SPRING 2014
GILMER
CONSTITUTIONAL LAW II
Constitutional Law II Outline
Professor:
Jason Gillmer
THE STRUCTURE OF THE CONSTITUTION’S PROTECTION OF CIVIL RIGHTS AND
CIVIL LIBERTIES.
A. THE APPLICATION OF THE BILL OF RIGHTS TO THE STATES
i. Bill of rights was historically just for feds – states could violate
ii. Reconstruction amendments changed that
a) 14th Amendment placed Limitation on STATE government
• § 1: US citizenship – privileges & immunities – due process (life, liberty, property) –
equal protection to all in jurisdiction.
• Plus enforcement power
iii. SC has identified certain “fundamental rights” that no state can take away without violating
14th amendment
iv. SC has incorporated and made applicable to states almost all of bill of rights along with a few
extras.
v. Rights NOT incorporated:
. 3rd amendment quartering soldiers
. 6th amendment grand jury
. 7th amendment civil jury trial
. 8th amendment prohibition of excessive fines
B. THE APPLICATION OF THE BILL OF RIGHTS TO PRIVATE CONDUCT
i. State Action Doctrine – for bill of rights to apply, there must be a government actor.
ii. Exceptions to the state action doctrine
a) The Public Function Exception -- private entity must comply if it is performing a task
that has traditionally, exclusively been done by the government.
• YES: elections – private prison – private police/fire – company town
• NO: public utility – private school w/public funding – shopping mall
b) The Entanglement Exception -- private conduct must comply if the government has
authorized, encouraged or facilitated the unconstitutional conduct.
• Solution – gov’t must cease involvement w/private entity, or entity must comply with
constitution
• Examples:
• Judicial/law enforcement actions – Shelley – courts enforce private discriminatory
real estate covenants
• Gov’t licensing and regulation
• YES: Wilmington Parking – café in municipal garage
• NO: Moose Lodge – liquor license to discriminatory bar; Rendall-Baker –
private school serving a public function
c) Question here – are we in favor of more robust findings of state action? Or more findings
of private actions?
• Not applying the constitution to private conduct permits more autonomy to private
actors.
• More rigorous finding of state action prevents private actors from trampling civil
Page 1 of 12
1
SPRING 2014
GILMER
CONSTITUTIONAL LAW II
liberties.
Page 2 of 12
2
SPRING 2014
GILMER
CONSTITUTIONAL LAW II
I. EQUAL PROTECTION.
A. INTRODUCTION
i.
EP clause is a fundamental guarantee that, without some sufficient reason, similarly situated
people deserve to be treated alike.
ii.
Analysis – 3 questions
a) What is the classification? Age, gender, religion, race, economics?
b) What is the appropriate level of scrutiny?
• Discrete insular minority – hardest look – Carolene Products
c) Does government’s action meet the level of scrutiny?
• Ends – what is govt trying to accomplish
• Means – how does it accomplish those ends
iii.
Question – is classification justified?
a) Balance government’s needs v. individual’s right to equal protection
b) Rights are not absolute – can be taken by gov’t, but must gov’t must first justify – promise
of the constitution
B. THE RATIONAL BASIS TEST
i. For virtually all laws/regs and government actions unless otherwise specified.
a) Age classifications – Mass. Bd. of Retirement – make cops retire at 50
b) Disability classifications – City of Cleburne – disabled now protected by ADA
c) Wealth classifications -- San Antonio School District v. Rodriguez – poverty is NOT a
suspect classification (also, no fundamental right to education)
d) Sexual orientation – Romer v. Evans – Windsor – animus not legitimate purpose
ii. Rationally related means to a legitimate government purpose (end)
a) Court extremely deferential to the government
b) Ends must be legitimate, and the means must be rationally related
c) Tolerant of significant over-inclusiveness
d) You can make shit up
iii. Legitimate ends – virtually any goal not prohibited by constitution
a) Animus toward traditionally disfavored group is NEVER a legitimate end – Romer v.
Evans
b) Irrational fear and prejudice is NOT a legitimate end – City of Cleburne
iv. Rationally related means – a legislature could have rationally come up with this as a way to
accomplish end.
a) Railway Express – city can properly distinguish between general advertisement and ads
sold by truck owners so ban okay
b) Beazer – a city can ban all drug users, even those in treatment, from working in the transit
authority – not irrational
v. Rational basis with bite – more rigorous review – found in cases of traditionally disfavored
population (but not suspect class)
vi. BOP on the challenger.
Page 3 of 12
3
SPRING 2014
GILMER
CONSTITUTIONAL LAW II
C. THE STRICT SCRUTINY TEST
i. For classifications based on “Suspect Class” -- Race, National Origin, Alienage, Religion.
ii. Compelling Government Purpose and Necessary/ Narrowly-Tailored Means.
iii. BOP on the government.
iv. Proving the existence of suspect classification
a) On the face of the law -- Korematsu
b) OR the law has discriminatory impact AND purpose -- Yick Wo
v. Strict scrutiny for racial/national origin classifications
a) Classifications which disadvantage racial minorities -- Korematsu
b) Classifications which disadvantage whites AND minorities – Loving (purpose – white
supremacy – not compelling or even legitimate) – Palmore v. Sidoti (Court cannot give
effect to private biases without violating EPC. “Private bias may be outside the reach of the
law, but the law cannot, directly or indirectly, give them effect” – white woman married to
black man was fit mother so couldn’t have her child removed) – But see Plessy (separate but
equal) – Brown v. Board (overturns Plessy – Separate but equal facilities are inherently
unequal) – Johnson v. CA (prison segregation gets strict scrutiny – fails because other means
could accomplish safety goal)
c) Facially Neutral Laws With Discriminatory Impact or Discriminatory Administration –
Washington v. Davis (blacks disproportionately fail police test – discriminatory impact not
enough without discriminatory purpose – no classification so rational basis review) –
McClesky v. Kemp (criminal statute discriminatory impact but not “conscious, deliberate
bias” upheld – Baldus study case – no classification so rational basis review) – Personnel
Administrator v. Feeney (hiring preference for vets has impact on hiring of women –
awareness of this likely impact does not show discriminatory purpose – no classification so
rational basis review)
• evidentiary tools to discover discriminatory intent
o Historical background – can be relevant
o Departures from normal procedure
o Departures from normal substance
o Specific sequence of events – sudden change
o Legislative or administrative history
o Discrimination need not be sole purpose; must be a motivating factor
! From Village of Arlington v. Metro Housing Development
d) Racial classifications benefitting minorities – strict scrutiny to evaluate ANY classification
that burdens one race more than another (remedial and invidious discrimination alike) -Richmond v. Crozan – 30% of city contracts must go to minority owned businesses -General societal discrimination is not held a compelling government interest – specific past
discrimination by the entity required.
e) Education Affirmative Action – enhancing diversity in the classroom is a compelling
government interest in education. Grutter (UM Law may consider race among other soft
variables) – Gratz (UM undergrad may not add 20 points to each minority student’s score –
too much like quota or set-aside) – Fisher v. UT Austin (gov’t must show there aren’t better
methods to achieve diversity – taking top 10% from each high school doesn’t do it).
Page 4 of 12
4
SPRING 2014
GILMER
vi.
CONSTITUTIONAL LAW II
Strict scrutiny for alienage classifications
a) General rule for legal non-citizens – strict scrutiny – Graham v. Richardson – not okay to
withhold welfare benefit from legal aliens by imposing residency duration requirement
b) Congressionally-approved discrimination – rational basis for acts of Congress and President
because they are charged with diplomacy, international relations and immigration – they can
limit alien rights in ways states cannot. Matthew v. Diaz -- congress can impose minimum
residency requirement for federal medicare
c) Alienage classifications related to self-government and democratic process = rational basis
review. Aliens can’t vote.
d) Undocumented aliens and EP – Plyler v. Doe – illegal aliens are breaking law so not entitled
to protection – but cannot withhold free public education from their kids
• Different scrutiny test for illegal aliens – “Plyler test”:
• Substantial state goal
• Rationally related means
• Kind of “rational basis plus”
D. THE INTERMEDIATE SCRUTINY TEST
i. For Gender Classifications and Discrimination against Non-Marital Children.
ii. Test: End – Important Gov’t Objective; Means – Substantially Related to that End.
iii. BOP on the government.
iv. GENDER CLASSIFICATIONS
a) Level of scrutiny – Frontiero (Air Force dependent case – strict scrutiny—no longer the
standard) – Craig v. Boren (3.2 beer for women 18-21 and nothing for men – established
intermediate scrutiny) – VMI case (exceedingly persuasive justification = intermediate
scrutiny)
b) Proving existence of Gender Classification -- laws that classify into two groups are not
classified based on gender when one of the sexes can belong to both groups -- Personnel
Administrator v. Feeney (hiring preference for vets has impact on hiring of women –
awareness of this likely impact does not show discriminatory purpose – no classification so
rational basis review) – Geduldig (pregnancy discrimination)
c) Gender Classifications Benefitting Women
• Gender classifications that benefit women and disadvantage men are constitutional when
based on legitimate bio differences and not on stereotype
• As a remedy – okay – Califano (SSA rule favors women to compensate for past
discrimination and lack of opportunity)
• Based on role stereotypes – not okay – US v. Va. (generalizations about women not
wanting adversarial education style at VMI) – Miss. Women’s Univ. (keep nursing school
all-women doesn’t remedy discrimination because women are the bulk of nurses)
• Based on Biological Distinctions – Geduldig (pregnancy discrimination is not gender
discrimination because men/women in non-pregnant group) – Michael M.
(criminalization of sex with teen girl but not teen boy held a legitimate bio difference
because impact of sex different on girls) – Nguyen v. INS (okay to have different burden
to prove parenthood by mother and father – kind of obvious who the mom is)
v. DISCRIMINATION AGAINST NON-MARITAL CHILDREN
a) Laws that provide benefit to all marital children but no non-marital children will always be
found unconstitutional – unconstitutional to: ban non-marital children from getting wrongful
death benefit for parent death – ban parents of non-marital kids from getting wrongful death
Page 5 of 12
5
SPRING 2014
CONSTITUTIONAL LAW II
GILMER
benefit for child death – prohibit non-marital children from getting welfare (by limiting
benefits to homes with two married parents) – prohibit non-marital children from inheriting
from intestate fathers.
b) Laws that provide benefit to some non-marital children but deny to others are evaluated caseby-case under intermediate scrutiny – laws upheld: non-marital child inherits from father
only if paternity established during father’s lifetime – non-marital child inherits from father
only if father acknowledged child during lifetime – SS survivor benefits only for children
who established paternity and father provided financial support. But see Jimenez v.
Weinberger (struck down provision of SSA that allowed intestate inheritance of disability
benefits by all marital children and by non-marital children that had been “legitimated.”
Likelihood of spurious claims is the same in both groups)
II. FUNDAMENTAL RIGHTS UNDER DUE PROCESS.
A.
ECONOMIC SUBSTANTIVE DUE PROCESS
i. Lochner era – SC used DP analysis to invalidate government regulation – gov’t can only
interfere with right to contract for public health, safety, morals.
ii. Legal realism of late 30’s lead to rational basis review of economic regulations – they are now
always upheld.
B.
INTRODUCTION
i. 14th Amendment provides that gov’t cannot interfere with life, liberty, property interest without
“due process of law.”
a. Procedural due process – notice plus opportunity to be heard.
b. Substantive due process – whether gov’t reason for taking life, liberty, property is adequate
– triggered in two main areas:
• Economic liberties
• Safeguarding privacy
c. Liberty interests include:
• Contract
• Engage in common occupations of life
• Acquire useful knowledge
• Marry
• Establish home/bring up children
• Worship God according to dictates of own conscience
• Generally enjoy privileges = orderly pursuit of happiness by free men.
C.
FRAMEWORK FOR ANALYZING FUNDAMENTAL RIGHTS
i. Is there a fundamental right? – Bill of Rights (most) plus others found by SC in liberty interest
ii. Does gov’t action infringe that right?
a. If not, rational basis review.
b. If so, strict scrutiny – compelling gov’t interest and narrowly tailored means.
Page 6 of 12
6
SPRING 2014
GILMER
D.
CONSTITUTIONAL LAW II
CONSTITUTIONAL PROTECTION FOR FAMILY AUTONOMY
Right to marry – Loving v. Va. (law banning interracial marriage infringes right to marry who
you choose) – Zablocki v. Redhail (requirement to pay back child support interferes directly
and substantially with right to marry) But see Califano (okay to stop SS benefits when child
marries) – Bodie (okay to give SS survivor benefit to widow who remarries but not divorcee
who remarries) – BUT – there is not necessarily a fundamental right to marriage – it’s still iffy.
ii.
Right to custody of one’s children – Stanley v. Ill. (father has right to custody unless shown
unfit) – Michael H. v. Gerald D. (irrebuttable presumption that husband is father of children in
marriage – no fundamental right to custody for adulterous father).
iii.
Right to keep family together – this includes extended family but does not include non-related
people (roommates) – City of East Cleveland (gov’t cannot define family to exclude nonnuclear families – multi-generational) – cf. Village of Belle Terre (okay for city to ban big
groups of non-related people living together).
iv.
Right of parents to control upbringing of children – ties back to privacy and strong family
traditions of U.S. – Meyer v. Nebraska (state can’t tell parents not to give kids German lessons)
– Sisters of the Holy Name (state cannot require public school, parents can choose
private/religious school) – Wisc. v. Yoder (Amish parents can take kids out of school at 14) –
Parham v. JR (parents can commit child to institution w/no notice and hearing for child) –
Troxel (3rd parties cannot petition for visitation if parent is fit – grandparent case) – But see
Prince v. Mass (child labor law upheld against parent making kid hand out religious lit – rights
of parents are not absolute).
i.
E.
CONSTITUTIONAL PROTECTION FOR REPRODUCTIVE AUTONOMY
i. Right to procreate – Skinner v. Okla. (recognizes fundamental right to procreate – strict scrutiny
required for forced sterilization of criminals – overturns Buck v. Bell “three generations of
imbeciles are enough”)
ii. Right to purchase and use contraceptives – Griswold (right to privacy covers right of married
couples to contraception – right found in “penumbra” analysis) – Eisenstadt (extends this right
via EPC to unmarried persons -- “if the right to privacy means anything, it is the right of the
individual, married or single, to be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear or beget a child”) – Carey v.
Population Svc. (extend rights to minors – ban is not substantially related to interest in deterring
teen sex).
iii. Right to abortion
a. Recognition and reaffirmation of right – Roe v. Wade (right to privacy encompasses abortion
decision – trimester set up – govt interest in maternal health and potential life) – Casey v.
Planned Parenthood (replaces trimester setup with viability – pre-viability state can try to
influence mother against abortion as long as no undue burden is applied – after viability
state can prohibit w/exception for life/health of mother – undue burden/substantial
obstacle analysis replaces strict scrutiny)
b. Government regulation – Gonzales v. Carhart (state can prohibit partial birth abortion – not
undue burden because exception for mother’s life and plenty of alternatives) – also waiting
periods and informed consent/counseling requirements okay
c. Restriction of funds and facilities – repeated holdings that gov’t is not required to fund
abortions for poor women even if they fund childbirth – Maher v. Roe (CT can restrict
payment to medically necessary 1st trimester abortions) – Harris v. McRae (okay for state to
not fund even medically necessary abortions)
Page 7 of 12
7
SPRING 2014
CONSTITUTIONAL LAW II
GILMER
d. Spousal consent/notice – married woman not required to get consent or give notice to
husband to get abortion – Planned Parenthood v. Danforth (since state cannot veto, it cannot
delegate that power to husband – if disagreement, one must win out and it must be wife
because she is more affected) – Planned Parenthood v. Casey (notification requirement
invades woman’s privacy – most non-notification is due to affair/abuse)
e. Parental consent/notice – states can require parental notification/consent, but must provide
judicial bypass for sufficiently mature minor and best interest of minor.
F.
CONSTITUTIONAL PROTECTION FOR MEDICAL CARE DECISIONS
i. Right to refuse treatment – generally recognized but not absolute – state can regulate – Cruzan
(competent adult may refuse tx including life-saving food/water – but state may require clear and
convincing evidence of her intent – but SC does not clarify level of scrutiny or level of proof)
ii. Right to physician-assisted suicide – does not exist – WA v. Glucksberg (assistance in dying is not
a fundamental right – distinction between omitting tx and active killing)
G.
CONSTITUTIONAL PROTECTION FOR SEXUAL ORIENTATION AND SEXUAL
ACTIVITY
i. Lawrence v. TX – fundamental right of consenting adults to engage in private sexual conduct with
whom and how – strict scrutiny – however, no fundamental right to sodomy
III. SECOND AMENDMENT – RIGHT TO KEEP AND BEAR ARMS
A. US v. Miller -- 1939 – so limiting that there was little reason for SC review of gun cases – 2nd
amendment protects a collective right (militia) and not an individual right
B. DC v. Heller -- The Second Amendment protects an individual right to possess a firearm
unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such
as self-defense within the home – right is not absolute – concealed carry permits okay – bans on
unusual and particularly dangers weapons okay – limits on where you can carry okay
IV. FIRST AMENDMENT – FREEDOM OF EXPRESSION
A.
INTRODUCTION
i. why should freedom of speech be a fundamental right
a. self-governance – political speech – about/against government
b. discovering truth – marketplace of ideas – truth will rise to the top – downside: people with
money actually control this (Citizens United etc)
c. advancing autonomy – personal liberty to express self
d. promoting tolerance – intellectual character of society is bettered by hearing all voices
e. conclusion – multiple justifications – overlapping, some more apt than others for each
situation
ii. found in first amendment
Page 8 of 12
8
SPRING 2014
GILMER
CONSTITUTIONAL LAW II
B.
FREE SPEECH METHODOLOGY
i. Content-based restrictions – strict scrutiny
ii. Content-neutral restrictions – intermediate scrutiny
a. Important NON-SPEECH government interest
b. Means do not burden free speech any more than necessary to reach goal
c. Turner v. FCC – must carry law is content-neutral and passes test
iii. Vagueness and Overbreadth
a. Vagueness – an ordinary person would have to guess at meaning – would not be able to tell
what is prohibited – Coates v. Cincinnati (ordinance banning groups being annoying is too
vague and too broad)
b. Overbreadth -- law captures conduct that is permitted in addition to that which is okay to
limit. Reasonable people cannot know its limits and it inevitably will capture
constitutionally protected speech – Schad v. Mt. Ephraim (ordinance banning live
entertainment will capture protected speech in addition to nude dancing) – must be overly
broad – realistic danger of affecting rights of parties not before the court – must be shown to
be unconstitutional as applied to others – exception to ordinary standing requirement
c. Relation between Vagueness and Overbreadth – Jews for Jesus (airport reg banning 1st
amendment activities too vague and broad)
• Test:
• Substantial overbreadth
• Realistic danger statute will compromise 1st amendment rights of parties not before
the court
d. SC allows lower courts to narrowly construe regs to avoid striking them down for vagueness
or overbreadth – child porn v. porn – nude pictures v. obscene pictures
e. Infringements of speech -- Statute that prohibits speech and provides criminal punishment -Prior restraint on speech -- Court orders -- Licensing systems
f. Types of laws -- Allow civil liability for expression -- Prevent compensation for speech -Compel expression -- Condition a benefit on person foregoing speech -- Pressure individuals
not to speak
g. Compelled speech – Barnett (requiring flag salute from JW kids at school -- If there is any
fixed star in our constitutional constellation, it is that gov’t cannot prescribe orthodoxy in
politics, nationalism, religion, other matters of opinion, or force citizens to speak their faith
therein)
C.
PLACES AVAILABLE FOR SPEECH
i. Private property – no constitutional right to speech – however, Pruneyard leaves open possibility
of speech at shopping malls
ii. Traditional forum – by long tradition gov’t has made available for discussion/debate –
courthouse steps, sidewalks, town square – strict scrutiny
iii. Designated forum—not traditionally a forum, but govt opens it up for speech – example, school
basement on election day – strict scrutiny
Page 9 of 12
9
SPRING 2014
GILMER
CONSTITUTIONAL LAW II
iv. Strict scrutiny for public forums (traditional and designated):
a. Regulation must be content neutral, unless content restriction can survive strict scrutiny
b. Regulation must be only time/place/manner – intermediate scrutiny because content neutral
• Content neutral
• Significant government interest
• Leaves open ample alternative channels for speech
• Hill v. Colo. (restriction on speech within 100 feet of health facility is content
neutral, serves govt interest in protecting people seeking health care, plenty of
alternatives)
c. Compelling non-speech government ends
d. Narrowly tailored means – not necessarily least restrictive
e. If a licensing/permit system – disfavored – classic prior restraint
• Important purpose
• No discretion – clear criteria for licensing authority
• Procedural safeguards
• Prompt determination of license requests
• Judicial review of denials
v. Prior restraint – administrative or judicial order (gag order) forbidding certain communications
issued in advance of the time the communication is to occur
vi. Non-public forum – govt property not usually permitting speech – prison, military base, school –
govt may regulate speech. Test:
• Restriction is reasonable
• Restriction is viewpoint-neutral – not suppressing undesired views
a) Speech in schools – in general SC defers to govt in regulation of authoritarian environments
like schools, prisons, military – people are there involuntarily, they’re authoritarian, not
democratic, court has said need to defer to authority and expertise of administrators
• Tinker v. Des Moines SD (black armband protest). Tinker test:
• School must show compelling and substantial interest
• That speech would materially and substantially interfere
• With requirements of appropriate discipline in the operation of school
• Morse v. Frederick (Bong Hits 4 Jesus) – school may limit speech that can be
reasonably regarded as encouraging illegal drug use – not undifferentiated fear or
desire to avoid unpopular viewpoint – important to keep limits to druggie talk and
not actual political speech
• Tinker Rule – student expression may not be suppressed unless school officials
reasonably conclude that it will ‘materially and substantially disrupt the work
and discipline of the school.’
• Classic speech – Tinker Rule
• Lower value speech – sex, drugs, rock n roll – more deference to school
D.
TYPES OF UNPROTECTED AND LESS PROTECTED SPEECH
i. In general the following are outside 1st amendment protection and can be limited: incitement –
fighting words – true threats – obscenity – defamation
Page 10 of 12
10
SPRING 2014
GILMER
CONSTITUTIONAL LAW II
ii. Incitement of Illegal Activity – Schenk – anti-draft message poses “clear and present danger” and
is not protected – current test is Brandenberg test –
a. There must be actual evidence
b. That the speech is intended to produce
c. And likely to produce
d. Imminent disorder
iii. Fighting Words and Hate Speech – Chaplinsky -- fighting words are by their very utterance
inflict injury or tend to incite an immediate breach of the peace – Cohen narrows this – must be
directed at a particular individual to be outside 1st amendment – hate speech – cross burning
cases – RAV – cross burning – statute prohibits fighting words directed at particular groups – this
content distinction places the hate speech under 1st amendment – Virg. v. Black – cross burning
was an actual threat – statute bans cross burning with intent to threaten but no race -- content so
it’s okay as long as INTENT is there – beware of vagueness – “annoying” “offensive
iv. Sexually Oriented Speech – obscenity can be limited but not pornography
a. Miller Test to identify obscenity
• The average person, applying contemporary community standards would find the
work as a whole appeals to the prurient interest
• The work portrays in a patently offensive way sexual conduct specifically defined by
applicable state law
• The work lacks art/lit/sci merit as judged on a national standard
b. Government can regulate non-obscene “adult” matter
• Zoning laws to keep bookstores/theatres out of sight
• Bans on nude dancing and public nudity
c. Government regulation of obscenity – Stanley v. Georgia (private possession of obscenity is
okay, but not production, sale, receiving) – even private possession of child pornography (not
necessarily obscene) is not protected – policy is to protect the children, not morals
v. Profanity – generally protected – Cohen (Fuck the Draft) – without some compelling reason,
state may not criminalize display of a particular four letter word – one man’s vulgarity is another
man’s lyric – exception to rule that government cannot control words we use – broadcast TV and
radio – not cable or internet because you make an effort to access whereas the broadcast stuff
just comes into your home
vi. Conduct that Communicates – black armband – flag burning – cross burning
a. Non-speech conduct is analyzed as speech under the first amendment if
• There is intent to convey a specific message
• And, there is a substantial likelihood that the message would be understood by those
receiving it.
b. When speech and non-speech are intertwined, government can regulate non-speech even if
there is incidental limit on speech if meets O’Brien test (draft card guy)
• Within constitutional power of govt – why is government trying to regulate? To
control speech or for important non-speech objective
• Furthers an important or substantial govt interest
• The govt interest is unrelated to the suppression of free expression
• The incidental suppression of alleged 1st amendment freedom is no greater than
needed to further the govt interest
c. Flag desecration – Tex. v. Johnson – burned flag at RNC convention – test:
• Determine if action is expression (intent to convey msg – likelihood understood)
• Determine if state action is about suppression of free expression
Page 11 of 12
11
SPRING 2014
GILMER
CONSTITUTIONAL LAW II
•
•
If so, strict scrutiny
If not, more deferential O’Brien test
Page 12 of 12
12