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256 Cards in this Set

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Carolene Products
3 types of classifications that receive heightened scrutiny.
1) Those that are in facial conflict with specific rights guaranteed in the Const.
2) Those that inhibit democratic process
3) Those that classify on the basis of race, religion, or membership in a discrete or insular minority
Carolene Products (3)
1) Facial conflict with const.
2) Inhibt democrat process
3) Classify based on race, religion, or minority
Ends
Justification for the law
Means
Is classification related to an interest?
EP Questions
1) Are similarly situated people treated differently?
2) Who is discriminating?
3) Intentional discrimination?
4) Suspect class?
5) Protected interest or fundamental right?
6) Whats the standard?
7) How close are the ends and means?
Underinclusion (Means)
Burden fewer people than necessary to accomplish the objectives
Overinclusion
Burden more people than necessary to accomplish the objectives
Railway Express Agency Inc. v. New York
R.B. (Advertising on the side of trucks)
R- A law that is too narrowly drawn will survive R.B. b/c complete deference is given to the state.
NYC Transit v Beazer
R.B. A severely overinclusive regulation is valid if there is a rational basis behind it
Mass Board of Retirement v Murgia
R.B. No fundamental right to public employment.
Ends and Means
Both the ends and means must be analyzed using the appropriate standard.
What legislative objectives pass R.B.?
1) The legislatures actual purpose (deference to state)
2) Any conceivable legislative purpose
U.S. Dept. of Ag. v. Moreno.
R.B. does not allow Congress to harm a politically unpopular group.
Dissent- Deference to the legislature.
Romer v. Evans
(Const Am. denying protection to G & L's) R.B. with a bite.
Ordinance violates EP. When a non-suspect class is intentionally targeted.
Cleburne
(Tx ordinance against mentally retarded individuals). R.B. not a suspect class. Ends and means are problematic.
Strict Scrutiny (who receives this)
For suspect classes and fund. rights.
Strict Scrutiny (burden)
Govt must prove validity
Strict Scrutiny Std.
Must achieve a compelling interest (means) and be narrowly tailored.
How to show you are a suspect class?
1) History of discrim.
2) Immutable trait as a characteristic
3) The ordinance bears no relation to the ability performing in or contributing to society
4) Is a minority or politically powerless class
De Jure Discrimination
What the law says.
Purposeful discrimination on its face.
De Facto discrimination
What happens in real life.
Discrimination not on its face.
Types of De Jure Discrimination
1) Statute that is facially discriminatory.
2) Neutral law that is administered in a discriminatory fashion.
3) Neutral law but there is a discriminatory motive and discriminatory effect.
Wa. v. Davis
(Literary test for A-A's on police exam)
R- Disproportionate impact is insufficient to prove an E.P. violation.
Arlington Heights.
(White suburb denied access to A-A's)
Test. 1) Disproportionate impact.
2) Historical background
3) Events leading up to the decision
4) Departures from normal procedural sequence
5) Legal/Admin history
Look at all the factors.
Arlington Heights Burden.
Requires a prima facie showing.
After prima facie, burden shifts to govt. Must show by PPE. If no PPE, use R.B. If PPE, use S.S.
Feeney
R- (law preferring vets over non-vets) Inevitably or foreseeability of a discriminatory result is not proof of intent. R.B.
Plessy v Ferguson
Separate but Equal
Plessy Dissent
Harlan: Const is to be color blind, race is a suspect class.
Brown v Board of Edu.
Separate is not Equal. Segregation is not narrowly tailored to a compelling interest.
Affirmative Action Std.
Use S.S.
Bakke
(Med school case UC Davis) Std. S.S. because the rule affects based on race.
Look at the ends and means.
Not narrowly tailored or serves a compelling interest.
May race be a deciding factor in admissions?
Yes, but not the determinative factor.
Richmond v Crosan
(Required contracts to minorities)
Not narrowly tailored or serves a compelling interest. Need evidence to support the ends and means.
Adarand.
Section V of the 14th Am gives govt the power to impute EP on the states.
R- Remediation of express discrimination is a compelling interest for a race-based class.
Grutter.
(UM Law Critical Mass Case)
O'C: Narrowly tailored does not require exhaustion of every race neutral alternative. Requires good faith of workable race neutral alternatives.
Grutter (M & E)
Means: Narrowly tailored system; not a quota.
Ends: Designed to correct racial inequality
Gratz
Fails because race is the main factor and there is a quota.
Grutter and Gratz stds.
1) Race can be considered with other factors
2) Critical mass is not a quota
3) Diversity OK; Separating races are not.
Parents Involved
(Assigning students to schools based on race)
Ends: Racial balancing is not a compelling state interest.
Means: Not narrowly tailored.
Need evidence it would succeed.
3 reasons you can use race-based regulations under S.S.
1) Remediation of past intentional discrimination.
2) Diversity
3) Avoiding racial isolation in society
Alienage
The legal status of someone in the U.S.
Sugerman
(Banned all aliens from employment in civil service)
Carolene Products applies because aliens have no Political power. S.S.
Dissent- Const says citizens and aliens are different. Should be R.B.
Intermediate Scrutiny classes
Gender, Illegitimacy, Alienage.
I.S. Questions
1) Burden on govt to prove validity
2) Are the parties similarly situated
3) Men and women being treated differently
I.S. Std
Classifications for quasi-suspect classes must serve
1) Important govt objectives and
2) must be substantially related to achievement of those objectives
Craig v Boren
(Allowed 18 yr old women to buy beer, not 18 yr old men.
Means: Maleness is not a valid proxy. No evidence this would reduce accidents.
Ends: Safe roads are a compelling interest.
H- Overbroad. Not ok to punish 100% of men for the actions of 2%.
Michael M v. Superior Court.
(Whether its an EP violation if only men can be charged with stat.rape)
Ends: To prevent pregnancies via rape.
Means: Individuals are not similarly situated.
Std. I.S. (weak)
Rostker v Goldberg
(EP violation for not drafting women)
Ends: To keep women out of combat
Means: Men and women not similarly situated.
H- Defer to Congress
Nguyen v INS
(Citizenship to children of citizen mothers but not automatically if you only had a citizen father)
H- Children are not similarly situated.
Ordinance upheld.
VMI
(Only males could attend)
Ends: Unique educational opportunity but no equal for women.
Means: No place for women to go that was equivalent.
H- No inherent difference in men and women.
VMI Standard
Ginsburg: Sex based classifications must undergo skeptical scrutiny and will be upheld only if the state demonstrates an exceedingly persuasive justification.
No longer deferential to stereotypes.
Need a super-compatible program to VMI for this to be acceptable.
Illegitimacy Std.
I.S. b/c it is an immutable characteristic.
1) History of Discrim.
2) Social Stigmatization
Fund. Rights Std.
S.S.
Fund. Rights under EP
Fund. rights analysis enables the court to apply S.S. to legislation involving a non-suspect class.
Types of Fund. Rights
1) Those found in the Const.
2) Rights that involve Substantive Due Process
3) Fund. rights not found in the Const. and not recognized by DP.
Voting, Travel, Access to judicial system.
Suspect Classes
R.A.N.
Race
Alienage
National Origin
To be a suspect class
A) Carolene Products
1) History of discrim.
2) Immutable Trait
3) Powerless class
Lawrence v Texas
(Sodomy law)
G & L are not suspect classes.
This legislation just wanted to harm a specific class.
Even under R.B. there is no rational govt objective.
Anderson v King Co.
(Whether Wa. May limit gay marriage)
H- Not a suspect class.
Std. R.B. Deferential to the state.
Ca Prop 8
(Disallowed gay marriage)
No evidence displaying gay marriage is bad. They already have every other right.
This is a suspect class. 1) History of discrim, immutable, politically powerless. Use S.S.
G & L Std. for U.S.
G & L are not a suspect class but states may approach it differently. You need to show animus or an irrational statute to overturn R.B. legislation.
Chicago v Mosley
(Barred all labor picketing)
Std. S.S. because free speech is infringed. A fund. right.
San Antonio v Rodriguez
(Financed schools through property taxes)
Is there an EP violation?
Suspect class? Fund Right?
No. Poor people are not a suspect class.
Std. R.B. Edu is not a fundamental right.
Plyler v Doe
(Refused alien children an education)
Std. is Weak I.S./R.B. because there is animus towards the immigrant children. They have no political power.
Harper v Va
(1.50 poll tax)
H- Wealth is not a proxy for voting.
Kramer
(Limited school elections to property owners or parents)
Ends: Ensuring interested participants in elections
Means: didnt show this was necessary to achieve the goal. Not narrowly tailored.
Crawford v Marion County
(Need an ID to vote)
Ends: To prevent voter fraud
Means: Requiring a free ID.
R.B. P has burden. Minimum burden even though there is an absolute denial
Reynolds v Sims
(Vote Dilution)
1) Carolene- people's votes that are diluted and have no recourse.
2) E.P. requires vote not be diluted.
3) Similarly situated people are treated differently.
Std. S.S. voting is more than casting a ballot
Davis v Bandemer
(Gerrymandering: R redrew lines to dilute D's impact)
H- Boundaries need to consistently degrade a voter's influence. Outcome is diluted, not the vote
1) Need intentional discrim
2) An actual discriminatory effect
3) Harm if it substantially disadvantaged a person's vote
Vieth
(Gerrymandering)
This is a PQ.
Kennedy: Take these cases on a case-by-case basis.
Shaw v. Reno
(State created a second majority black district)
H- This is a racial stereotype.
Std. S.S.
May draw lines to compact districts of contiguous territory
or maintain integrity of political subdivisions.
Access to Courts
1) No const right to appeal.
2) 6th am. criminal trial right.
3) 7th am. civil trial right.
4) Violation of D.P.= denial of hearing
5) Violation of E.P. = differential treatment.
6) Courts want to see the degree of burden.
Griffin
(Criminal filing fee)
H- No charge for an appeal of a criminal conviction.
Douglas
H- Counsel is required on 1st appeal.
Ross
H- Not required to provide counsel on appeal to the state s. ct.
MLB
(2K for a trial transcript)
1) Classification? Wealthy v Poor.
2) Nature of denial? Absolute
3) Nature of parent/child? Fund. right
4) Std. S.S. fund. right to children. E.P. violation. Similarly situated people are treated differently.
Right to travel
1) Right to travel: Basic EP
2) Right to equal treatment in other states: P & I Clause
3) Right to establish residency in another state: P & I Clause
Bonafide residency requirements std.
R.B.
Drivers license and Instate tuition stds.
R.B.
Right to travel questions
1) Is this a restriction on travel?
2) Ask if this is a bonafide residency requirement?
Saenz v Roe
(State required residents to stay for a year and receive less benefits)
H- Congress may not authorize states to violate citizenship clause.
Once a person is a citizen, he must receive P & I protection.
Civil Rights Cases of 1866
Created 14th Am. to protect citizens from states.
Only applies to state action; not private wrongs.
Enabling clause does not authorize Congress to regulate private conduct.
Cannot be justified as an exercise of 13th am. (Power to determine the badges and incidents of slavery).
3 ways the actions of a private individual may be attributed to the state.
1) Govt may delegate its power to perform a public function to a private person
2) Govt may become so inextricably entangled with the private person that their separate identities are lost
3) State may so coerce or encourage the private action that the private actor is seen to have lost its presumptive power of voluntary choice, the act is directed by the state.
Const's protection of individual liberties
Applies to the actions of the govt, not private actors.
State action
Private individuals who are clothed with some type of state objective or authority of the state
Public Function Questions
1) Character of the action to determine if the state delegated a public function to a private party
2) Is there regulation or funding?
3) Focus on character/activity of the private actor
4) Is there entanglement?
5) Is state encouraging this decision
6) Regulation or funding
7) Acquiescing?
Marsh v. Al.
(Company town wouldnt allow Jehovah's witness)
R- The more a town opens up their property, the less the town can restrict the rights of the people.
Marsh v. Al. Jackson
Jackson: Public function doctrine is limited to when private party is granted authority and power traditionally exclusively reserved for the govt.
Jackson v. Metro
(Termination of electrical service due to non-payment)
H- Just b/c a state grants a monopoly, insufficient to constitute state action.
R- State knowledge, acquiescence, state funding, regulation are insufficient to constitute state action even when all 3 are needed.
To have public function:
1) Const or statutory authority
2) Exclusively done by the govt.
3) Traditionally done by the sovereign powers of the govt.
4) Must show state agrees with the monopoly
5) Must expressly approve of the termination
Lloyd
R- Privately owned shopping centers could be treated as public only when that property has taken on all of the attributes of a town.
Flagg
(Lien on a warehouse for non-payment)
R-No state action b/c it is not exclusive to the govt.
Rendell-Baker
(Private school with state funding)
R- Funding and govt services, but still not enough for state action.
Blum
(Kicked people out of nursing home)
R- No public function b/c not a job of the state.
Public function doctrine
Very limited after Jackson, Rendell, and Blum
Inextricable Entanglement
Inability to identify individuals because they are so entwined.
Wilmington v Burton
(A-A wasnt allowed to eat in a coffee shop)
Args. for no state action: no public function, no delegation, no approval by govt.
Arg for state action: Building was dedicated for public use and govt functions.
H- The coffee shop was integral to the parking structure.
Brentwood Academy v TSAA
(TSAA full of school employees)
H- Pervasive entwinement of school officials in the association.
This was a traditional function of the govt.
Entwinement from top down.
Entwinement v Entanglement
Entwinement
1) Not always indispensable qualities
2) Identity that could be entwined with public and private functions
Entanglement
1) Indispenable qualities
2) Involves 2 distinct entities that become involved.
Luger
(State law allowed attachment of debtor property)
H- State action. Writ had to be signed by the sheriff.
Encouragement/Coercion
But for the state's encouragement and action, this would not have taken place.
Shelley v Kraemer
(Restricted covenant against A-A's purchase in a neighborhood)
R- Judicial enforcement of racially restrictive private covenants against 2 unwilling parties constitutes state action.
Congress' power under the enabling clause. Section 5 of the 14th Am.
Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
13th am. Sect 2
14th am. Sect 5
15th am. Sect 2
Alfred Mayer
R- 13th am. is effective against private discrim.
13th am. declared no slavery.
Slavery was a private property issue.
Guest
(A-A soldier was lynched, police lied)
R- Section 5 allows Congress to enact laws to prevent conspiracies that infringe on 14th am. rights
3 levels of congressional enforcement power
1) Parallel; Strictly remedial.
2) Non-parallel. Remedial, but not strict.
3) Not remedial. Independent.
Parallel; Strictly remedial.
Congress enacts legislation that merely remedies a const. violation as determined by the court. Matches what S. Ct. says.
Non-parallel. Remedial, not strict.
Congress determines that it can enact a greater prohibition in order to ensure that the core const. right is protected. Need fact-finding.
Not remedial. Independent.
Congress has independently made its own determination of what the Const. means.
Rome v U.S./Mobile v. Bolen
(At large voting systems that hindered A-A's)
R- Congress has the power to use the Voting Rights Act to ensure that A-a's can vote.
Prophylactic power to enforce purpose and meaning of the substance.
Brennan's ratchet footnote
Congress can expand but not contract the substantive scope of the 14th am.
Section 5 grants Congress no power to restrict, abrogate, or dilute those guarantees.
Katzenbach v Morgan
(Test for the right to vote)
R- Congress might have the authority to determine whether literary tests are const.
City of Boerne v Flores
(Church wanted to add to itself; city said no)
-Congress has the power to remedy a known wrong.
Congress has non-parallel enforcement power.
However, in order for a law to be remedial it must be congruent and proportional between the injury to be prevented or remedied and the means adapted to that end.
Congruent.
Legislation must have a tie to the violation of a core constitutional right.
Proportional
The remedied legislation must be narrowly tailored to specific and factually established constitutional violations.
Or v. Smith
(Native Americans charged for using peyote; said this was religious discrimination)
R- R.B. Congruence- Incidental impact
Proportionality. Narrowly tailored
U.S. v. Morrison
R- Congruence- Private discrim is not tied to a constitutional right.
Proportionality- Too broad.
Al v. Garrett
(2 individuals were not given ADA protection)
Need to show historical discrimination against the disabled
Congruence: No showing of const. violations
Proportionality: Not proportional if there is no relation to const issues.
Hibbs
(Congress wanted to prevent gender discrim under FMLA)
Congruence: Specific pattern of discrim
Proportionality: FMLA is proportional to historic violations
R-I.S. b/c of VMI gender based. Exceedingly persuasive standard.
2nd am.
1) Operative clause. Right to bear arms
2) Prefatory clause. Reaffirming there are state militias.
Dist. of Columbia v Heller
2nd am. applies to the states.
Individual right. Congress cant ban militias.
UNsure???
Free Expression.
1) Is this speech?
2) What type of ordinance is this?
Content-based, neutral, viewpoint?
1st Am.
Congress shall make no law abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the govt for a redress of grievances.
3 types of speech regulations
1) Content- Govt regulates speech on its content. S.S.
2) Content neutral/TPM- Regulates speech regardless of its content. I.S.
3) Viewpoint based- Not allowed except in a non-forum.
Govt regulations of private speech
1) Prior restraints
2) Content-based
3) Expressive related conduct
4) TPM
5) Access to property
Govt control of private speech
1) Access to property
2) Access to program/funding
3) Access to info
4) Govt employees
5) Govt messages
Is free speech an absolute right?
No
1) All free speech is presumptively valid
2) Balanced against the govts interest vs that expression
Freedom of speech justifications
Ensures openness
Important to know the truth
Virtues of self-restraint/tolerance
Marketplace of Ideas
Truth always triumphs over persecution
Ultimate good idea is a free state of ideas
Let is all out there
Greer v Spock
(Prez candidate was refused access to military base)
H- Govt property. Cant express view here.
Overbreadth theory
Better to let some speech go unpunished than punish rightful speech.
U.S. v. Playboy
(FCC said PB had to block or scramble channels)
H- Content Based.
Std. S.S.
R- There was a less restrictive means. This was too overbroad
O'Brien
(Convicted for burning his draft card)
Is this speech? Yes, a reasonable observer would say there was intent.
-Content neutral law.
Std. I.S.
Test- A content-neutral regulation is valid if the restriction on speech is "no greater than is essential to further a significant govt interest.
Asheworth
R- Overbreadth doctrine prohibits govt from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process
TPM std.
Use O'brien-Ward-Clarke std.
Ward Test
1) Regulation must be justified without reference to the content of the regulated speech
2) It must be narrowly tailored to serve a significant govt interest.
3) Must leave open ample alternative channels for communication of the information.
O'Brien Test.
A content neutral regulation is valid if the restriction on speech is not substantially broader than necessary to further a significant govt interest.
Clark Test
The speaker's alternative does not have to be anywhere near as effective as the chosen method.
Arcara
R- O'Brien-Ward-Clark std only applies when the regulation targets conduct with a significant expressive element that drew the remedy in the first place
Johnson
(Flag burning statute)
Content and viewpoint based.
Std. S.S.
Ends: no compelling govt interest
Means: Govt allows some burning of flags. Not narrowly tailored
Eichman
Flag burning statute
S.S.
Content and viewpoint based statute.
Not protected speech
1. Fraudulent/Misrepresentation of Commercial Speech.
2. Commercial Speech that proposes an unlawful activity.
3. Clear and Present danger of Imminent Lawless Action.
4. Fighting Words.
5. Obscenity
6. Non-obscene material directed to children.
RAV v St. Paul
(Kids placed burning cross on A-A's yard)
H- Cant selectively prohibit fighting words involving certain subjects (viewpoint discrim)
Schenk v U.S.
1st clear/present danger case.
1) Whether the words used create a) clear and present danger; b) will bring out substantive evils that Congress may prevent; c) question of proximity and degree.
Whitney
(Forbade membership in an org. advocating violence)
Brandeis: Concur. Value in free speech. Legislature should not be able to determine a law's validity. The evil needs to be imminent.
Clear and Present Danger Brandenburg Test
Test is advocacy of violence can be prohibited only when 1) it is directed to inciting imminent lawless action and 2) it is likely to produce such action
Clear and Present Danger Claiborne Hardware Test
Further than Brandenburg. Must show that the speech would advocate and result in immediate violence but violence must also materialize.
Fighting words
Non-Speech.
Protected, but very limited.
Chaplinsky
(Jehovah arrested for yelling at a crowd)
R- Fighting words receive no 1st am. protection.
They are 1) likely to provoke a violent response; 2) may inflict injury with their utterance.
Cantwell
The 2nd prong of the Chaplinsky test must look at the context of the words.
Gooding Test
To fall within fighting words, the speaker must utter words 1) intending to cause and having a direct tendency to cause acts of violence; 2) by the person to whom, individually, the remark was addressed. Must be made to an individual
Hostile audiences
Speech or non-speech?
Non-Speech.
Terminiello
(Ordinance against speeches to hostile audiences)
H- Speech that stirs the audience to anger or invites dispute is protected under the 1st AM.
Feiner
(Speech to A-A's against Prez)
If speaker's conduct constitutes incitement to riot, arrest is valid.
Look for imminence of greater disorder coupled with speaker's defiance of police officers.
Tx v Johnson
(Flag Burning)
Speech or conduct?
Look at context. It is speech.
R- One function of free speech is to invite dispute and that it may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction.
Edwards, Cox, Gregory
Unprotected speech must have 1) Immediacy of violent reaction and 2) police must have been unable to control the crowd. The context is important.
Offensive speech. Protected or not?
Protected speech
Cohen v Ca
(F the draft)
Outside the home, the govts power to prevent intrusive expression must be sharply limited if it is not to become an instrument for repression of dissidents
Cohen v Ca Reasons
1) Exposure was limited
2) Not a hostile audience
3) No captive audience problem
4) They could avert their eyes
Disagrees with Chaplinsky
Gooding
R- General insults are insufficient
Needs to be an individual
Immediate unlawful activity must follow
Hate Speech. Protected or not?
Protected Speech
Skokie
(Nazis marched through jewish neighborhood)
1) Under 1st am., no such thing as a false idea.
2) Entitled to be in the marketplace of ideas
3) Cohen makes it clear that a violent reaction cant be presumed. It wasnt a captive audience
4) IIED is ok if it is in the course of public action and discourse
5) RAV says you cant do viewpoint discrimination
6) Brandenburg shows that advocating genocide is not a basis for suppressing Nazi activities.
Attacking Skokie
1) Claim this is non-speech
2) Incitement
3) FW
4) Leads to unlawful activity
Why no sui generis law
Pro. No value in society
Pro. Helps stigmatized groups
Con. Govt telling us what we can/cant say.
RAV v St. Paul
Prosecuted for burning a cross.
H- Cant punish disfavored ideas. Content based.
Std. S.S.
Attack this under a FW analysis
Va v. Black
(Statute prohibited cross-burning with an intent to intimidate)
True Threats- not protected.
R- State may prohibit the communication of a serious expression of an intent to commit an act of unlawful violence to a particular individual.
Obscenity
Speech or non-speech
Non-speech.
Paris Adult Theatre
(Girly theatre with signs)
Society can determine the moral tones regarding whether speech is valueless or not.
Miller Std.
1) Average person, applying contemporary community standards would find that the work
2) Taken as a whole, appeals to the prurient interest, the work describes in a patently offensive way, sexual conduct specifically defined by the applicable state law
3) The work taken as a whole, lacks serious literary, artistic, political, or scientific value
4) Community stds are determined by grand juries; literary stds are national.
Ferber
H- Child porn is not speech.
State can ban child porn w/o establishing that it is legally obscene.
Ashcroft
(Banned porn images of adults who looked like children)
H- This is a ban on communication.
No victims.
Could be obscene, low value speech.
Use Miller Std.
Secondary effects (type of speech?)
Low value speech
Secondary Effects rules
Can allow for content based determination of what speech should be regulated but the regulation itself cant be content based
Restrictions must be content neutral; narrowly tailored and leave ample alternative channels for communication
Young v American Mini Theatres. 1st secondary effects case
(Zoning based exclusion)
Content based ban. These materials have lesser protection than other materials.
This is a valid zoning legislation.
City of Renton v Playtime
(Statute combating secondary effects of adult theatres)
H- Content based statute that merges to content-neutral.
Std. I.S. O'Brien.
Test is whether the ordinance is designed to serve a substantial govt interest and allows ample alternative avenues of comm.
Doesnt matter there arent alternative avenues of comm.
Boos v Barry
H- Govt can only regulate the secondary effects under Renton
Listeners reactions are primary effects.
Public Nudity City of Erie v Pap's A.M.
H- Used secondary effects doctrine to go after a public nudity dance club. Upheld ordinance disallowing it.
Pacifica
(Filthy words on radio at 2 am)
H- Lesser value speech
Captive audience
On notice not to put it on the radio
Opt in or opt out materials
Opt out materials are ok; opt in are invalid.
Fox v FCC
Overturned.
H- Indecent speech is protected by 1st am.
There were no manageable stds.
Reno
(statute prohibiting indecent or offensive speech over the internet)
H- Offensive speech is protected.
Content based bans must pass S.S.
No alternative modes of communication on the internet
Brown v. Ent. merchants
(Prohibited minors from purchasing violent vid. games)
Content-based regulation
Must pass s.s.
Libel/Defamation rules
1) There must be actual malice against a public figure.
2) Against a private figure, to collect compensatory damages, the plaintiff must at least prove negligence. To obtain punitive damages, the P must prove New York Times malice.
NYT v Sullivan
(NYT wrote an article about an Al. shefiff)
R- To sue for defamation, must show actional malice and that it was directed at somebody
BOP is on the P to prove by clear and convincing evidence.
A std. would chill speech
Gertz.
(Private figure defamed)
H- Neg std applies to false statements against private figures
For punitive, must show actual malice and injury.
Being well known does not make you a public figure.
Hustler
IIED.
H- 1st Am. Intentionally inflicting emotional distress on public opponents is a time honored tradition. 1st Am. prohibits such liability.
Snyder v Phelps
IIED. Denied because they were generalized statements. No actual injury
Commercial Speech. Std?
Typically R.B.
VA Pharmacy
(Va banned advertisements of prescription drugs)
R- Purely comm. speech is entitled to some 1st am. Protection.
False or misleading advertising receives NO 1st am. protection.
Central Hudson.
(State utility commission banned promotional advertising by utilities)
1) Must determine whether: commercial speech is protected by 1st Am. under VA pharmacy?
2) Govt interest is generally substantial
3) The regulation directly advances the govt interest
4) The regulation is not more extensive than necessary.
Need to go through the 4 factors.
Doesnt have to be the least restrictive means.
Liquor 44.
Modifies CH's 3rd element.
Changes directly advances to significantly advances.
A higher std.
Public Forum Doctrine
For Content based restrictions, use S.S.
For Content neutral, use I.S.
Traditional Public Forum
Open to all subjects and speakers to the fullest degree protected by the 1st Am.
Any ordinance must further a compelling interest and be narrowly tailored.
Traditional Public Forum TPM restriction if content-neutral.
Use O'Brien. Narrowly tailored to serve a significant govt interest; open ample alternative channels of communication.
Designated Public Forum.
Govt property that otherwise does not meet the definition of a trad. public forum, but has been affirmatively opened to the public.
For content-based: Must be narrowly drawn to effectuate a compelling state interest.
Designated Public Forum TPM
TPM O'Brien Std if Content-neutral
Limited Public Forum
Same as a designated public forum, but the govt chooses to open the forum only for certain groups.
Use O'Brien if it fits the govt's goal.
R.B. if it does not.
Non-public forum
Not a public forum at all and maybe closed to all or some speech so long as the closure is reasonable.
R.B. applies
Content-based restrictions are valid.
Viewpoint based restrictions are not.
Not a public forum
When the forum is not open to just anyone. Hs graduation.. etc.
Content-based v Viewpoint-based
Content based- Cant talk about drugs
Viewpoint- Cant advocate for a certain drug
Hague v CIO
Public streets and walkways have been immemorially held in trust for public discourse
ISKCON v Lee
(Krishnas in airport)
H- Not a trad. public forum
Solicitation for money is prohibited. Leafletting is permitted
Perry Edu
(Teacher union wouldnt allow other union to use their mailboxes)
H-Nonpublic forum.
Because it is a non-public forum, R.B. applies.
Content-based restrictions are valid.
Dissent- this is a viewpoint based restriction.
Kokinda
(Not allowed to hand out pamphlets on post office sidewalk)
R.B. can make content-based restrictions in a non-PF.
Cornelius
H- to create a public forum, the govts purpose must be to dedicate its property to speech purposes.
Tinker v Des Moines
(Students wore armbands protesting Vietnam)
H- Schools need to make a reasonable showing that the student speech would materially and substantially interfere with the requirement of appropriate discipline in the operation of school
Tinker Test
1) Must materially and substantially interfere with school
2) Does the speech impinge on basic social values
3) Does it have vulgar or lewd speech
4) Is the penalty unrelated to a political viewpoint?
If yes, then the speech is not allowed.
Bethel
(Delivered a provocative speech to assy)
H- School can choose the message they put out.
Balancing test: Teaching social values against unpopular controversial views.
More deferential than Tinker
Hazelwood
(School wanted to censor newspaper)
Quasi-curricular activity.
H- Schools are entitled broad control to ensure students: a) learn the appropriate lessons; b) are not exposed to inappropriate material given their ages; and c) do not mistakenly attribute the viewpoint of particular speakers to the school.
Did this materially and substantially interfere with school? No.
Lewd or offensive? No.
Part of curriculum? Yes. Prohibited.
Morse v Frederick.
(Bong hits 4 Jesus)
H- School can not endorse illegal drug use.
Court is headed towards more discipline.
Public Employee speech.
Teachers do not shed their 1st am. right. Speech is viewed the same as a private employer.
Teachers have no 1st am. protection for curriculum decisions.
Pickering.
(Criticized the way he school was run)
Test- Court views this test as finding a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.
Connick v Myers
(Questionnaire about DA)
In order to be protected speech, this must be a matter of public concern. This was a private concern.
Garcetti
(Disciplined for an inter-office memo)
H- Actions in day-to-day business are not protected under the Pickering balancing test.
R- Public employees do not have 1st am. protection for speech pursuant to their official duties.
Public employee speech 2 step process.
1) Private or official capacity (nature of job duties)
2) Public interest or private interest.
A) If Q1 is no, you dont ask 2nd question.
B) if Q2 is yes, you ask 2nd question.
Public sponsorship.
Govt can control message attached to subsidization.
Rust v Sullivan
1) Just b/c you have a right to abortion doesnt mean you have a right to public funding.
H- Congress is buying this benefit, therefore it can control its message.
But, the govt cannot condition a benefit upon the release of your free speech rights.
Speiser
(Govt wanted to restrict vet benefits)
H- Govt subsidy programs are unconstitutional if they are aimed at the suppression of dangerous ideas.
Const. Conditions rule.
If govt restrictions are on the grant recipient, it is likely unconstitutional.
If it is on the program, it is likely constitutional.
The more the speech is regulated, the more likely this is unfunded.
Rosenberger
(UVA excluded religious speech on newspapers)
H- Impermissible viewpoint discrimination.
NEA v Finley
(Only granted arts funding to certain paintings)
H- Not viewpoint discrim. because they are only promoting a certain viewpoint.
3 Rights of Associations.
1) Positive right to association.
2) Compelled association.
3) Compelled Speech.
Roberts v Jaycee
(Wanted only men in their club)
H- Compelling national organizations to accept women would not violate its const. rights.
If a govt interest, use S.S.
2 types of association interests
1) Intrinsic right of association. Intimate human relationships.
2) Instrumental right of association. Associations engaging in speech.
Boy Scouts v Dale
(Whether boy scouts had to have a gay scoutmaster)
H- Intrinsic right of association?
No, these are strangers.
Intrinsic right of association. Passed because it is expressive.
Hurley
H- Cant force someone to adopt a message they dont endorse.
CLS v Martines
(CLS disagreed with gay rights, their funding was based on agreeing with Hastings' policies)
Limited public forum.
R.B./ or I.S.
Court held up legislation.
Southworth
H- Can charge students an activities fee used to fund a viewpoint neutral program to facilitate extracurricular speech.
Religion. FE and EC.
Religion is distinctive and requires govt to treat religion distinctively.
What is a religion?
Functional approach.
Does it have a transcendental function.
Does it take the place of something that is religious.
Free exercise problems
1) Laws that are neutral on their face but still have a disproportionate impact on religious practice.
2) Laws that are in fact discriminatory that target religion
Sherbert v Verner
(7th day adventist wouldnt work on Sat.)
H- Substantial burden on religious practice requires S.S.
Denial of benefits violates FE.
Emp Div v Smith
(Native americans fired for using peyote)
Test: If prohibiting the exercise of religion is not the object or target but merely the incidental effect of a generally applicable and otherwise valid provision.
R.B.
Church of the Lukumi
(Ordinance that outlawed animal killings)
H- Face of statute discriminated against religion.
Used Arlington Heights factors.
1) Neutral on its face, but directed at religion
2) Animus
3) S.S.
Everson v Board of Edu.
(Reimbursement of parents for transporting kids to school)
H- Treat religion/non-religion fairly
Money is given to parents. Secular
Direct Aid Cases
Aguilar-Agostini-Mitchell
Indirect Aid
Moeller-Zelmon
Lemon Test
Will fail a govt program if it meets any of the 3
1) Law has a sacred purpose
2) If it has the effect of advocating or inhibiting religion
3) Excessive govt entanglement with religion
Aguilar
(Public school teachers in parochial schools)
H-Presence of public employees expressed endorsement of religion
Entanglement between public employees and religious employees.
Agostini
(Overruled Aguilar, same case)
H- Didnt believe teachers would deliver a religious message. Entanglement prong of Lemon is fading.
Mitchell v Helms
(Provides aid to parochial schools)
H- Aid available to all schools on a non-discriminatory basis
Zelman
(Voucher program)
H-Program had a secular purpose.
Program of private choice.
Lots of alternatives
Endorsement Test
O'C. E/C prohibits govt from making adherence to a religion relevant in any way to a person's standing in the political community.
Although entanglement can result from this connection between religion and political standing, the primary and more direct infringement is govt endorsement or disapproval of religion which sends a message to nonadherents that they are outsiders, not full members of the political community and an accompanying message to adherents that they are insiders, favored members of the political community
Coercion
Test (narrow) Govt may not coerce anyone to support or participate in any religion or its exercise.
Van Orton v Perry
(10 Commandments outside of capital)
H- if you take all the monuments together, it doesnt look like endorsement.
Std. What the minority sees, not the majority.
Burger
(Nativity scene in public park)
H- Endorsement test. Look at entire message.
McCrary
(10 commandments in courts)
H- Motive showed that 10 commandments was their only goal
Lee v Weisman
(Grad prayer)
H- This is forced viewing. Kids cant avert their eyes.
La Teacher
(Allowed prayer in the last 5 minutes)
H- Unfair to kids who dont want to pray.
Statute must satisfy PEG or else it violates the Establishment Clause
P – The state statute or activity must have a primarily secular Purpose as opposed to
the purpose of advancing or inhibiting religion
E – The law’s primary or inevitable Effect must neither disapprove of nor endorse
religion AND
G – The law or conduct can’t foster excessive Governmental religious entanglement
A content-neutral regulation must be a reasonable SON of the 1st amendment
S – The restriction must be justified by a Significant governmental interest
O – The regulation must leave Open ample alternative channels of communication
AND
N – The regulation must be Narrowly tailored to further the government’s goal, but
doesn’t have to be least restrictive means of doing so
All commercial speech restrictions with TANS are valid
T – Advertisements must be Truthful and concern lawful products and services
A – Governmental restrictions must directly and materially Advance the
government’s “substantial interest” in enacting the law (and there must be
“reasonable fit” between the state’s goal and the means used to achieve that
goal)
N – The regulation must be Narrowly-drawn and must not be more extensive than
necessary to achieve the government’s substantial interest
LAPS POP’S PAW is simply obscene, and is not constitutionally protected
LAPS – Lacks Literary, Artistic, Political, or Scientific value (determined by a
national standard, not local)
POPS – Patently Offensive Portrayal of Sex
PAW – Prurient interest appeal, in which the material tends to excite lewd, lascivious,
and lustful thoughts in a person of Average sensitivity; here, the Whole
material must be weighed by the court
A suspect class RAN for equal protection
R – Race
A – Alienage
N – National origin
Fundamental rights drink from the Equal Protection VAT
V – Voting rights
A – Access to courts
T – The right to Travel throughout the US
For an intermediate level of judicial scrutiny, use “IS” four times…
I – Illegitimacy
S – Sexes (genders)
IS – Illegal School-age children
IS – Intermediate level of judicial Scrutiny
IS – There must be an Important governmental interest, and the method chosen must
Substantially relate to achieving that int