shifts to employer to show that but for that he
would have been fired anyway. Mt Healty v. Doyle. However, some
government employees don’t get the benefit of Pickering-Connick
doctrine; they can be fired for anything. Court’s test (1269) is whether it
is a partisan type of job; that it requires trust and confidence of public
employee such that party affiliation is an appropriate part of the job. In
inquiry to that is yes, then can be fired. Government can get out of
contracts, but must have non-speech reasons.
5. Speech subsidized by public funds: Can’t penalize for belief, but can refuse to
subsidize (although these seem to get confused).
i.
Government cannot condition benefits on speech content: Court has held
that the government cannot penalize an individual for the content of his
speech by withholding benefits for certain speech. In Speiser v. Randall
the Court disapproved a state law limiting property tax exemptions for
veterans to those who would declare that they did not advocate the forcible
overthrow of the government. Denying the exemption was equivilent to
punishment for the content of the speech.
ii.
Restraint in exercising rights: In some circumstances, the government
may condition benefits on a person’s or group’s restraint in exercising
First Amendment rights. Thus, the IRS may withdraw the tax-exempt
status of an organization that engages directly in lobbying. Regan v.
Taxation with Representation of Washington. Won’t hinder lobbyist a lot
since they can set up separate organizations. More compelling interest
than Speiser, not about viewpoint, are saying not going to subsidize
lobbying.
iii.
Not subsidizing editorials of public tv stations considered a penalty by the
Court. FCC v. League of Women Voters. Noncommercial stations
funded by the CPC were prohibited from editorizng. The Court
invalidated that provision because it resulted in a content-based penalty on
broadcaster’s protected speech, not a mere nonsubsidy of speech as in
Regan. Possibly a stronger organizational interest in that they can’t set up
2 organizations which could be a major analytic difference (although
Wells says should be looking at underlying interest, not penalty v.
subsidy).
iv.
Can take account of standards of decency in deciding funding. NEA v.
Finley. Court upheld regulation in a situation where someone was turned
down for NEA funding. Scalia says government can fund its money
however it wants, no free speech issue.
C)
Impermissible forms of speech-restrictive law: Overbreadth, Vagueness, and Prior
Restraint.
1. Overbreadth: If the law covers too much protected speech, as well as unprotected
speech, the courts will strike it down on its face.
i.
General approach to constitutional litigiation is to strike the law down on
its face if it has no, or few valid applications. When the law has some valid and some
invalid applications, Court reviews it as applied (“Ok for this litigant, but not for this
litigant.”). Could still say its overbroad. Ex: Court would strike down a law saying all
advocacy aimed at subverting our government is forbidden, would raise free speech
problems under Brandenburg (some would be valid, some wouldn’t be). A professor
who believes in communism could advocate rbinging it to US, but wouldn’t be protected
if he gave a speech to an angry crowd saying to march on ROTC building and burn it
down (illegal under Brandenburg). Court won’t just address these things in an as-applied
opinion because that would be dicta, which the Court isn’t willing to do.