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| subject        = Constitutional Law II
| subject        = Constitutional Law II
| authors        = Erwin Chemerinsky
| authors        = Erwin Chemerinsky
| text            = Constitutional Law Connected Casebook Chemerinsky
| text            = Constitutional Law Chemerinsky
| professor      = James Sample*Joseph Richard Hurt*Sharon E. Rush*Fredric G. Levin College of Law
| professor      = James Sample*Joseph Richard Hurt*Sharon E. Rush*Fredric G. Levin College of Law
| school          = Hofstra University School of Law*Florida A&M University College of Law
| school          = Hofstra University School of Law*Florida A&M University College of Law
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==EQUAL PROTECTION==
==EQUAL PROTECTION==


'''Equal Protection – '''[[Constitution_of_the_United_States#Section_1_.28Equal_protection_by_States.29|Equal protection]] is the guarantee that the law will be applied equally to all members of society. This guarantee is subject to differing levels of scrutiny depending on the type of classification that is being made.* <div style="margin-left:0.5in;margin-right:0in;"><span style="background-color:#ffffff;color:#000000;">Side note: There is no equal protection clause in the 5</span><span style="background-color:#ffffff;color:#000000;"><sup>th</sup></span><span style="background-color:#ffffff;color:#000000;"> amendment, however, the court in the companion case to Brown v. Board, Bolling v. Sharpe, determined that equal protection does apply to the Federal Government through the due process clause. </span></div>
'''Equal Protection – '''Equal protection is the guarantee that the law will be applied equally to all members of society. This guarantee is subject to differing levels of scrutiny depending on the type of classification that is being made.* <div style="margin-left:0.5in;margin-right:0in;"><span style="background-color:#ffffff;color:#000000;">Side note: There is no equal protection clause in the 5</span><span style="background-color:#ffffff;color:#000000;"><sup>th</sup></span><span style="background-color:#ffffff;color:#000000;"> amendment, however, the court in the companion case to Brown v. Board, Bolling v. Sharpe, determined that equal protection does apply to the Federal Government through the due process clause. </span></div>




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'''Facial Classifications''' – The text of the law draws a distinction based on race.  
'''Facial Classifications''' – The text of the law draws a distinction based on race.  


'''Classification by Administration or Impact''' – The Court will only hold that a classification exists in these circumstances if a discriminatory purpose can be proven. * <div style="margin-left:0.5in;margin-right:0in;"><span style="background-color:#ffffff;color:#000000;">'''[[Washington v. Davis]]'''</span><span style="background-color:#ffffff;color:#000000;">- In this case, the court did not find discriminatory impact or administration was sufficient to invalidate a law that requires police officers for DC to pass a test called Test 21, which ascertained verbal ability, vocabulary, reading and comprehension. The court found that the test was sufficiently related to the permissible goal of increasing the quality of police officers and that its impact on minorities was not purposeful. </span></div>
'''Classification by Administration or Impact''' – The Court will only hold that a classification exists in these circumstances if a discriminatory purpose can be proven. * <div style="margin-left:0.5in;margin-right:0in;"><span style="background-color:#ffffff;color:#000000;">'''Washington v. Davis'''</span><span style="background-color:#ffffff;color:#000000;">- In this case, the court did not find discriminatory impact or administration was sufficient to invalidate a law that requires police officers for DC to pass a test called Test 21, which ascertained verbal ability, vocabulary, reading and comprehension. The court found that the test was sufficiently related to the permissible goal of increasing the quality of police officers and that its impact on minorities was not purposeful. </span></div>
* <div style="margin-left:0.5in;margin-right:0in;"><span style="background-color:#ffffff;color:#000000;">'''McCleskey v. Kemp'''</span><span style="background-color:#ffffff;color:#000000;"> – The court upholds a state capital punishment verdict even with proof that blacks are far more likely to receive such a punishment than whites who commit similar crimes. A statistical study showing that black defendants in capital cases are much more likely to receive the death penalty than are white defendants in a state will not in itself establish that a particular black defendant was denied equal protection by being sentenced to death for murder in that state. The statistical study is insufficient to prove purposeful discrimination.</span></div>
* <div style="margin-left:0.5in;margin-right:0in;"><span style="background-color:#ffffff;color:#000000;">'''McCleskey v. Kemp'''</span><span style="background-color:#ffffff;color:#000000;"> – The court upholds a state capital punishment verdict even with proof that blacks are far more likely to receive such a punishment than whites who commit similar crimes. A statistical study showing that black defendants in capital cases are much more likely to receive the death penalty than are white defendants in a state will not in itself establish that a particular black defendant was denied equal protection by being sentenced to death for murder in that state. The statistical study is insufficient to prove purposeful discrimination.</span></div>


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The newest level of analysis that the court uses in gender classification/discrimination cases is the “exceedingly persuasive justification” standard, which seems to fit in an area between intermediate and strict scrutiny. This was first used in the case of United States v. Virginia, where the court did not allow Virginia Military Institute to remain single gender when the plan was to establish a lesser school for women.
The newest level of analysis that the court uses in gender classification/discrimination cases is the “exceedingly persuasive justification” standard, which seems to fit in an area between intermediate and strict scrutiny. This was first used in the case of United States v. Virginia, where the court did not allow Virginia Military Institute to remain single gender when the plan was to establish a lesser school for women.


'''[[United States v. Virginia]]''' - When a state military school’s policy of admitting only men was challenged, the state justified the policy, claiming that: (i) offering a diversity of educational approaches within the state (e.g., some schools having men only, some having women only, and some having both) yields important educational benefits, and (ii) females generally would not be able to meet the school’s physical requirements and would not do well under the school’s adversative approach to education. The Supreme Court found these arguments unavailing. There was no evidence that the single-sex school in question was established or had been maintained with a view toward fostering a diversity of educational opportunities, and there was some evidence that some women could meet the school’s physical requirements and thrive under the school’s adversative approach.
'''United States v. Virginia''' - When a state military school’s policy of admitting only men was challenged, the state justified the policy, claiming that: (i) offering a diversity of educational approaches within the state (e.g., some schools having men only, some having women only, and some having both) yields important educational benefits, and (ii) females generally would not be able to meet the school’s physical requirements and would not do well under the school’s adversative approach to education. The Supreme Court found these arguments unavailing. There was no evidence that the single-sex school in question was established or had been maintained with a view toward fostering a diversity of educational opportunities, and there was some evidence that some women could meet the school’s physical requirements and thrive under the school’s adversative approach.




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'''Age is not a suspect class'''. Thus, government action based on age will be upheld if there is a conceivable rational basis for the classification. [See, e.g., [[Massachusetts Board of Retirement v. Murgia]], 427 U.S. 307 (1976)—police officer can be forced to retire at age 50, even though he is as physically fit as a younger officer; Gregory v. Ashcroft, 501 U.S. 452 (1991)—a state constitution that requires state judges to retire at age 70 does not violate the Equal Protection Clause]
'''Age is not a suspect class'''. Thus, government action based on age will be upheld if there is a conceivable rational basis for the classification. [See, e.g., Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976)—police officer can be forced to retire at age 50, even though he is as physically fit as a younger officer; Gregory v. Ashcroft, 501 U.S. 452 (1991)—a state constitution that requires state judges to retire at age 70 does not violate the Equal Protection Clause]




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Wealth Not Suspect The Court has never held that wealth alone is a “suspect classification.” However, the lack of wealth, or the inability to pay a governmentally required fee, cannot be the sole basis upon which a person is deprived of a fundamental constitutional right. Example: The government will be required to waive a marriage license fee or divorce court fee for a person who cannot afford to pay that fee. Marriage and divorce rights are part of the right of privacy.
Wealth Not Suspect The Court has never held that wealth alone is a “suspect classification.” However, the lack of wealth, or the inability to pay a governmentally required fee, cannot be the sole basis upon which a person is deprived of a fundamental constitutional right. Example: The government will be required to waive a marriage license fee or divorce court fee for a person who cannot afford to pay that fee. Marriage and divorce rights are part of the right of privacy.


==FREE EXPRESSION==
==FREE EXPRESSION==




'''[[First Amendment]] - '''[[Congress]] shall make no law&nbsp;respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
'''First Amendment - '''Congress shall make no law&nbsp;respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.




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=== '''FIGHTING WORDS''' ===
'''FIGHTING WORDS'''




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'''[[R.A.V. v. City of St. Paul, Minnesota]] – '''R.A.V., a minor was convicted under a St. Paul, MN ordinance for burning a cross on the lawn of a black family. The Ordinance prohibited the placement of hateful symbols, including burning crosses, “which one knows or has reasonable grounds to know arouse . . . anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” '''Issue '''- Whether a state ordinance prohibiting expressions of hateful speech violates the First Amendment.
'''R.A.V. v. City of St. Paul, Minnesota – '''R.A.V., a minor was convicted under a St. Paul, MN ordinance for burning a cross on the lawn of a black family. The Ordinance prohibited the placement of hateful symbols, including burning crosses, “which one knows or has reasonable grounds to know arouse . . . anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” '''Issue '''- Whether a state ordinance prohibiting expressions of hateful speech violates the First Amendment.




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=== '''Obscenity ''' ===
'''Obscenity '''




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=== '''DEFINING OBSCENITY ''' ===
'''DEFINING OBSCENITY '''




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=== '''Child Pornography''' ===
'''Child Pornography'''




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=== '''Profanity and Indecent Speech – ''' ===
'''Profanity and Indecent Speech – '''




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=== '''COMMERCIAL SPEECH ''' ===
'''COMMERCIAL SPEECH '''




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The court in [[Central Hudson Gas and Electric v. Public Service Commission of New York]] devised a test that is to be used when determining if commercial speech may be regulated.  
The court in Central Hudson Gas and Electric v. Public Service Commission of New York devised a test that is to be used when determining if commercial speech may be regulated.  




'''Central Hudson Test:'''# <div style="margin-left:0.5in;margin-right:0in;"><span style="background-color:#ffffff;color:#000000;">
'''Central Hudson Test:'''# <div style="margin-left:0.5in;margin-right:0in;"><span style="background-color:#ffffff;color:#000000;">Does the speech advertise for illegal activities or constitute false/misleading advertising? – If yes, the speech is not protected.</span></div>
# <div style="margin-left:0.5in;margin-right:0in;"><span style="background-color:#ffffff;color:#000000;">Is the government’s restriction based on a substantial governmental interest? – if yes, go to step 3.</span></div>
# <div style="margin-left:0.5in;margin-right:0in;"><span style="background-color:#ffffff;color:#000000;">Does the law directly advance the government’s interest? – If yes, go to step 4.</span></div>
# <div style="margin-left:0.5in;margin-right:0in;"><span style="background-color:#ffffff;color:#000000;">Is the regulation of speech no more extensive than necessary to achieve the government’s interest? If yes to #2-4, the law is probably constitutional. </span></div>


#Does the speech advertise for illegal activities or constitute false/misleading advertising? – If yes, the speech is not protected.
#Is the government’s restriction based on a substantial governmental interest? – if yes, go to step 3.
#Does the law directly advance the government’s interest? – If yes, go to step 4.
#Is the regulation of speech no more extensive than necessary to achieve the government’s interest? If yes to #2-4, the law is probably constitutional.




<div style="margin-left:0.25in;margin-right:0in;"></div>


<div style="margin-left:0.25in;margin-right:0in;"></div>
<div style="margin-left:0.25in;margin-right:0in;">In recent court decisions, the court has modified part 4 of the analysis, by shifting away from the no more extensive than necessary to achieve the government’s interest. The law no longer needs to be the “least restrictive” means, but rather must be narrowly tailored to achieve the substantial governmental interest.</div>


In recent court decisions, the court has modified part 4 of the analysis, by shifting away from the no more extensive than necessary to achieve the government’s interest. The law no longer needs to be the “least restrictive” means, but rather must be narrowly tailored to achieve the substantial governmental interest.


=== '''Restriction on Trade Names''' ===
'''Restriction on Trade Names'''




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=== '''Alcohol Advertisements ''' ===
'''Alcohol Advertisements '''




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=== '''SCHOOL SPEECH''' ===
<div style="text-align:center;"><u>'''SCHOOL SPEECH'''</u></div>




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'''''[[Tinker v. Des Moines]]'''''– The Tinker chillins and some of their buddies wore black armbands to protest the United States’ involvement in the Vietnam Squabble (The US never declared war). The school sent them home and told them to think about what they did. – Issue – Whether the school may punish political speech, based purely on content, and that did not create a substantial disruption.
'''Tinker v. Des Moines '''– The Tinker chillins and some of their buddies wore black armbands to protest the United States’ involvement in the Vietnam Squabble (The US never declared war). The school sent them home and told them to think about what they did. – Issue – Whether the school may punish political speech, based purely on content, and that did not create a substantial disruption.




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'''''Bethel School Dist. v. Fraser''''' – The school held a mandatory assembly, at which 600 students were present. At the assembly, Fraser nominated his friend for student elective office with a speech that honestly wasn’t very offensive, but the school suspended him because they said that it was an “elaborate, graphic, and sexual metaphor.” Fraser challenged his suspension and now he’s at the Supreme Court. – Issue – Whether schools may punish a student for sexually explicit speech at a school event.
'''Bethel School Dist. v. Fraser''' – The school held a mandatory assembly, at which 600 students were present. At the assembly, Fraser nominated his friend for student elective office with a speech that honestly wasn’t very offensive, but the school suspended him because they said that it was an “elaborate, graphic, and sexual metaphor.” Fraser challenged his suspension and now he’s at the Supreme Court. – Issue – Whether schools may punish a student for sexually explicit speech at a school event.




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'''''Hazelwood School District v. Kuhlmeier''''' - During the spring 1983 semester, the principal of the high school reviewed a draft of the newspaper (Spectrum) containing two articles on the topics of teen pregnancy and divorce. Believing these articles were inappropriate for the student audience and that there was not sufficient time to edit the articles and still make the publication deadline, the principal ordered the journalism teacher to delete these two articles from the final publication draft. – Issue – Whether under the 1<sup>st</sup> amendment, the school may censor the school newspaper.  
'''Hazelwood School District v. Kuhlmeier''' - During the spring 1983 semester, the principal of the high school reviewed a draft of the newspaper (Spectrum) containing two articles on the topics of teen pregnancy and divorce. Believing these articles were inappropriate for the student audience and that there was not sufficient time to edit the articles and still make the publication deadline, the principal ordered the journalism teacher to delete these two articles from the final publication draft. – Issue – Whether under the 1<sup>st</sup> amendment, the school may censor the school newspaper.  




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'''''Morse v. Frederick''''' - In 2002, principal Deborah Morse (defendant) suspended high school senior Joseph Frederick (plaintiff) for ten days after he displayed a large banner reading “Bong Hits 4 Jesus”. Morse suspended Frederick because she believed the banner promoted illegal drug use.&nbsp;Issue - Whether the First Amendment permits school officials to prohibit students from displaying messages promoting illegal drug use at school-supervised events.
'''Morse v. Frederick''' - In 2002, principal Deborah Morse (defendant) suspended high school senior Joseph Frederick (plaintiff) for ten days after he displayed a large banner reading “Bong Hits 4 Jesus”. Morse suspended Frederick because she believed the banner promoted illegal drug use.&nbsp;Issue - Whether the First Amendment permits school officials to prohibit students from displaying messages promoting illegal drug use at school-supervised events.




* <div style="margin-left:0.5in;margin-right:0in;"><span style="background-color:#ffffff;color:#000000;">'''Reasoning'''</span><span style="background-color:#ffffff;color:#000000;"> - The First Amendment rights of students in the public schools “are not automatically coextensive with the rights of adults in other settings,” and must be “applied in light of the special characteristics of the school environment.” Although Frederick’s message was cryptic, Morse acted reasonably when interpreting it as a message promoting illegal drug use.&nbsp;Since the principle interpreted the message as promoting illegal drug use, the principle was within her rights to take down the banner and punish Frederick. </span></div>
* <div style="margin-left:0.5in;margin-right:0in;"><span style="background-color:#ffffff;color:#000000;">'''Reasoning'''</span><span style="background-color:#ffffff;color:#000000;"> - The First Amendment rights of students in the public schools “are not automatically coextensive with the rights of adults in other settings,” and must be “applied in light of the special characteristics of the school environment.” Although Frederick’s message was cryptic, Morse acted reasonably when interpreting it as a message promoting illegal drug use.&nbsp;Since the principle interpreted the message as promoting illegal drug use, the principle was within her rights to take down the banner and punish Frederick. </span></div>
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