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Editing Constitutional Law Stone/Outline II
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== The Problem of “Dangerous Speech” == | == The Problem of “Dangerous Speech” == | ||
## '''First Amendment'''''':''' | ## '''First Amendment'''''':''' “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” | ||
### “Speech” includes more than just verbal action; it includes symbolic action as well (like conduct that is intended to convey a particular message) | ### “Speech” includes more than just verbal action; it includes symbolic action as well (like conduct that is intended to convey a particular message) | ||
### FS cases involve balancing of 1A and gov’t’s interests (protects freedom from gov’t not private individuals). A particular outcome often hinges on what justification of 1A protection is at stake... | ### FS cases involve balancing of 1A and gov’t’s interests (protects freedom from gov’t not private individuals). A particular outcome often hinges on what justification of 1A protection is at stake... | ||
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*## Categories of speech that don’t contribute to the marketplace of ideas receive little or no protection (examples: obscenity and threats). | *## Categories of speech that don’t contribute to the marketplace of ideas receive little or no protection (examples: obscenity and threats). | ||
*# Self-governance: Public discussion of public issues of public importance makes government stronger. | *# Self-governance: Public discussion of public issues of public importance makes government stronger. | ||
*## Important to Framers of | *## Important to Framers of Const’n. Must be able to comment on issues of public importance. | ||
*## Whether speech is of public or private nature will have operational significance: this plays out in defamation cases in which you are much more protected in first amendment if you defame president then would be to defame your dentist. | *## Whether speech is of public or private nature will have operational significance: this plays out in defamation cases in which you are much more protected in first amendment if you defame president then would be to defame your dentist. | ||
*# Self-realization: Even if speech has no larger purpose, it helps people fulfill themselves, emotions + feelings. Meaningful to individuals and provides satisfaction by being able to express yourself. | *# Self-realization: Even if speech has no larger purpose, it helps people fulfill themselves, emotions + feelings. Meaningful to individuals and provides satisfaction by being able to express yourself. | ||
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# Brandeis Concurrence: says we aren’t that fearful that we should suppress speech that could tend to cause harm sometime in the near future. We’re wary of gov’t trying to restrict speech. Rejects idea that gov’t can suppress speech just bc it has tendency to create some kind of harm at some point in the indefinite future. Would only permit punishment if your speech crosses the line into incitement and likely to cause an immediate danger and has to be a serious danger. Emphasis on immediacy. Best way to counter bad speech is good speech unless there is not that opportunity to insert counter dealing speech that would dissuade people from actually committing a crime. This view previews what we will see in Brandenberg. Intent, immediate, serious, and likely to occur. | # Brandeis Concurrence: says we aren’t that fearful that we should suppress speech that could tend to cause harm sometime in the near future. We’re wary of gov’t trying to restrict speech. Rejects idea that gov’t can suppress speech just bc it has tendency to create some kind of harm at some point in the indefinite future. Would only permit punishment if your speech crosses the line into incitement and likely to cause an immediate danger and has to be a serious danger. Emphasis on immediacy. Best way to counter bad speech is good speech unless there is not that opportunity to insert counter dealing speech that would dissuade people from actually committing a crime. This view previews what we will see in Brandenberg. Intent, immediate, serious, and likely to occur. | ||
# '''Bad Tendency Test - ''''''Gitlow v. NY''': Defendant is indicted for criminal anarchy. Member of the Left-Wing Section of the Socialist Party and published a communist manifesto for distribution in the United States – charged with plotting to overthrow the United States government. There was no evidence of an effect resulting from the publication of the manifesto. | # '''Bad Tendency Test - ''''''Gitlow v. NY''': Defendant is indicted for criminal anarchy. Member of the Left-Wing Section of the Socialist Party and published a communist manifesto for distribution in the United States – charged with plotting to overthrow the United States government. There was no evidence of an effect resulting from the publication of the manifesto. | ||
## '''Holding:''' Court upheld the Conviction under the | ## '''Holding:''' Court upheld the Conviction under the Bad Tendency Test. | ||
### | ### Bad Tendency Test: State can forbid speech that tends to result in action that is dangerous to public security, even if the speech doesn’t actually present Clear and Present danger. | ||
### This was basically the mindset that a small spark could cause a major outcry and therefore it needs to be stopped at its inception --- even if it just has a | ### This was basically the mindset that a small spark could cause a major outcry and therefore it needs to be stopped at its inception --- even if it just has a Bad Tendency. | ||
## '''Reasoning:''' The statute rejects an urging to action | ## '''Reasoning:''' The statute rejects an urging to action | ||
### The manifesto advocates and urges mass action. The wording that the proletariat of the world needs to rise is direct language of incitement | ### The manifesto advocates and urges mass action. The wording that the proletariat of the world needs to rise is direct language of incitement | ||
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######## Yet, generally speaking, the courts are weary of restricting language that is not meant to send a message of violent harm | ######## Yet, generally speaking, the courts are weary of restricting language that is not meant to send a message of violent harm | ||
* Speech that causes someone else to harm themselves is considered more as incitement, or if anything usually aiding and abetting | * Speech that causes someone else to harm themselves is considered more as incitement, or if anything usually aiding and abetting | ||
== Implied First Amendment Rights == | == Implied First Amendment Rights == | ||
## '''The Right Against Compelled Speech''' (AKA Right to Not Be Associated with Particular Ideas or Speech)'''''' | ## '''The Right Against Compelled Speech''' (AKA Right to Not Be Associated with Particular Ideas or Speech)'''''' | ||
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### OLD RULE: if state requires a violation of religious belief before conferring a benefit, that is violation of Free Exercise Clause– strict scrutinywill be applied to determine if state has to have an interest of the highest order (compelling interest) that outweighs society’s right to freely practice religion in in order to undermine free exercise in this way (“Sherbert test”) – BUT SEE SMITH BELOW – SHERBERT IS NO LONGER THE MAIN TEST | ### OLD RULE: if state requires a violation of religious belief before conferring a benefit, that is violation of Free Exercise Clause– strict scrutinywill be applied to determine if state has to have an interest of the highest order (compelling interest) that outweighs society’s right to freely practice religion in in order to undermine free exercise in this way (“Sherbert test”) – BUT SEE SMITH BELOW – SHERBERT IS NO LONGER THE MAIN TEST | ||
### Rule: Even if a state’s interest is compelling and the law may be a way to attain that interest, if the state’s gain toward the interest is only incremental as compared to the infringement into religious beliefs and lifestyles, the law will be struck down (Yoder) | ### Rule: Even if a state’s interest is compelling and the law may be a way to attain that interest, if the state’s gain toward the interest is only incremental as compared to the infringement into religious beliefs and lifestyles, the law will be struck down (Yoder) | ||
## ''' | ## '''Sherbert v. Verner''': Lady was a Seventh Day Adventist. She was fired because she had to take off work on Saturdays for her religious beliefs. Court found that state violated the Free Exercise Clausewhen it refused to give unemployment compensationto a Seventh-Day Adventistwho was fired from her job b/c she refused to work on Saturdays (was denied b/c she is physically able to work) | ||
### Issue: whether South Carolina has penalized her for exercising/adhering to her religious beliefs. | ### Issue: whether South Carolina has penalized her for exercising/adhering to her religious beliefs. | ||
### Holding: she is being penalized by the state for the exercise of her religion when state refuses to grant this benefit unless she is willing to violate her religious belief. She is forced to choose between following her religion and forfeiting benefits OR abandoning her religion for benefits | ### Holding: she is being penalized by the state for the exercise of her religion when state refuses to grant this benefit unless she is willing to violate her religious belief. She is forced to choose between following her religion and forfeiting benefits OR abandoning her religion for benefits | ||
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## Apply rational relationship when… | ## Apply rational relationship when… | ||
### You have neutral, across-the-board law w/ secular purpose, the fact that operation will hurt some ppl b/c of their religious beliefs is not generally sufficient to defeat enforcement or application of that law (Smith). | ### You have neutral, across-the-board law w/ secular purpose, the fact that operation will hurt some ppl b/c of their religious beliefs is not generally sufficient to defeat enforcement or application of that law (Smith). | ||
== Equal Protection: Traditional Approach == | == Equal Protection: Traditional Approach == | ||
## Rational basis/relationship test: Court will only ask whether the classification is rationally related to a legitimate gov’t interest - the default standard | ## Rational basis/relationship test: Court will only ask whether the classification is rationally related to a legitimate gov’t interest - the default standard | ||
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*## some gov’t program that takes race or gender or other characteristic into account in distributing a gov’t benefit or a public opportunity; gives some degree of weight to that factor. | *## some gov’t program that takes race or gender or other characteristic into account in distributing a gov’t benefit or a public opportunity; gives some degree of weight to that factor. | ||
*## Governmental preferences for particular groups (especially racial or ethnic minorities or women), to help that group. | *## Governmental preferences for particular groups (especially racial or ethnic minorities or women), to help that group. | ||
* Affirmative Action is one area where justices often speak from the heart and even make policy prescriptions rather than just saying violates or doesn’t violate | * Affirmative Action is one area where justices often speak from the heart and even make policy prescriptions rather than just saying violates or doesn’t violate EP. | ||
# ''' | # '''Regents of UC v Bakke''': 16/100 seats reserved for minority at med school considered economically or educationally disadvantaged, special admission process to get these spots. School had no history of racial discrimination. People admitted through the special admissions process were “qualified” but scores from MCAT/GPA were relaxed. Bakke, a 37-year-old white male, was rejected from Davis Medical School so sues to get in. Challenge based on fact that his credentials were better than substantial number of people admitted through special admission process and if those additional 16 slots had been open to everyone, he argues, he would have gotten in. (Standing- stipulation he would have been admitted; not a point of contention in this litigation). | ||
## No majority opinion; 4-1-4 split | ## No majority opinion; 4-1-4 split | ||
## '''Powell '''makes majority but writes for himself, the opinion most cited in the future. Says all expressed racial classifications warrant Strict Scrutiny across the board! Schools: don’t distinguish among different kinds of racial classifications. | ## '''Powell '''makes majority but writes for himself, the opinion most cited in the future. Says all expressed racial classifications warrant Strict Scrutiny across the board! Schools: don’t distinguish among different kinds of racial classifications. | ||
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*#### Greater deference should be given to U’s admissions policies because they are designed to remedy a difficult history of racial inequality | *#### Greater deference should be given to U’s admissions policies because they are designed to remedy a difficult history of racial inequality | ||
*### Dissent (Ginsburg): you can strike down the explicit weight assigned to race/ethnicity, but fundamentally you aren’t going to change the system – you will just drive the consideration into secrecy. | *### Dissent (Ginsburg): you can strike down the explicit weight assigned to race/ethnicity, but fundamentally you aren’t going to change the system – you will just drive the consideration into secrecy. | ||
== Gender Discrimination == | == Gender Discrimination == | ||
*# General | *# General | ||
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## Can cite it as case that possibly raises proposition that RR standard can have some teeth and can invalidate legislation. | ## Can cite it as case that possibly raises proposition that RR standard can have some teeth and can invalidate legislation. | ||
## On the other hand, it’s pretty clear that Cleberne was largely confined to its facts and did not signal some kind of broader regime of heightened scrutiny under rational basis. | ## On the other hand, it’s pretty clear that Cleberne was largely confined to its facts and did not signal some kind of broader regime of heightened scrutiny under rational basis. | ||
# ''' | # '''Romer v. Evans''' (Gay and lesbian) | ||
## Amendment 2 to the CO constitution prohibited the passing of legislation that would protect discrimination based on sexual orientation (gay). Also, the formerly passed statutes on this subject would be wiped out. If you wanted to enact a future ordinance to limit discrimination based on sexual orientation, you would have to amend the constitution, which would not be easy. | ## Amendment 2 to the CO constitution prohibited the passing of legislation that would protect discrimination based on sexual orientation (gay). Also, the formerly passed statutes on this subject would be wiped out. If you wanted to enact a future ordinance to limit discrimination based on sexual orientation, you would have to amend the constitution, which would not be easy. | ||
## Similar to Cleburne: | ## Similar to Cleburne: | ||
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*#### Scalia accused the majority for simply reading their own personal preferences as to what constitutes proper educational principles into the EP clause, and that is what we see being done here | *#### Scalia accused the majority for simply reading their own personal preferences as to what constitutes proper educational principles into the EP clause, and that is what we see being done here | ||
*### Echos of Windsor here as well: Court invalidated DOMA -- in the dissent -- the court said that if we upheld this we wouldn’t be endorsing homophobia but rather that this issue belongs to the political process. And here, the dissent saying that this should have been left to the political process. | *### Echos of Windsor here as well: Court invalidated DOMA -- in the dissent -- the court said that if we upheld this we wouldn’t be endorsing homophobia but rather that this issue belongs to the political process. And here, the dissent saying that this should have been left to the political process. | ||
== The Doctrine of State Action == | == The Doctrine of State Action == | ||
*# The Bill of Rights constrains only the conduct of public individuals, so private individuals could even grossly violate Free Speech or EP and that will not amount to an actual violation of the Constitution | *# The Bill of Rights constrains only the conduct of public individuals, so private individuals could even grossly violate Free Speech or EP and that will not amount to an actual violation of the Constitution |