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117 Cards in this Set

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Two ways speech can be abridged
"Prior restraint (presumptively unconstitutional), Subsequent punishment"
Level of scrutiny for 1st amendment rights
Strict scrutiny
Symbolic Speech Doctrine Test
"Speech can also include conduct that rises to the level of speech for first amendment purposes. Two part test:a) An intent to convey a particularized message with that conduct.b) A substantial likelihood that the message would be understood as intended.
List the Theories of Free Speech
"VDCIST - safety Valve funciton, Democratic self governance, Checking function, marketplace of Ideas, Self-realization, Tolerant Society"
Marketplace of ideas
"A metaphor based on economic ideas. All ideas, no matter how offensive come out, rational discussion, truth comes from debate."
Problems with Marketplace of Ideas theory
1)     Not all ideas have equal opportunity for exposure because of unequal access 2) oversaturation 3) debate isn’t irrational 4) debate can be emotion (hate speech)
Democratic Self-Governance Theory
Political speech is more privileged than private speech in order to promote self-governance.
Problems with Democratic Self-Governance Theory
1) Line drawing between private & public speech is difficult therefore statutes that protect political speech may be vague 2) Devalues other types of speech.
Self-fulfillment/Self-realization
Speech can be valuable to you as an individual regardless of whether it helps anyone else out.
The Checking Value of Free speech
Press acts as a watchdog – 4th branch of government
Problems with the Checking Value of Free speech
1)     Anyone can technically be a journalist 2) we don’t want to give the press more privileges so we compress Freedom of speech w. freedom of press.
The Safety Valve Function of Free Speech
People speak instead of rioting.
The Tolerant Society
We have a collective identity and Collective goodwill is achieved by tolerating the intolerant views of others.
Cohen v. California
"“fuck the draft.” Absent a compelling reason for its actions, the state cannot abridge the freedom of speech. No obscenity because people can avert their eyes, not captive. Fuck doesn’t conjure fucking in this context. Not fighting words b/c it isn’t directed at one person. Court emphasized how political speech demands great protection. This is viewpoint based censorship."
Unprotected Speech
"FITCOPVIC - Fighting words, Incitement to violence, True threats, Commercial Speech, Obscenity, Profanity, Variable Obscenity, Indecency, Child Porn."
Fighting Words Three part test
1)     Addressee: directed at a person or group. 2) abusive epithets or insults that are as a matter of common knowledge inherently likely to provoke a violent reaction when addressed to the ordinary citizen. 3) words must be evaluated in the context in which they are used to determine if it is likely that the addressee would react violently.
Chaplinsky v. New Hampshire
"“God damned racketeers” and a “damned fascist”. Heckler’s veto. Fighting words are “words which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” The Cohen Court suggested that “fighting words” must be Face-to-face, and directed at a person., Must be intended to provoke that person , They must provoke a violent reaction in a person of common intelligence. Only case where the SC has upheld a fighting words conviction"
Vagueness/Overbreadth
Vagueness: ordinary person wouldn’t know what it meant. Overbreadth: sweeps up too much speech so that protected speech is within the ambit of the statute.
Texas v. Johnson
"I. Texas statute that prohibits flag desecration. Rule: Flag burning is expressive conduct and not fighting words b/c no one would see it as a personal insult or an invitation to fight. However, when speech and non-speech elements are combined an important governmental interest in regulating the non-speech element can justify incidental limitations on first amendment freedoms. (DRAFT CARD)"
MODERN TEST FOR INCITEMENT TO VIOLENCE:
"1)     Lawless Conduct (Look for a statute) 2) Intent for lawless conduct (can be inferred from circs, look for express advocacy) 3) Imminence that lawless conduct will occur (Call for immediate law violation, Proximity & Degree of Harm) 4) Likeliness that lawless conduct will occur"
Schenck v. United States
Advocated obstructing the draft. Does it create a clear and present danger substantive evils that Congress seeks to prevent will occur? Proximity + Degree (Wartime Situation).
Brandenburg v. ohio
"KKK statement that if the government continues to suppress the white race they may take revenge. Test: can’t forbid speech that advocates the use of force or the violation of a law unless the advocacy is directed to inciting and is likely to incite imminent lawless . (Intent + Imminence, not conditional language)"
Cases that dealt with imminence
"Hess (we’ll take the fucking street later), NAACP “if we catch you going into those racist stores”"
Cases that deal with intent
"Hustler (orgasms of death, no intent b/c of warning), Olivia N. (no intent w/ plunger rape). Paladian Enterprises (hit man book could be held liable – had intent"
Attack Sequence for True Threats
1)     look for an individual or group that is threatened. 2) True threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. Intent to carry out the threat is not necessary. 3) Discuss JXD Split on Subjective/Objective 4) Discuss Political Hyperbole (Watts Factors)
JXD SPLIT on Intent for true threats
a) Subjective – Two approaches (1)Knowingly makes statement and intends to communicate threat or (2) Knowingly makes statement and intends to place someone in fear. B) Objective – D knowingly makes a communication that reasonable person finds threatening.
True Threat vs. Political Hyperbole
" (Watts Factors – LBJ Case) Political hyperbole is not a true threat. How to tell if it is a true threat or political hyperbole? 1) The audience’s reaction 2) The conditionality of the triggering event 3) The public nature of the speech 4) The backdrop of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open."
Planned Parenthood v. Am. Coal. Life Activists
Website dossier of abortion docs w/ wanted posters. Uses Subjective intent - The only intent requirement for a true threat is that the defendant intentionally or knowingly communicates the threat with the intent to intimidate. It is not necessary that the defendant intend to or be able to carry out this threat.
Virginia v. Black
Virginia law banning cross burning w/ intent to intimidate where cross burning is treated as prima facie evidence of intent. statute is overbroad because it enhances the probability of prosecution and potentially chills the expression of protected speech.
Miller v. California
"Unsolicited Mailer for adult goods. Obscenity test (3 prong, must prove all three 1) Whether the average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest. 2) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law. 3) Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. - Miller allows each state to determine if it is a community or a statewide standard. Thus, first amendment rights are different from state to state."
Should the miller test be changed?
"Given the changes in technology since Miller was decided, “contemporary community standards” poses a huge issue for those producing borderline obscene material. The community standards prong allows for different levels of 1st amendment protections in different jurisdictions."
Butler v. Michigan
Court held a law invalid that prohibited the sale of lewd material to everyone that might have an influence on youth. No children’s first amendment
Ginsberg v. New York
"A state can constitutionally prohibit the sale to minors (under 17 years of age) of material defined to be obscene on the basis of its appeal to them whether or not it would be obscene to adults. Policy: state interest in well being of kids, parents entitled to laws that help them raise kids."
New York v. Ferber
"Sale of child porn. If minors are involved in the sexually explicit conduct, it does not have to rise to the Miller test. The speech and harm are intrinsically connected. The only way to produce it is to harm somebody."
Policy rationales behind why child porn is unprotected
1) safeguard minors 2) permanent record 3) get rid of market 4) de minimus value
United States v. Knox
"Videos of not nude underaged girls. Nudity is not a requirement, lascivious exhibition could be scantily clad. Series of factors to determine if something is lascivious: a) Focal point of the picture b) Setting, is it sexually suggestive c) Is the child depicted in an unnatural pose d) Is the child depicted in inappropriate attire e) Is the child fully or partially clothed or nude f) Does it suggest sexual coyness g) Is it intended or designed to illicit a sexual response"
Ashcroft v. Free Speech Coalition
"The court invalidated the Child Pornography prevention act b/c it prohibited sexually explicit images that appear to depict minors but were in fact produced without using real children. NOTE: Under such facts, analyze as general obscenity under Miller. "
Osborne v. Ohio
"Possession of regular porn ok, Possession of child pornography can be regulated because it meets the interest of protecting children"
When can indecency and profanity be regulated?
"When broadcast over the public airwaves. 18 U.S.C. § 1464 - statutory proscription against “utter[ing] any obscene, indecent, or profane language by means of radio communication.” Because indecent speech is protected by the First Amendment, the government must identify a compelling interest when imposing regulations on speech and must use the least restrictive means necessary to further that interest. The FCC has shown that there is a compelling governmental interest in protecting children from indecent material in broadcasts between the hours of 6 a.m. and 10 pm. "
FCC v. Pacifica Foundation
"George Carlin’s monologue on the seven dirty words. SCOTUS upheld the ability of the FCC to prohibit and punish indecent language over television and radio. Policy: because broadcasts are pervasive, young people have access, can’t avert your eyes."
Two part test of indecency from FCC regs
"1)      Must describe or depict sexual or excretory activities or organs, and 2) Must be patently offensive as measured by contemporary community standards for the broadcast medium (Note this doesn’t include violence or racist comments or religious blasphemy.)"
What is patently offensive under FCC regs?
"(3      factor balancing test) 1) The explicitness or graphic nature of the description 2) Whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; and 3) Whether the material panders to, titillates, or shocks the audience."
What is Profanity under the FCC Regs?
"The FCC has defined profanity as “including language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.” Like indecency, profane speech is prohibited on broadcast radio and television between the hours of 6 a.m. and 10 p.m."
FCC v. Fox Television Stations
"Cher & Nicole Ritchie’s use profanity. Court upheld the act, but didn’t decide 1st amendment issue. Court notes that Children may be more likely today to hear these words than they were when FCC v. Pacifica was decided. Pacifica was decided at a time when technology was different."
United States v. Stevens
Crush video legislation applied to dog fighting case. No new category of unprotected speech. (Government wants a balancing test that essentially gets rid of low value speech) The statute is struck down because it is “overbroad” and potentially outlaws protected speech.
Va. State Bd. Pharmacy v. Va. Citizens Consumer Council
"Prescription drug price advertising. Held that advertisement of prices is protected speech, consumer’s interest in free flow of commercial info. Can have rsnbl regulations such as TPM restrictions, false or misleading advertisements."
Central Hudson Gas v. Public Service Commission of New York
"Electricial utilities advertising to stimulate use of electiricity. Court held commercial Speech is governed by Intermediate Scrutiny. Test: 1) First we must determine whether the expression is protected by the 1st Amendment, for speech to come within that provision, it at least must concern lawful activity and not be misleading. 2) Whether the asserted governmental interest is substantial. 3) If both inquiries yield positive answers, we must determine whether the regulation directly advance the government interest. 4) If the government could be served as well by a more limited restriction on commercial speech, the excessive restriction cannot stand."
44 Liquormart v. Rhode Island
"Statute preventing outside price advertisement of liquor invalidated. Less restrictive alternative methods were available to meet gov’t interest in keeping people sober. Purchases could be limited, Educational campaigns focused on drinking problems"
Prior Restraint
Presumptively invalid. Look for three exceptions from Near v. Minnesota. Person arguing for prior restraint must demonstrate an important concern of the highest order. (Kobe)
Near v. Minnesota
Publisher runs a series of articles stating the government is allowing their illegal behavior by gangsters. The trial court enjoined the newspaper from publishing. Rule: Prior restraints are presumptively unconstitutional. Prior restraints are allowed in three areas: 1) Military issues – obstruction of recruiting or reveal troop locations/movements 2) Obscenity 3) Incitement to violence
N.Y. Times Co. v. United States
" “Pentagon Papers” leaked about Vietnam War. SCOTUS held any system of prior restraints of expression bears a heavy presumption against its constitutional validity, thus the gov’t has a heavy burden of showing justification for the imposition for prior restraint. The government has not met that burden in this case. Different opinions suggest that there may be wartime exception but that isn’t present here. The need for the press to function as 4th branch is emphasized. High first amendment value as political speech."
Snepp v. U.S.
CIA tell all. Can contract away your first amendment rights.
Bartnicki v. Vopper
"Rule: A station cannot be held liable for broadcasting information that was illegally obtained where the subject of the information was a matter of public concern and the broadcaster did not participate directly in the unlawful attainment, even when the broadcaster knew it was illegally obtained."
Nebraska Press Ass’n v. Stuart
"Restraining order issued by lower court preventing press from publishing info about trial. Balancing 1st A w/ 6th A. Does the possibility of corrupting the jury justify abridging free speech? Three part framework to examine: 1) nature of press coverage 2) less restrictive measures (change of venue, juror screening & instructions, gag orders for attorneys), 3) will a restraining order actually prevent the information from getting out. Court invalidates the order because there are less restrictive measures."
Kobe Case
"Media lawfully obtained truthful information about rape vic’s identity (matter of public concern). The burden therefore falls on the other side to prove there is an important concern (highest order). The court found defending the privacy of the victim's prior and subsequent sexual history was a ""state interest of the highest order.”"
Attack outline for Examining Content-based vs. content neutral Speech regulations
"1)      Is it a public forum, quasi public forum? (If public forum, subject to 1st amendment protections, If quasi-public forum, state can regulate speech in a reasonable manner consistent with past practices as long as it isn’t an effort to suppress expression.) 2) Is the law content based or content neutral? Government regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech. (Westboro) 3) If content based apply strict scrutiny - Compelling interest + narrowly tailored to achieve government interest (alleviate the harms to a material degree & does it achieve the purpose)+ least restrictive means 4) If content neutral apply intermediate scrutiny - Significant interest + narrowly tailored + ample alternative channels"
Compelled speech
Freedom of speech prohibits the government from telling people what they must say. Ex: Video Game labeling.
Video Software Dealers Ass’n v. Schwarzenegger
California Act that imposed restrictions on sale to minors & labeling requirement for violent video games. Rule: Content based restrictions are presumptively invalid and therefore subject to strict scrutiny. Court declined to use variable obscenity standard. Court applied SS & struck down law. Also labeling requirement is compelled speech b/c it isn’t fact based it requires the label to carry an opinion about its contents.
Phelps-Roper v. City of Manchester
Westboro contests law prohibiting picketing for disruption w/in 300 feet of funeral. Initial statutes were content neutral as they limited all pickets/protests w/in 300 feet. Revised version limited those that were designed to disrupt and therefore were content based. Content neutral regulations are subject to IS. Here we have SS b/c of content based statute. No significant gov’t interest b/c funeral attendees don’t have a privacy interest. Also Ordinance is not narrowly tailored. It prohibits substantially more speech than necessary to serve the goal of protecting funeral attendees.
Ladue v. Gilleo
"City ordinance intended to minimize visual clutter. Respondent places a sign on her front law regarding the Persian Gulf War. A city cannot constitutionally prohibit homeowners from displaying signs on their property because it suppresses too much speech. Rationale: No ample alternative channels for communication, Location of a sign at your home says something about your identity, it is a cheap and easy form of communication, They may be able to regulate (size, quantity, etc.) but they can’t completely ban signs because there is simply no adequate substitute."
Perry Educators’ Ass’n v. Perry Local Educators’ Ass’n
"Collective bargain agreement granting one union, but not the other union access to an inter district mail system. The existence of a right of access to public property depends on the character of the property at issue. 1) Streets and parks – quintessential public forums – No content based exclusions unless strict scrutiny standards are met. 2) Public property which the state has voluntarily opened for use by the public as a place for expressive activity. A state is not required to maintain the “open character” but it will still be subject to same standards as a public forum 3) Public property which is not by tradition or designation a forum for public communication. – The state can reserve such property for its intended purposes, so long as the regulation of speech is reasonable and not an effort to suppress expression merely b/c public officials oppose the speaker’s view."
Snyder v. Phelps
"Snyder (father of dead soldier) sues Westboro for state law tort claims. Issue is whether the first amendment shields them from Tort liability. Westboro’s actions – complied with instructions, quintessential public forum (street), didn’t use fighting words, stayed a short time, did not trespass, no indecency or incitement. Absent another category of “unprotected speech”, speech that is of public concern is protected speech. To ensure that public debate is not stifled, the court shields Westboro from tort liability . Public or private speech? Examine the content, form and context of that speech as revealed by the whole record."
Griswold v. Connecticut
"Facts: Executive Director and Doctor of PP were convicted under a Connecticut statute that made it a crime distribute/counsel in the use of birth control. Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations."
Eisenstadt v. Baird
"Struck down statute using rational basis test prohibiting sale of contraceptives to non married persons because it violated EPC, it discriminated against married vs. unmarried ppl. Court found there was absolutely no legitimate government purpose. NO legit purpose: Not for preventing premarital sex, Not for serving the health needs, Not for moral grounds against contraceptives BUT the statue could have easily survived the traditional RB review (this is rational basis with teeth). Under Griswold there may be an Individual Privacy Right regarding autonomy in decisions about birth choices."
Carey v. Population Services International
The court invalidated a New York law prohibiting any person other than a licensed pharmacist from distributing contraceptives. The Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the State. Restrictions on the distribution of contraceptives clearly burden the freedom to make such decisions and therefore are subject to SS.
Roe v. Wade
"Strict Scrutiny, this is part of the zone of privacy. Trimester Framework - First – Medical judgment left to physician. Second –State may restrict abortions in ways that are related to maternal health. Third – The potentiality of the fetus is compelling enough for the state to regulate abortions unless it is necessary to save the mother."
Abortion Funding Cases
Maher v. Roe/ Harris v. McRae – No constitutional right to abortion. No required government funding to perform abortions except where the life of the mother would be endangered if fetus was carried to term or if victim of rape/incest.
"Under Casey, what portions of the act were not undue burdens and what portions were undue burdens?"
"Not undue: Informed consent, 24 hour waiting period, minors have informed consent, requirements on facilities that provide abortions. Undue included: notification of husband."
Stare decisis factors from Casey/Lawrence
Decision to overrule must be based on these factors: 1) Test becomes unworkable 2) Can they be removed without serious inequity to people who have relied upon the test 3) Evolution of legal principles 4) Advances in science/medical technology. Scalia argues in Lawrence dissent that these factors are not present.
Planned Parenthood of Southeastern Pa. v. Casey
Rejects trimester framework and holds that the state’s interest in protecting the unborn child is only permissible after the point of viability (subject to mother’s health interest). A woman’s fundamental right to choose prior to viability will make any state law that imposes an undue burden or substantial obstacle unconstitutional. (How undue burden compares with persuasion is unclear)
Bowers v. Hardwick Rationales
(Sodomy case overruled by Lawrence) To find a fundamental right Look to whether 1) Right is not deeply rooted in this Nation’s history. or 2) The right is implicit in the concept of ordered liberty
Lawrence v. Texas
"Overturns Bowers, state decides this case based on rational basis analysis. Fails RB b/c there is no legitimate state interest which can justify its intrusion into the personal and private (sexual) life of the individual. Moral disapproval is not a legit gov purpose. Lawrence doesn’t tell us what level of scrutiny applies. They seem to discuss fundamental rights, but don’t use a fundamental rights analysis. They merely conclude by deciding the statute can’t even pass rational basis review."
What two propositions could Lawrence Stand for?
1) Sexual liberty is a fundamental right requiring a compelling governmental interest. (SS) OR 2) The government can show no rational basis for intruding on the interest in sodomy. (Rational Basis)
O'Connor's Concurrence from Lawrence.
O'Connor concurrence argues use of EPC b/c law aims to harm a politically unpopular group.
Reliable Consultants v. Earle (5th Cir. 2008)
" Statue criminalizing Sex Toys. protection for intimate relationships extends to intimate choices made by unmarried as well as married persons. This statute does not meet rational basis: Public morality is not a legitimate government interest, Concern for children doesn’t justify this invasion."
"Cruzan v. Director, Mo. Dep’t Health"
"Parents want to pull the plug on vegetable daughter. Court standard required proof by CCE of a vegetables wishes before they allow them to pull the plug. The court held that Competent adults have a constitutional right to refuse medical care under the DPC. Five justices expressly said this includes a right to refuse food and water to bring about death. CCE is okay b/c family members don’t have the right to make that choice for each other. Sup Crt upholds law, but it does not state that there is a fundamental right to die. Did not articulate a level of scrutiny, so use rational basis."
Washington v. Glucksberg
"Washington had ban on assisted suicide. Court rejects the claim that the Washington law prohibiting assisted suicide violates a fundamental right protected under the DPC. Court defines it as a “right to assistances in suicide”. Not fundamental liberty interest. Rule – Rational Basis, the state has a strong interest in preventing assisted suicide b/c of greedy relatives & manipulation or coercion."
Gonzalez v. Oregon
"Ashcroft overstepped his authority by trying to prosecute doctors who helped people die. The majority said this power belonged to the states. The ruling, however, leaves open the possibility that FDA laws could bar physicians from prescribing such medications."
Equal protection attack outline
"1)      Look for Laws that impose burdens or benefits on some classes of individuals but not on others (are similarly situated individuals being treated dissimilarly by the government based on irrelevant characteristics?) 2) Identify the class of people involved. It is possible to have a class of one, although generally we don’t. (Village of Willowbrook) 3) For suspect classes use strict scrutiny, for quasi-suspect classes use intermediate scrutiny for non-suspect classes use rational basis. 4) If it is a fundamental right it is subject to strict scrutiny, otherwise a law will be subject to rational basis review."
Strict Scrutiny
Compelling interest + narrowly tailored + necessary to serve that interest
Intermediate Scrutiny
Must be substantially related to an important interest. Important governmental purposes = exceedingly persuasive justification. (VMI)
Rational Basis Analysis.
"Must be rationally related to serving a legitimate state interest. Under lenient standards, if there is any conceivable state of facts upon which a legitimate interest can be found, even if it is not the real reason they adopted the law, we still don’t question it. It is rare when the government cannot satisfy the rational basis standard. Rational basis with teeth? How deferential will the court be in applying the rational basis standard. “Legislative classifications are valid unless they bear no rational relationship to the State’s objectives.” "
New York City Transit Authority v. Beazer
"(Seminal Case Re: Rat'l basis review) Metahdone users denied employment b/c of public safety. Safety and efficiency of public transportation is a legitimate interest. Even if it is a dumb plan or inadvisable, the court will uphold the law as long as there is SOME legitimate, cognizable purpose behind what the leg is doing, extreme deference to the legislature, unless the law bears no rational relationship to the State’s objectives."
U.S. Department of Agriculture v. Moreno
Food Stamp Househoulds. A legislative classification must be sustained if the classification is rationally related to a legitimate government interest. The classification is clearly irrelevant to the government’s purposes. Only legislative history suggests it was targeted at hippies - equal protection of the laws means that at the very least a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest
City of Cleburne v. Cleburne Living Center
No homes for addicts/retards. No rational basis when irrational prejudice against a specific group w/o justification for why the group was excluded
Romer v. Evans
CO initiative prohibiting local govs from enacting anti-discrimination laws that protect homosexuals. Moral disapproval is not a legitimate gov purpose. Violates EPC b/c it was based on a blatant gov purpose to spread animus towards homosexuals (harm a politically unpop. Group)
Clover Leaf Creamery:
No Actual purpose review. The court will uphold as long as there is some basis for the law.
Means/Ends Nexus & applying it through Beazer case
First identify the state interest and identify who it applies to. Beazer says that over and under inclusion will almost certainly not be fatal under rational basis review. Over-inclusive - Are there people who are subject to the law despite the fact that they were not part of the problem and/or their inclusion does not further the gov interest (Beazer methodone users could do non safety related jobs) Under-inclusive - Some ppl are not disadvantaged even though the failure to include them undermines the achievement of the interest. Beazer didn’t include alcoholics just methadone users
Holder Memo Re: DOMA (Defense of Marriage Act) – when to apply heightened scrutiny?
"4 Part test: 1) Whether the group in question has suffered a history of discrimination 2) Whether individuals exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group 3) Whether the group is a minority or is politically powerless 4) Whether the characteristics distinguishing the group have little relation to legitimate police objectives or to an individual’s ability to perform or contribute to society"
Scott v. Sandford
Slave Scott sued for his freedom. Court holds a black person is not a citizen and that the Missouri compromise is unconstitutional.
Plessy v. Ferguson
Separate passenger cars for blacks and whites. Court upholds law under separate but equal doctrine. Harlan says constitution is colorblind.
In Missouri ex rel Gaines v. Canada
"Missouri’s practice of maintaining an all white state law school, while agreeing to pay black residents’ tuition in neighboring states, violated the Equal Protection clause."
Sweatt v. Painter
"The court ordered the admission of a black student into a white law school holding that a parallel black school was not in fact equal. Compared factors between the schools: Size of library, Number of full time faculty, Intangibles including (Reputation of faculty, Experience of administration, Position and influence of alumni, Standing in the community, Traditions and prestige)"
McLaurin v. Oklahoma state regents
"McLaurin was made to sit in a special seat and segregated in cafeteria and library. Restrictions were unconstitutional because they impaired and inhibited his ability to study, to engage in discussions, to exchange views with other students, and in general, to learn his profession."
Brown v. Board of Education of Topeka (Brown I)
"Minors brought suit b/c they were denied admission to white schools. RULE – Struck down separate but equal. Education is perhaps the most important function of state and local governments. Relied on Sweatt/McLaurin, don’t want black kids to feel inferior, separate is inherently unequal."
Brown II
"Remand cases to original courts that heard these cases b/c of their proximity to local conditions and the need for further hearings RULE - must comply with this holding with all deliberate speed, Ds have burden of proving why they need additional time to comply."
Swann v. Charlotte-Mecklenburg Board of Ed
"school dist redrew dist lines based on race, court ordered busing for students in between schools. If future courts are going to remedy segregation issues there must exist three factors 1) the manipulation must be purposeful 2) the judicial power is limited by the constitutional violation and 3) once the schools achieve unitary status judicial intervention should cease."
Keyes v. School Dist No. 1
"Denver SD segregates via gerrymandering; 2 part Rule: The Ps bear the burden of establishing that there was intentional state segregation in a substantial portion of the system. Then, Ps are not required to show deliberate segregation for each school in the system."
Milliken I:
limits judicial power to remedy seg across SD boundaries; cannot punish innocent dist 1 for the wrongdoing of bad dist 2
Milliken II:
"remedial powers go beyond pupil assignment, can include ordering states to pay for remedial education as part of an effort to place victims of unconstitutional conduct in the position they would have been in but for the violation [sep but equal again?] Missouri v. Jenkins: Shot down Milliken II b/c it was too close to separate but equal"
Gordon Hirabayashi v. United States
"Gordon defies the military curfew. The Court found the curfew to be constitutional. Chief Justice Stone, writing for the unanimous Court, argued that racial discrimination was justified since ""in time of war residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of a different ancestry."""
Korematsu v. United States
"Japanese-American that refused to evacuate. Establishes SS - All legal restrictions which curtail the civil rights of a single racial group are immediately suspect, and courts must subject them to the most rigid scrutiny. That is not to say they are constitutionally impermissible, just that they are the most suspect. Black wrote opinion, upheld the law because it was not aimed at his race, it was aimed at the USA’s militaristic strategy and efforts. Korematsu is the sole case in which the court has upheld a law discriminating by race with the court applying so-called strict scrutiny."
Loving v. Virginia
"Ps convicted under VA statute making it a felony for blacks and whites to marry. Where a statute specifies a racial classification it should be subjected to the most rigid scrutiny, and if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of racial discrimination which it was the object of the 14th amendment to eliminate. Preserving racial integrity is not a legit gov purpose."
Washington v. Davis
"Black applicants to police force were able to show that a higher percentage of blacks failed the test than whites. A court confronted with a classification that disadvantages a racial minority must first determine whether it constitutes a racial classification. If it does, either because it is racial on its face or because it is motivated by a racial purpose, the court will use strict scrutiny and probably invalidate it. Disproportionate impact is not irrelevant; it can help demonstrate a discriminatory purpose which can be inferred from the totality of facts. If it is non race specific, then the court will use rational basis review despite the classification’s disproportionate impact on the minority group and probably uphold it. Disproportionate impact is not enough to apply Strict Scrutiny. Here, the court found that test was neutral."
In Personnel Administrator of Massachusetts v. Feeney
"Facts: Veterans got more weight in civil service jobs. This disproportionately favors men over women. A discriminatory purpose implies that the decision maker selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group."
Village of Arlington Heights
Even if just one purpose is to discriminate against a race it will trigger strict scrutiny.
Yick Wo v. Hopkins
"P convicted of violating local ordinance about operating laundry, claimed board of supervisors denied Chinese ppl licenses. Even where statute is passed for neutral reasons, if it is administrated discriminatorily, it violates EPC, no matter how low level the official who administers it may be. 14th A applies to nationals, aliens and non-citizens. “No state shall deny any person…” You don’t have to be a citizen to assert this."
Hernandez v. New York
"Prosecutor used preemptories to keep Hispanics off of the jury, claimed Spanish-speaking jurors would rely on Spanish testimony instead of its English translation. Affirmed prosecutor’s actions, this was disparate impact case and therefore governed by Washington v. Davis."
University of California v. Bakke
"Justices divided on UC Davis affirmative action program, ultimately struck it down (1/2 thought SS, ½ thought IS), Powell is the tie breaker who agrees it is SS applies. Uncon b/c it excluded applicants on the basis of race, i.e. the “quota system”"
"Adarand Constructors, Inc. v. Pena"
"Adarand submits lowest bid but K is given to minority owned firm b/c of federal statutes providing bonus for firms controlled by economically and socially disadvantaged persons. Strict Scrutiny applies in affirmative action cases. Three propositions to governmental racial classifications: 1) Skepticism – racial classifications are inherently suspect and subject to strict scrutiny 2) Consistency – standard of review under EPC not dependent on race, all use of race/ethnicity is suspect 3) Congruence – EP analysis in the 5th amendment is the same as that under the 14th amendment. All racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny."
Grutter v. Bollinger
"U of Mich law school board includes race and other factors when they did their entrance assessment. SS applies b/c it is explicitly using race. They find a compelling gov. purpose to have a racially diverse student body. It is narrowly tailored because they made a good faith consideration of race-neutral alternative to achieve diversity. No quotas system, but the goal of attaining a critical mass is different from a quota system. Court grants vast amount of deference to educators, almost the same amount of deference given to the government in Korematsu. In time, as social factors change, consideration of race may not be required in order to achieve diversity."
Craig v. Boren
"An OK statute had diff alcohol ages for men (21) and women (18), challenge was that it discriminated against males who were 18-20 yrs old. Court applies Intermediate Scrutiny. Struck down law b/c fit was not close enough, ordinance did not enhance traffic safety, which was the gov’s alleged purpose. Methodology was bad because women get driven home, so the numbers are skewed. Difference in percentage was also slight. The statute still allowed consumption, it only regulated purchase."
Mississippi University for Women v. Hogan
"Court struck down the exclusion of males from the nursing school b/c it tends to perpetuate the stereotyped view of nursing as a woman’s job. A skeptical attitude toward gender classifications is designed to ensure that government action is “determined through reasoned analysis rather than through the mechanical application of tradition, often inaccurate assertion about the proper roles of men and women. Doesn’t mean that separate but equal doesn’t have a role in education for men and women."
United States v. Virginia
"Challenge to VMI’s male-only policy Rule – IS, Important governmental purposes = exceedingly persuasive justification. The justification must be genuine, not hypothesized or invented post hoc in response to litigation. It must not rely on overbroad generalizations about the different talents, capacities or preferences of males & females."
Skinner v. Oklahoma:
"Ct declares procreation a FR under EPC, applies SS; strikes down prisoner sterilization. Struck down b/c the law arbitrarily distinguishes btw crimes of moral turpitude & white collar. When the law lays an unequal hand on those who have committed intrinsically the same offense and sterilizes one but not the other, it has made an invidious discrimination."
Harper v. Virginia State Board of Elections
Poll Tax. SS under EPC because voting is a fundamental right
Bush v. Gore
"The failure of the Florida court to specify standards for determination which votes would count violated the EPC. Having granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person’s vote over that of another. "