Constitutional Law II Stone

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Constitutional Law II
Authors Geoffrey R. Stone
Louis Michael Seidman
Cass R. Sunstein
Mark V. Tushnet
Pamela S. Karlan
Text Image of The First Amendment (Aspen Casebook)
The First Amendment (Aspen Casebook)
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Taught at
Related course(s)


The Problem of “Dangerous Speech”[edit]

    1. 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.”
      1. “Speech” includes more than just verbal action; it includes symbolic action as well (like conduct that is intended to convey a particular message)
      2. 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...
  • So, what does 1A actually protect? (3 justifications for the protection of free speech)
    1. Fruit of the Truth: Utilitarian notion that FS is the most efficient mechanism in the pursuit of truth. Let all (even crazy) ideas into the marketplace of ideas where we can get closer to the truth.
      1. Categories of speech that don’t contribute to the marketplace of ideas receive little or no protection (examples: obscenity and threats).
    2. Self-governance: Public discussion of public issues of public importance makes government stronger.
      1. Important to Framers of Const’n. Must be able to comment on issues of public importance.
      2. 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.
    3. 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.
      1. Different from first two (public benefit) – this a private benefit.
    4. Two Types of Restrictions on FS
      1. Content Discrimination
        1. The gov’t can’t ban a message on the basis of what is being said. Can’t single out a particular viewpoint or message
        2. Heightened scrutiny will apply
          1. Regulation will be presumptively invalid
          2. Gov’t will have to show that the restriction was necessary to achieve a compelling state interest
        3. Time/Place/Manner Restrictions
          1. Gov’t has more leeway to suppress speech for neutral reasons that are unrelated to the viewpoint of the message – e.g. noise ordinance or texting while driving ban – speech impaired incidentally
          2. If the regulation is being imposed even-handedly, the gov’t will be able to impose the restriction.
            1. Wording is key – must be facially neutral
          3. Regulation will be presumptively valid, even though there is an incidental impact on the exercise of free speech
        4. Freedom of speech as a “preferred” freedom
          1. This is a current that runs through many of the freedom of speech cases
          2. Not all constitutional protections were created equally – some have more weight than others. (Why? Look @ Carolene Products)
            1. FS holds lofty position in hierarchy of the values and rights contained in the Const’n.
          3. Freedom of speech cuts across “party line” on Court—championed by both sides
            1. Look to federal judiciary for remedy + to protect groups because those elected by the political process are unlikely to help.
          4. Political speech is at the top of this hierarchy
        5. 'U.S. v. Carolene Products
          1. 'Three categories of action that require heightened scrutiny:'
            1. Statute facially infringes one of the freedoms/values protected in Bill of Rights
              1. Restrictions on FS would clearly fall under this category
            2. Legislation restricts those particular processes that can ordinarily be expected to bring about repeal of undesirable legislation (i.e. insulates the political process itself from change)
              1. If people are not permitted to express their opinions, then our democratic system of self-gov’t—which is premised on citizens being able to criticize the gov’t—isn’t going to work the way that it is supposed to
              2. Freedom of speech is a pre-condition of democracy
  • No political accountability without free speech – ex: gov’t tries to muzzle the media.
  1. Legislation animated by prejudice against discrete and insular minorities. Statute is directed at particular religious, national, or racial minorities
    1. Can seriously curtail those political processes that may be relied upon to protect minorities.
    2. Restrictions on speech are likely to be aimed at ideological minorities—the people who need the court to protect FS
  • This category is more of a stretch, but it can still be applied to freedom of speech
  1. Holmes, the “Clear and Present Danger” test, and the marketplace of ideas
    1. Dangerous Speech: Speech that someone engages in that might arouse, persuade, incite, or otherwise cause people to engage in unlawful, typically violent, conduct
      1. The first issue of First Amendment interpretation to capture the Court’s sustained interest; early cases did not receive much protection, but now protection of “dangerous speech” is much more present
      2. “Advocacy” or “agitation” is not “direct incitement”
      3. Arose most prominently during WWI with the Espionage and Seditions Acts over concerns of communism.
    2. When can government restrict speech because the speech is harmful?
      1. Speech that may induce hearers to engage in unlawful conduct: cases concerning WWII draft
      2. Speech that “threatens” harm to others
      3. Speech that provokes a hostile audience response
      4. Speech that discloses confidential information
  • Foundations of Dangerous Speech Jurisprudence
    1. Shaffer v. U.S. (Natural and Probable Tendency Test): This case reflects the then-prevailing view of the lower federal courts that speech could constitutionally be punished as an attempt to cause some forbidden or otherwise undesirable conduct if the natural and reasonable tendency of the expression might be to bring about the conduct, and if the speaker intended such result.
    2. Masses Publishing Co. v. Patten: Incitement is not protected, but agitation is (modern view)
      1. To assimilate [political] agitation with direct incitement to violent resistance is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government
        1. Encouraging/admiring those that do break the law is still protected (people have a right to their opinion)
      2. Judge Hand focused on the content of the speech rather than on the intent of the speaker or the consequences of the communication
        1. Major question asked and focused on: did the speaker employ express words of incitement?
      3. 'Clear and Present Danger Test'
        1. Three Requirements: (1) Likelihood of (2) imminent, (3) significant harm.
          1. The test is designed to reduce the risk that government, in the guise of preventing danger, will in fact suppress expression because it disapproves of the substantive message
        2. Frohwerk v. U.S.: Because the United States was at war, the speech had to be considered in relation to the circumstances in which it was made. Despite Frohwerk’s argument that he did not intend to obstruct the draft or the military’s efforts by writing his articles, there is at least a small risk that the articles would have had this effect. The risk of obstruction to the marshalling of military forces is unjustifiable in wartime.
        3. Clear & Present Danger -' Schenck v. U.S.': (Holmes Majority) Defendant convicted of circulating pamphlets to enrollees; were alleged to obstruct recruiting and enlistment efforts. The document used peaceful measures such as a call to repeal the Conscription Act; used impassioned language. Encouraged people to “assert their opposition to the draft,” but did not expressly urge a violation of law.
          1. Issue: Whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent?
          2. Holding: The document was clearly intended to obstruct the enlistment/recruitment of soldiers.
            1. Ordinarily, speech would be protected by 1A but in wartime Congress has powers they normally wouldn’t – speech’s purpose is to create a clear and present danger that congress has a right to prevent.
            2. “the character of every act depends upon the circumstances in which it is done”
  • The solicitation doesn't have to be successful for it to be a crime.
    1. There was no evidence that the leaflet had any effect in causing a single person to resist the draft.
    2. With Holmes, it was enough that particular speech has a “tendency” at some point to cause serious harm.
    3. This represented the old view that Congress could forbid conduct if the natural and reasonable tendency of the expression might be to bring about the conduct and if the speaker intended it.
  1. Natural Tendency and Reasonable Probably Effect - 'Debs v. U.S.': (Holmes Majority) Socialist Party Leader Debs was sentenced to jail for ten years for violating the Espionage Act; delivered public speech to assembly in Ohio about socialism. Also had some negative parts about the draft; convicted for attempting to obstruct recruiting efforts.
    1. Holding: Conviction upheld; Act doesn’t violate 1A.
      1. Speech is not protected if its purpose was to oppose the war (whether incidental or not) and that it had a natural tendency and reasonable probable effect to obstruct recruitment
      2. Here, Holmes articulated clear and present danger as almost needing immediate harm. Based decision on the likelihood or imminence of harm
    2. Holmes dissents: Opinions are rarely punishable - 'Abrams v. U.S.': Majority affirmed convictions of Russians who were circulating pamphlets objecting to sending American troops to Eastern Europe after Russian Revolution. Convicted under Espionage Act of 1917. Holmes wrote a memorable dissent in favor of protecting freedom of speech.
      1. Majority: Speech presented a clear and present danger.
      2. Justice Holmes dissent (Most quoted passage about the 1A):
        1. Applies the Clear and Present danger test in favor of the defendants – danger has to be immediately apparent; not only that it could foreseeably cause harm at some point in future
        2. “Tendency” is not enough; should focus on the immediacy of the threat or the danger caused by the words
  • Rejects notion that a tendency to cause harm at some point in time is the kind of speech that the gov’t can penalize
  1. Holmes gives metaphor of free market and truth of ideas; never actually used phrase “marketplace of ideas.” “…[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”
    1. The most efficient way of arriving at the truth is to let all various viewpoints and opinions sort themselves out. The notion of scientific exploration rather than “marketplace of ideas” is closer to what Holmes meant- questioning needed to proceed toward truth.
  2. 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.
  3. 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.
    1. Holding: Court upheld the Conviction under the Bad Tendency Test.
      1. 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.
      2. 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.
    2. Reasoning: The statute rejects an urging to action
      1. The manifesto advocates and urges mass action. The wording that the proletariat of the world needs to rise is direct language of incitement
      2. Court noted that the statute does not penalize abstract doctrine or academic discussion having no quality to incite
      3. “Freedom of speech and press does not deprive a State of the primary and essential right of self-preservation” (i.e. the right to prevent an overthrow) The state may regulate to protect its interests in general welfare of its citizens
      4. Threats to overthrow the government involve danger to the public peace and the security of the state. The fear is that a single revolutionary spark may kindle a fire. State is not acting arbitrary when protecting the peace.
      5. Here, the legislature determined that the utterances of a certain kind involved such danger of substantive evil that they must be punished
    3. Holmes Dissent: Argues that court should apply the criteria outlined by the Schenck Court. Look to whether there is a clear and present danger. Here, there was no present danger of an attempt to overthrow the government. There was no chance of starting a situation.
  4. Syndicalist Statutes
    1. 'Whitney v. CA': Could Whitney be convicted simply for joining a Communist party that had illegal aims, when Whitney herself didn’t join for purposes of furthering illegal aims of the Communist party.
      1. Holding: Majority held belonging to the organization is enough to convict b/c the state has made determination that joining the organization is dangerous enough, regardless of her own personal intent, goals & interests in joining
        1. NOT GOOD LAW – Supplanted by Brandenburg. Famous for Brandeis concurrence.
        2. Today: can’t convict someone for membership in an organization per se; could be convicted if member and have specific intent to further goals of the organization
      2. 'Justice Brandeis’ concurrence (he wants the clear and present danger test):'
        1. A citizen can criticize the law and can advocate breaking them. The only time it’s unprotected is when it’s incitement likely to cause immediate AND serious danger BECAUSE (1) fear of serious injury alone cannot justify the suppression of free speech and assembly (cf VA Board); and (2) even imminent danger cannot justify prohibitions on speech, unless the dangers apprehended are relatively serious.
          1. Immediacy: only when there isn’t enough time to counter the message with good speech because there’s no realistic opportunity for discussion, should the government then be permitted to suppress speech
          2. Serious: If inciting minor infraction, it should be protected – must be serious harm to not be protected. Just resulting in some violence is not enough
        2. Demonstrates instrumental and democratic functions that speech serves:
          1. Free speech is requisite to the effective search for the truth
          2. 'Sounds like Holmes’ “marketplace of ideas”
  • Freedom of speech is a distinct and profound part of our system
  1. Founders were extremely suspicious of the gov’t’s motives in trying to control the kind of speech that could be expressed
  2. Once the gov’t becomes the arbiter of what kind of speech is worthwhile, there will no longer be a disinterested pursuit of truth
  3. The antidote for bad speech is good speech, counter speech
    1. Freedom of speech is a foundational freedom
    2. Required for the meaningful exercise of other freedoms
  • Powerful idea that w/o FoS, other freedoms don’t matter as much
  1. 'Immediacy'
    1. Harm caused or feared must be immediate
    2. Ordinarily, when we have speech that is considered evil or dangerous, the counsel for dealing with the potential harm is more speech
    3. There are some situations where there is no opportunity for intervening speech (example: Holmes’ example of when someone yells “fire!” in a crowded theater)
    4. In order to be unlawful speech, there must be an intent to incite some kind of harmful, unlawful conduct, and the harmful conduct generally needs to be immediate and likely to occur – more a notion of causation then time (speech has to be able to cause harm).
    5. Court engages in 20/20 hindsight: how could it rise to the level of incitement, when they already have the knowledge that this expression hadn’t caused any harm?
  • Advocacy of Action versus Advocacy of Belief – essential distinction between express advocacy of unlawful action and the advocacy of “abstract doctrine” or general discussion of policy and ideas
    1. Yates v. United States
      1. Held: Court took a narrow view of the Smith Act and overturned convictions of several members of the Communist party for conspiracy to violate the Act
      2. Reasoning: Smith Act did not prohibit advocacy of overthrow of the government as an abstract principle. That sort of advocacy is too remote and removed from concrete action  simply the advocacy of ideas
        1. The essential distinction is that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than to merely believe something ----or even just study something.
      3. Scales v. United States
        1. Held: Going off of Whitney, membership in a group that advocates unlawful things is illegal if the individual “was an active” member who specifically intended to bring about the overthrow of government as speedily as circumstances would permit”
          1. So one must have knowledge + intent
        2. More: Court revisited membership in a “subversive” org. So in Whitney, the Court held that knowing membership was enough to remove constitutional protection of speech
          1. After Yates, the court realized that a “blanket prohibition” of knowing membership in orgs “having both legal and illegal aims” might pose a real danger that legitimate political expression or association would be impaired
        3. Therefore, here the Court held that membership in such a group is only unlawful if you are an “active” member versus merely a passive, inactive member with mere knowledge- thus a member could only be punished under the Act if he was an “active” member who specifically intended to bring about the overthrow of the government
      4. Brandenburg v. OH: Brandenburg is an officer of the KKK, convicted under Ohio’s syndicalism statute. The Court reversed the conviction, even though the speech talks about taking “revengent action” against certain groups. The Court held that this was advocacy, not incitement, and even advocacy of the use of force cannot be punished unless it is directed at inciting or producing imminent lawless action and is likely to incite or produce such action – speech may be ugly, but it’s protected.
        1. Court basically adopts the approach Brandeis used in Whitney concurrence
        2. Not clear whether Brandeis’ “seriousness” prong is also part of the test
        3. Test is somewhat at odds with the notion of deferring to the fact-finder (Court is disrupting the judgment of the lower court that actually heard the testimony and found that there was an unprotected incitement)
        4. 'Two-prong test: Imminence/Incitement & Likelihood'
          1. Incitement prong: Is the expression intended to incite criminal behavior? Express advocacy for violation of law + Calling for immediate violation of law.
            1. Goes back to Learned Hand’s distinction b/t advocacy and incitement
            2. Lose protection if there is not enough time to debate the harmful words
  • But if there is an opportunity for counter-speech and to deter the sentiments that may lead to action, the Court is not going to punish the speech
  1. Requires a movement beyond mere talking stage to operation stage – how much do words look like a plan/operation
  2. Modern standard of how supreme court defines incitement.
  3. Likelihood prong: Is the expression likely to incite criminal behavior?
    1. Goes back to the Holmes idea of “clear and present danger”
    2. Have to consider the likelihood that the harm will occur
  • There shouldn’t be a conviction if the harm is not likely to occur
  1. The basic idea/dichotomy is between words that are expressing some sort of opinion overall, and something that is more along of lines of expressing immediate action, or action words
    1. “Wouldn’t it be great if we could get rid of X race” versus “Let’s all meet at the mall later with our guns and axes and go after X race”
  2. Connection with the general themes of 1A jurisprudence:
    1. Freedom of speech is a preferred freedom
    2. Court goes to great lengths to protect FoS that it doesn’t when making other determinations
    3. WE DON’T WANT A CHILLING EFFECT - people can be easily deterred from exercising their free speech if they think they’ll go to jail or fear jail for speaking
  3. Advocacy versus Incitement
    1. Advocacy: has not risen to point where there’s going to be immediate action
    2. Incitement: immediate threat of danger.
      1. Intended to incite criminal behavior AND likely to do so
      2. Not just in temporal terms but also in causation terms
    3. Brandenburg requires Three Things:
      1. Express advocacy of law violation
      2. The advocacy must call for immediate law violation, and
      3. The immediate law violation must be likely to occur
    4. Threats
      1. Threat: A statement of an intention to inflict pain, injury, damage or other hostile action on someone if he doesn’t do something, or if some event occurs.
      2. Questions to Ask:
        1. How literally to take a particularly alleged threat?
          1. This is going to hinge on context – what sort of meaning is likely to be ascribed to the word(s) within the context?
          2. Watts v. United States
            1. In this context, this is rhetorical hyperbole, just a crude way of expressing his opposition to the draft and the Vietnam War. He did not mean it literally.
          3. The fact that one uses words – which could be perceived as a threat out of context – is not going to count as a threat under the First Amend.
        2. How explicit does the threat have to be?
          1. Nothing that says words have to be absolutely explicit
            1. Doesn’t need to be “I am going to kill you”
          2. Planned Parenthood v. ACLA (Nuremberg Files): Implied threat, but not explicit threat – there was a website where if a doctor was killed, his name would be struck through. Could reasonably be considered a threat to their lives based on the images.
            1. Dissent said it could not be a direct threat, because the creators with the websites were not the people who actually committed the murders and were therefore directing the threats – they were instead just sharing their views (however sick) and trying to gain support
          3. By what standard to we judge a threat?
            1. A reasonable person standard
              1. If someone were to hear these words and know something about the target of these words, would that observer think “yeah, that target is going to view this as a reasonable threat of harm to himself?”
            2. Does the speaker simply mean to convey a serious threat?
              1. The fear that is induced by the threat is what makes it proscribable/forbidden under the First Amend.
            3. What kind of threat does it have to be?
              1. Does it have to be a threat of violence?
                1. Generally, no – there are ways that you can threaten people with nonviolent harm
                  1. Blackmail
                2. 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

Implied First Amendment Rights[edit]

    1. The Right Against Compelled Speech' (AKA Right to Not Be Associated with Particular Ideas or Speech)'
      1. Generally
        1. The government can’t require you to accept certain views and you can refrain from making certain statements
        2. Natural corollary of the right to freedom of speech is the idea that the gov’t should not force you to say things that you don’t want to say
        3. The motives for not expressing an idea generally don’t matter (possibly that you just don’t want to be involved)
        4. Two Situations Where This Applies
          1. When the government is trying to get you to say something that you disagree with, where you would want to say something else
            1. So, something that you don’t agree with – makes you take one view point where you believe the opposite view point
          2. When the government is trying to get you to say something when you would rather not say anything at all
            1. The government can’t force you to express or harbor thoughts or expression that you don’t want to engage in. “I don’t want to talk about the Iran nuclear deal”
          3. W. Va. State Board of Edu. v. Barnette: Court held that a public school can’t force children to participate in a flag-saluting ceremony (including the pledge of allegiance); gov’t can’t force you to express views that you don’t hold; can’t compel you to speak – state has no power to mandate allegiance in hopes that it will encourage patriotism.
            1. Dissent: this legislation is well within the state’s purview and encourages good citizenship
            2. DIFFERENCE BETWEEN THIS AND PRUNEYARD: For an act to be expressive, must involve the communication of the speaker’s internal mental state; and there is no opt-out provision as in PY; or could see this as everyone thinking the person associates with this speech as in Lee v. Wiseman
  • License Plates - Wooley v. Maynard: New Hampshire required everyone to have a license plate with the state motto “Live Free or Die.” Maynards are Jehovah’s witnesses and take very seriously the idea of affirming or swearing to something. State argued that they needed to have a method of identifying passenger cars and that the statement was rather meaningless, so people were not affirming this sentiment by merely driving.
    1. Holding: The Court, relying heavily on Barnette, holds in favor of the Maynards; requirement violates their right to refrain from speaking (right to not be involuntarily associated with this slogan). State can’t force them to be the vehicle for someone else’s views (however, there are instances where the gov’t can- Pruneyard). Further, the state could not punish individuals for covering up the motto.
    2. Reasoning: Court accepts the State’s interest as a legitimate interest, but it found that there were less drastic means of accomplishing this interest (can identify passenger cars without requiring the motto)- Court applied heightened scrutiny
      1. This fosters public adherence to an ideological viewpoint that the Plaintiffs find unacceptable
    3. Court uses subjective test to decide whether Maynards’ rights have been violated
      1. Doesn’t matter if the rest of society doesn’t attribute the message to the Maynards—what matters is what they Maynards themselves felt they were being associated with
      2. B/c the Maynards felt like they were being associated with the message, that is enough to vindicate their rights
      3. If the Court were to apply a purely objective test, the Maynards would lose
    4. Case does not stand for a broad, general principle
    5. TEST: if there is a less dramatic means for the state to achieve its goal (here identifying passenger cars) than encroaching on first amendment rights then the state must employ those means
    6. Dissent: thought Maynards could still express dissatisfaction w/o obscuring the plate
  1. Pruneyard Shopping Center v. Robins: Pruneyard is a large, private shopping center. Pruneyard has a general rule that no public messages can be posted in shopping center (strictly business). A group of students want to protest at Pruneyard.
    1. 'Two issues:'
      1. Threshold issue: Whether the students have a legal right that overrides the right of the shopping center to use its private property as it wishes?
        1. Usually, no - trespass; however, …
        2. CA law - the students had a right to be on Pruneyard’s private property for the limited purpose of distributing public messages
  • Issue is not whether they had a federal right to gather (which they clearly did not), but rather they had a right under California law (a state can provide broader rights than guaranteed by the Constitution.)
  1. Constitutional issue: Whether Pruneyard has a right to resist an attempt by the state to make their property available for people to broadcast their points of view?
  2. Held: No Pruneyard, you cannot prohibit expression here
  3. Court comes out the other way from Wooley v. Maynard
    1. If the Court were to apply Wooley v. Maynard expansively (i.e. the gov’t can’t make you a platform for messages that you don’t want to convey), then Pruneyard should win, but Pruneyard loses in this case
  4. Distinction from Wooley v. Maynard
    1. Smaller connection between the message being broadcast by the students and Pruneyard than there was in Wooley v. Maynard (no reasonably subjective belief that the message will be attributed to the shopping center – not actually being compelled to speak). Also, Pruneyard could always issue a disclaimer.
      1. No one is going to think the Shopping Center is adopting the views of random people distributing flyers
    2. Subjectively more reasonable for the Maynards to feel closely associated with the motto that they would rather not endorse
    3. The Court finds that this is a significant distinction on the facts
    4. IMPORTANT: In this case, the state itself, California, is not dictating to Pruneyard any particular message that must be displayed (unlike the license plates in NH)—the message is being chosen by private individuals. State is not taking sides; California took a neutral stance here.
      1. State is not talking in terms of content & substance
      2. Neutral rule- under certain circumstances owner of shopping center need to allow speakers; going to apply equally no matter what the cause is (doesn’t matter what the speaker is saying)
    5. State interest
      1. California is advancing an interest that is consistent with the 1A’s purpose of fostering the highest circulation of information possible [search for truth], so the state interest being asserted is stronger than the state interest that is asserted in Wooley v. Maynard
      2. California is aligning itself with the values of the interests of the 1A – dissemination of information
      3. The interest of the shopping owners was small compared to right of expression
    6. Distinguishing Wooley:
      1. Attributable to owner: connection between owner and message
        1. Wooley: tag specific to owners of the car; Ms could plausibly believe that the message was being attributed to them
        2. P: large center – no one is going to believe that the message is attributed to owner
      2. Neutrality of speech
        1. Wooley: specific message being sent: “one side of the argument”
        2. PY: All message could be expressed
      3. Proscription of message by the government
        1. Wooley: message to be sent proscribed by government
        2. PY: government neutral to message; conflicting messages could be expressed
      4. Central purpose of the Freedom of Speech is to provide as many viewpoints as possible
        1. Wooley: encroached upon more here: only one viewpoint
        2. PY: purpose was being furthered: encouraging viewpoint expression
      5. Hurley v. GLIB':' GLIB wants to march in the veteran council’s Irish pride parade and carry their own banner. The council wants to exclude GLIB from the parade. MA required the veteran’s council to allow GLIB in the parade.
        1. Issue: No inherent right of private participating in another private party’s parade. Issue though is that the state has enacted a statute- Massachusetts has ban on sexual orientation discrimination so veteran’s council is obligated to allow GLIB. The constitutional issue, is does the council have a 1A right not to project a message it doesn’t want to (not concerned with 1A of GLIB bc it does have a right given by the state)?
        2. Holding: The veteran’s council has 1A right to not associate w/ GLIB; court upheld right of veteran’s council to exclude GLIB on their banner b/c council had a subjective belief that they didn’t want to be associated w/ GLIB’s message.
        3. Distinction from Pruneyard Shopping Center v. Robins:
          1. Different types of organizations were involved
          2. Pruneyard: Commercial organization in the business of making money (not an expressive association)
            1. Principal purpose is not expressing ideas
            2. Pruneyard could just put up a disclaimer to disassociate themselves
  • Court will assign less weight to the interests of a commercial organization
  1. Hurley: Veteran’s council is more of an expressive association (so more interest in right against compelled speech). The more ideological a group is, the more weight the court is going to assign to its interest against compelled speech.
    1. Not easy for the veteran’s council to disassociate themselves from GLIB’s message in the middle of the parade with the big ass GLIB Banner. Pruneyard could have put up a disclaimer unlike GLIB (court’s practical point).
    2. More likely that people will associate GLIB’s message with the veteran’s council
      1. Veterans just want to express their pride in being Irish-Americans
      2. GLIB wants to express pride in being GAY and IRISH
    3. Veterans have autonomy to choose their own message
  2. Rumsfeld
    1. During don’t ask don’t tell. Law schools wanted to exclude military recruiters from interviewing on campus to protest against don’t ask don’t tell. Law schools saying this violated our right against compelled speech. Ct finds no one is going to think school itself endorsing don’t ask don’t tell. A disclaimer is very feasible.
  3. Right of Expressive Association
    1. In General
      1. If you have a right to speak, you have an implicit right to band together with like-minded individuals who share your ideas (right to get together for the purposes of engaging in those activities protected by the 1A)
      2. Right of expressive association: forcing a group to accept certain members may impair the ability of the group to express those views, and only those views, that it intends to express.
      3. Issue in this area: Whether you can exclude certain people you deem to be incompatible with the purposes of your association
    2. Roberts v. Jaycees: The purpose of the Jaycees, a nonprofit, is to provide young men an opp for personal development and achievement. Regular membership was limited to men btw 18-35; older men and women could be associate members, who couldn’t vote, hold office, or participate in leadership training. A MN statute prohibited gender discrimination.
      1. Jaycees are arguing the negative aspect of 1A right of association –the right to not have to associate with certain people versus the right to associate
      2. Held: Court rejects arguments raised by the Jaycees: rejects freedom of expressive association; rejects allowing women could change their public viewpoints (need to have a basis in something other than just a stereotype or generalization bc generalizations aren’t always true). Gender is a quasi-suspect class.
        1. Women don’t have const’l right to be included but that MN has power to bar discrimination of this sort. And Minn passed a statute that prohibits discrim based on sex. Jaycees as private entity would have had right to exclude; however, MN has a statute. Court is very concerned about implications of letting orgs exclude women on grounds of nonassociation will take to logical step where discrimination is its own justification- court doesn’t want to accept this rationale (equal protection concerns).
      3. Test: Whether the state restriction or compulsion creates a compelling state interest that cannot be achieved through means that are less restrictive of associational freedoms
      4. 'Reasoning:'
        1. The state interest asserted in this case was very weighty
          1. Its compelling interest was classical anti-discrimination; not to discriminate against women.
          2. Once the state elected to curb discrimination, it was advancing an interest of constitutional magnitude
  • The state voluntarily chose to align itself to a Constitutional value
  1. Jaycees failed to show that allowing women would be a serious burden on the male members’ freedom of expression – no concrete evidence that allowing women would really alter the views of the club (networking) or impeded the organization’s ability to continue its activities; they already had some women. Not enough to generalize and stereotype and say women are just different. If they could show a true burden, their rights would trump the statute most likely!
  2. The Jaycees is not primarily an organization that takes positions on public issues and expressing ideas—their primary purpose is business
    1. This is like Pruneyard
    2. The fact that we are dealing with a commercial organization diminishes the amount of weight that the Court is going to assign to the interests of that organization
  • The type of association at issue affects the Court’s decision – this is essentially a commercial organization. Commercial organization’s right of association don’t count as much in face of state’s antidiscrimination statute. So if Jaycees had also been organization expressly dedicated to homogeneity of men and pro glass ceiling then that group has much more powerful argument that admitting women will alter character of their organization.
    1. Aka the Nazi party could exclude a Jew – central to its views
  1. Court emphasized that Minnesota has a broad discrimination statute that is aimed at all discrimination in public places (statute was neutral on its face)
    1. The statute’s neutrality gives it credibility – state would try to enforce no matter the organization; not viewpoint based
    2. Minnesota has applied its law in a neutral, even-handed way (statute was not an attempt to get Jaycees in particular; if there was a LV store that kept out men then MN would have applied the statute in the same way)
  • Note: the Court recognized in Jaycees that an unwanted person in a group infringes on the group’s freedom to expressive association if the presence of that person affects in a significant way, the group’s ability to advocate public or private viewpoints. BUT this can be overridden by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, and that cannot be achieved through (significantly) less restrictive means.
  1. Boy Scouts of America v. Dale: Dale was an assistant scoutmaster whose adult BSA membership was revoked after BSA learned he was “an avowed homosexual and gay rights activist.” New Jersey had enacted an anti-discrimination statute that prohibits discrimination on the basis of sexual orientation. Dale has no const’l right to join BS but const’l issue arises because of NJ enacting discrimination statute on sexual orientation. At issue is actually BS’ const’l right not to associate (not Dale’s right to associate).
    1. Issue: Whether the Boy Scouts have a 1A right to resist New Jersey’s attempt to admit Dale as a member of the organization/ Whether applying New Jersey’s public accommodations law violates the Boy Scouts‘ First Amendment right of expressive association? Would forced inclusion of Dale as an assistant scoutmaster significantly affect the BS’ ability to advocate public or private viewpoints?
      1. Considerations/balance: -The forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints. -Balanced against: Freedom of expressive association is not absolute. The freedom may be overridden by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.
    2. Analysis: Is this case more like Hurley or Jaycees; application is decisive factor
    3. Reasoning:
      1. The Court reasoned that this case was more like Hurley: would change notion of our message to include GLIB or to include Dale?
      2. We are dealing with negative speech rights (as in Hurley) and the right of the Scouts to engage in expressive activity
      3. NJ’s compelling interest doesn’t override BS’ rights (this is unlike Jaycees).
      4. If the Boy Scouts were required to accept Dale, the state would be altering the Boy Scouts’ ability to deliver its message
      5. The creed did not explicitly refer to sexual orientation, but the Court held that homosexually was inconsistent with “morally straight” and “clean,” so it was implicit in the creed (to be morally straight and clean is to not be homosexual). A question for the court however is just how devoted to “nongayness” are the BSA- looks at statements, etc.
    4. 'Dissenters:'
      1. This case is factually distinguishable from Hurley: In Hurley, GLIB wanted to march with its GLIB banner, which would have been an overt, visual clash between GLIB’s message and the veteran’s message. In this case, it won’t detract from the Boy Scout’s message to admit Dale (no indication that he would engage in proselytizing efforts)
      2. Additionally, there are scout masters who believe in gay rights and are opposed to the policy of the excluding gays (BSA tolerates dissidence within their ranks)
        1. Majority responded by saying that the presence of a uniformed, avowed homosexual and gay rights activist sends a different message than a heterosexual who just doesn’t want to exclude gays
        2. Majority believes that Dale is a walking contradiction to the Boy Scout’s message
      3. Factual dispute between the dissenters and the majority: Do the Boy Scouts really believe, as an organization, that homosexuality is wrong?
        1. Justice Stevens: No track record that this is what the Boy Scouts believe; doesn’t believe that this is one of their central tenets
        2. It would be a different case if the Boy Scouts had an explicit policy against homosexuality
      4. 'Problems with both sides:'
        1. Majority: Court doesn’t want to delve into the sincerity of an organization’s beliefs or second-guess how involuntary membership will interfere with their ability to express those beliefs
        2. Dissent (Justice Stevens): If the Court simply defers to an organization on both counts, then the Court is giving the organization the ability to defeat any anti-discrimination law—all that the organization would have to do is claim that opposition to a certain group is one of its values; discrimination laws will no longer apply to membership policies
        3. Possible reconciliation: The majority doesn’t mean what it says (the Court did not defer to the Jaycee’s judgment about the impact of women on the beliefs of the organization b/c it was based on mere stereotyping); not a rule of wholesale deference
      5. ' 'Test If Forced Inclusion Would Be Unconstitutional
        1. First, we must ask if the group is engaging in expressive activity. The first amendment protection of expressive association is not reserved for advocacy groups. But to come within its ambit, a group must engage in some form of expression, whether it be public or private!
          1. Boy Scouts application: as the leaders are to instill the values of the Boy Scouts through expressive activity, the court said yes, this is expressive activity
          2. “Lead by example” à the Scouts are expressing good moral values in young men
        2. Second, we must determine whether the forced inclusion of an individual would significantly affect the group’s (Boy Scout’s) ability to advocate public or private viewpoints, would it burden the group?
          1. Must give deference to the association’s view of what would impair its expression
          2. Dale’s presence would at least give the message from the Scouts that it is okay to be gay – and the Scouts don’t view homosexuality as acceptable behavior
          3. Dale argued that the “morally straight and clean” interpretation was not completely agreed upon by members of the Scouts and many support gays
            1. The majority did address this, however, given that he is a flaming gay activist, having him in the ranks sends a different message than just having some individual members who support gays or even quiet gays in the ranks
            2. Seems like Dale really wants to send the message that he is gay and, in the Scouts.
          4. Court looked at 1991 and 1978 position statements where they said homosexuality wasn’t appropriate
        3. Third, if the forced inclusion does in fact significantly affect the group’s ability to advocate their public or private viewpoints, we must see if there is a regulation that has been adopted to serve a compelling state interest that could override the harm done to the group and force the inclusion anyways!
          1. Looking for a state statute that would (1) serve a compelling state interest, (2) that is unrelated to the suppression of ideas, and (3) that cannot be achieved through less restrictive means.
          2. The statute is to prevent discrimination in public places but it reached into areas where the public is not allowed anyways (applying to private entity)
          3. Public accommodation statutes are allowed when the legislature has a reason to believe that a group is the target of discrimination
          4. Here, the state interest of the NJ Public Accommodation law does not justify the severe intrusion into the scouts right of freedom of expression. (balancing act)
          5. IF THESE ARE NOT MET, then the law forcing inclusion runs afoul to Freedom of Association!
        4. 'Comparing Jaycees with Boy Scouts''''
          1. Difference in the state’s discrimination laws: Court does not treat all kinds of discrimination equally
            1. Gender is a quasi-suspect classification
            2. Sexual orientation is not a suspect classification
            3. Comparing this to Jaycees with equal protection in mind, sexual orientation is not suspect or quasi suspect class, so state interest in sexual orientation discrimination isn’t as weighty. On the scale of private right of non-association against state’s interest of curbing discrimination based on sexual orientation, state won’t get as much weight.
          2. Purposes of the organizations are different: Court will give more deference to an organization’s judgment if it is primarily engaged in expressive activities
            1. Jaycees: Business organization; purpose is not to engage in expressive activity that is protected by the 1A
              1. Saw this also with Board of Directors of Rotary International: CA antidiscrimination statute trumped prohibition against women
              2. “Although the right to engage in activities protected by the First Amendment implies a corresponding right to not have to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends, the evidence in this case fails to demonstrate that admitting women to Rotary Clubs will affect in any significant way the existing members’ ability to carry out their various purposes”
            2. Boy Scouts: Not purely expressive organization; however, they do engage in some expressive activities (mottos, values, oaths, etc.); more expressive than the Jaycees. For right not to associate, court is more deferential to organizations that have some expressive aspects.
          3. Scope of the statement
            1. Jaycees: Made a very broad generalization about women
            2. Boy Scouts: Talking about a particular, identifiable individual (not talking about a wide group of people). Dale has made himself contradictory to BSA by his vibrant gay activism.
          4. The Right to Not Be Punished Under Vague or Overbroad Statutes
            1. 'Vagueness'
              1. Concern: Vague laws that prohibit speech will have a chilling effect on speech if you are a reasonably prudent person.
              2. Don’t want to deter people from engaging in protected speech – people might refrain from exercising their 1A right in fear of being criminally prosecuted
                1. And we don’t want to trap the innocent
              3. “Vagueness” requires a genuine uncertainty about the scope of permissible expression under the statute. Vagueness doesn’t invalidate as many statutes as one might think.
              4. Most laws are vague in one way or another—what we are concerned with in this area is substantial vagueness. Real and substantial doctrine: The vagueness must be real and substantial. (real and substantial doctrine also applies to overbreadth).
              5. Vagueness and overbreadth tend to get blurred together, but they are separate doctrines
              6. TEST: Is it clear what the law or ordinance prohibits, as a whole?
                1. Ex: city ordinance that provides: “no person while on public or private grounds adjacent to any building in which a school is in session, shall willfully make any noise or diversion which disturbs or tends to disturb the peace or other good order of such school.
                  1. The court rejected a vagueness challenge because it thought it was clear what the ordinance as a whole prohibits.
                2. Ex: a state statute provides that any person who “publicly mutilates or tramples upon, defaces or treats contemptuously, the flag of the United States shall be guilty of a misdemeanor”
                  1. Court invalidated statute because the prohibition of treating the flag “contemptuously” failed “to draw reasonably clear lines between the kinds of treatment that are criminal and those which are not.”
                3. Narrowing State Construction Doctrine
                  1. A vague statute can be saved if the court ultimately narrows the scope of the statute
                    1. Statute must be interpreted in such a way to still afford a fair warning to the D
                  2. After that point, the statute is deemed to have that narrowed construction
                    1. Ex: If FL supreme court redefines statute bc vague on its face; think legislature meant incitement under Brandenberg test which state is entitled to do so from that point on the statute will be taken to mean the same as Supreme Ct interpreted it. Statutes construed in such a way to avoid const’l difficulties?
                  3. 'Overbreadth'
                    1. A statute is overbroad if it encompasses protected speech
                    2. The statute on its face reaches a major category of protected speech; aimed at laws that will cover a great deal of speech protected by the 1A.
                    3. Don’t need the Overbreadth Doctrine when one’s speech is already protected by 1A
                      1. Basically, have to be someone whose speech isn’t ordinarily protected to invoke the Doctrine
                    4. Purpose is not necessarily to protect the speech of the defendant; the purpose is to protect the speech of other people in society who will be affected by the statute
                    5. Relatively few statutes are struck down on overbreadth grounds
                    6. Real and substantial overbreadth is taken very seriously by the Court
                    7. If a statute is overbroad, there is a strong preference for just cutting out the unconstitutional parts (rather than throwing out the statute all together)
                    8. Overbreadth challenges don’t generally succeed and only work for facial challenges (would this be unconstitutional in any case? potential applications) not as applied.
  • Narrowing Construction for Overbreadth?
    1. Court must have proper jurisdiction to narrow – court didn’t have jurisdiction in Gooding à yet could SCOTUS could have certified this case to the GA Sup. Ct. as to whether the statute covered the acts at hand and have them narrow?
    2. Court could potentially interpret in such a way as to narrow a statute to cover less speech à remember that there is fair warning when the crime is obvious
  1. Policy
    1. In effect then, the overbreadth doctrine is an exception both to the traditional “as applied” mode of judicial review and to the general rule that an individual has no standing to litigate the rights of third persons --- because a person can claim overbreadth even when their own expression is unprotected.
    2. Why This Approach Under the Doctrine is Good
      1. Necessary because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression
      2. Potential for the selective enforcement of a statute that is overbroad – and therefore it can minimize this danger by restricting the occasions for enforcement
    3. Why This Approach is Bad
      1. Permits an individual whose own rights have not been violated to “go free” or to otherwise benefit because the statute might conceivably interfere with the rights of others -- it therefore unjustifiably infringes on legitimate state interests
      2. Enables the Court to act as “if it had a roving commission” to find and cure unconstitutionality and is thus inconsistent with the fundamental premise of judicial review – that judicial resolution of constitutional controversies is warranted only when unavoidable
      3. Requires the decision of questions not actually presented by the record and thus results in the resolution of important constitutional issues in a “sterile” abstract context
      4. Promotes judicial disingenuousness, for it invites the court to escape possibly difficult decisions concerning the constitutionality of the statute as applied so long as it can say that there could be potentially unconstitutional applications
      5. The Court can invalidate a statute for overbreadth without explaining precisely how the statute should have been drafted to pass constitutional muster, leaving legislatures with little or no guidance.
    4. Gooding v. Wilson: This is the case where police officers were transporting the D, and D used unprotected fighting words (said “White son of a bitch, I’ll kill you.”). D could have been convicted under a narrower statute that particularly went after fighting words, BUT he was convicted under a statute that prohibited abusive language.
      1. Held: Court held that this was an overbroad statute, and D cleared of charges
      2. Reasoning: This was an exception to our normal rule of standing. Usually, you can only assert your own Constitutional rights. When your own speech is assumed to be unprotected, you are asserting the rights of those whose own speech would be penalized by the statute. (D’s language was not protected.)
        1. People that need overbreadth doctrine are people whose speech is not protected. If your own speech is protected, you would not be able to raise an overbreadth challenge—you would only need to raise a 1A claim.
          1. Essentially bringing a claim on behalf of other people to be able to exercise their 1A rights- invoking others’ 1A rights who will be affected by the breadth of the statute.
        2. You have a right not to be convicted under a statute that is unconstitutional even if your own right is not protected.
      3. The government in this case said that the law only banned “fighting words” but Georgia appellate decisions have not construed the statute to be so limited to just fighting words “abusive and opprobrious” may be interpreted to be broader than to just cover fighting words.
      4. ** Remember that you have certain rights against the government that you don’t have against your employer and remember that criticism of public officials is about as protected speech as you can get - lies at the heart of the 1A.**
      5. Compare to Chaplinsky: Where he challenged the constitutionality of the statue as inhibiting freedom of expression because it was vague and indefinite.
      6. However, the statute was narrowly drawn and limited (by the courts?) to define what specific conduct would be punished – this was at the state level, so allowed?
    5. Broadrick v. Oklahoma: State law that restricted the political activities of civil servants. The plaintiffs conceded that the state could constitutionally prohibit civil servants from doing what they had done – solicit funds for political candidates. BUT they argued that the law was constitutionally overbroad because it attempted to also prohibit civil servants from engaging in regular and innocuous speech and thus constitutionally protected activities such as displaying political bumper stickers.
      1. Held: upheld the statute –was not overbroad
        1. Noted that plaintiffs could bring suit even though their speech itself was not injured—on behalf of third parties that could be injured.
      2. REASONING
        1. “Although laws if too broadly worded, may deter protected speech, there comes a point where the hypothetical (this could happen) becomes too drawn out and can’t justify invalidating a statute
        2. “We believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.”
        3. Chief Justice Burger’s position/limitation in Gooding was adopted here – see top of case.
        4. “Because the statute regulates a substantial spectrum of conduct that is manifestly subject to state regulation, it is not substantially overbroad and whatever overbreadth may exist should thus be cured through case-by-case analysis of the fact situations to which its sanctions assuredly may not be applied.
      3. DISSENT (Brennan)
        1. His problem was that the majority holding did not define what substantial overbreadth was
  • Los Angeles City Council v. Taxpayers for Vincent: Substantial overbreadth means that “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the court.” The mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.
  • New York v. Ferber: upholding a child pornography statute as not substantially overbroad that prohibited any person to produce, exhibit, or sell any material depicting any “performance” by a child under the age of 16 that includes “actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, lewd exhibition of the genitals”
  1. The Right to Hold Public Employment and Receive Other Public Benefits Free of “Unconstitutional Conditions”
    1. In General
      1. The gov’t cannot make receipt of a benefit conditioned on you refraining from exercising your constitutional rights. The gov’t can’t condition receiving a position in gov’t on inhibiting 1A right to associate or prohibiting 1A right to speech. Gov’t could argue independent grounds for firing someone and that the condition wasn’t a substantial factor.
        1. Ex: Mt. Healthy- same decision test.
      2. Even if you’re dismissed for reasons that violate free speech from public position, if gov’t can sustain its burden that they would have dismissed employee anyway or cut off benefits anyway and had nothing to do with individual’s speech then SCOTUS will uphold.
      3. Key question: is it matter of private concern or public concern
      4. While can’t dismiss someone for bad reason, you can dismiss someone who doesn’t have security on their position for no reason at all.
    2. Hypothetical: Could Florida ban membership in a non-religious club?
      1. Variation: Suppose you work for Donald Trump who really hates this club. He finds out that you are a member of the club. So, he finds out and fires you. Would you have any constitutional right to overturn that dismissal?
        1. No because he is a private employer. The Constitution does not really talk about private conduct but rather deals with governmental conduct. If it’s of public concern, though, then may be protected. Archie example?
      2. Variation #2: You work in the Fla AG’s office. Your immediate supervisor in the AG’s office finds that you were a member of the club and fires you for that reason. Is that ok?
        1. It’s not that you have a constitutional right to public employment, but you do have a right not to have your receipt of a public benefit (employment) conditioned on exercising a Constitutional right. So, the government cannot penalize you for exercising a right.
  • Another hypo: Go on a joke spree against Joe Biden.
    1. Dean Widener, though, is a big fan of Joe Biden. He finds out that Stern has engaged in this rant and fires him for that reason. Is this ok?
    2. Commentary on the public officials is the central meaning of the First Amendment*. If there is any type of speech that is going to get protection, it is that.
      1. Only way to describe that is to give breathing space. Even if that means protecting false speech, it’s within the balance
    3. 'TEST'
      1. Was there an adverse employment action motivated by the employee’s speech?
      2. Is the expression a public or private concern? (Only public speech is protected)
      3. If public, is the employee speaking as a citizen, or as an employee? (Garcetti)
      4. Balancing test (Rankin)
        1. Employee’s interest versus the government’s interest
      5. Defendant has a chance to prevail if he or she can show the same decision would have been made in the absence of the exercise of the constitutional right
    4. Mt. Healthy City School Dist. Bd. of Education v. Doyle: Establishes the doctrine that, even if the state dismisses someone b/c of his or her exercise of 1A rights, if the state can demonstrate an independent reason for dismissing the person, the terminated employee is not going to succeed in a 1A claim
      1. This case establishes a causation rule
      2. Some concern will be incentive for concocting reasons for firing someone
      3. If you can establish that your exercise of a 1A right was a substantial motivating factor in the decision to dismiss, the state has a substantial burden to show that they would have fired you for independent reasons anyway
      4. If state can persuade the Court that all that was involved was a matter of private concern (i.e. a run of the mill employment matter) rather than public concern (i.e. commentary on public affairs), then state is almost invariably going to win
        1. The Board could then show by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct.
      5. If someone does not have the sort of security as tenure, then that person can be dismissed for any reason at all Doctrine of Unconstitutional Conditions, you can’t be dismissed for a reason that violates the first amendment
        1. Stern: What does it mean to be dismissed for no reason at all?
      6. Rankin v. McPherson (1977): Employee, clerical worker, made a statement relating to assassination of the President. The statement in this case did not do much harm b/c it did not relate to the employee’s job. This is not considered a true threat bc what she is really saying is I dislike the president, just a commentary on president’s policies. Unlike threats, this is speech that gets the highest form of protection because commentary on a public official.
        1. Held: SCOTUS overturns her claim’s dismissal because it was commentary on a matter of public concern.
        2. Rationale: a State may not discharge an employee on a basis that infringes on that employee’s constitutionally protected interest in Freedom of Speech.
          1. Test: Have to balance the employee’s interest in making the statement with the gov’t’s interest. Court said it’s a matter of form, content, and context. If it is public concern, then move on to next phase- a balancing test: the court balances the 1A interest someone has against the government’s interest of efficiency of public services the gov’t performs.
            1. 'Factors Court looks at in balancing test:
              1. Court looks at employee’s degree of responsibility= minimal.
              2. What is the actual impact of the statement on the functioning of the office= the office did not go haywire. The impact was minimal.
              3. The effect of the statement on the public’s perception of the officer= no, no evidence that the office’s perception went downhill.
            2. LOOK AT:
              1. Who made the comment, different result if Constable had made statement
              2. Context in which made: made in private, kind of aside to another employee (though entirely preempted now if statement made in official duties as employee, Garcetti)
  • Statement didn’t interfere with efficient functioning of office; nor did she discredit office
    1. Speech occurred in an area where there is normally no public access; her statement was made in private to another employee. No member of general public was present when she made her statement
  1. The caution that an employee must pay depends on the extent of authority and public accountability the employee’s role entails à look to see if employee has a confidential, policymaking or public contact role
  2. Court is closely split in this case:
    1. Wide gulf between the majority and the dissent over whether the substance of the speech warranted dismissal
    2. Both sides consent on the larger issue that if an employee’s speech is incompatible with the mission of the department (i.e. there is a functional relationship between the speech and what the employee does), the employee can be dismissed
    3. Dispute is over how this principle works in this case (i.e. whether this speech is incompatible with her job)
      1. Majority: This is not incompatible with the mission of the department
      2. Dissent: This is incompatible with the mission (“You can’t ride with the cops and cheer with the robbers”)
    4. Notes: The fact that the Court protects the speech in this case underscores the notion of the special place of speech on matters of public concern—particularly criticism of public officials—has in the hierarchy of protected speech
      1. Strategy of the employee is the mirror image of the strategy of the employer
        1. Employee’s strategy:
          1. Need to persuade the Court that your commentary qualifies as a matter of public concern (if it is a matter of private concern, you lose); need to make it sound as lofty as possible
          2. Also have to show that the speech does not affect your work or undermine function of that particular gov’t office (need to make sure that the critique was not part of the official communication of the job)
        2. Employer strategy:
          1. Need to persuade the Court that this is a personnel matter/matter of private concern
          2. Need to show that, on balance, this speech is incompatible with the mission of the department or is sufficiently disruptive
          3. Mt. Healthy: Same decision test—can show there is an independent reason for firing the employee that has nothing to do with speech
          4. (this is all on assumption that employee speaking as citizen and not as an employee. Garcetti short circuits analysis. Don’t get into analysis if employee spoke pursuant to his official duties.)
            1. Garcetti: speech more protected if you put it into the form to an editor as citizen rather than as office memorandum or something considered as part of your duties.
  • Garcetti v. Ceballos
    1. “When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom”
    2. Held: First Amendment does not prohibit managerial discipline based on an employee’s expression made pursuant to official responsibilities – he was acting in his official capacity as an assistant state atty and not just as a citizen, and therefore, his speech was afforded less protection.
      1. There’s a Pentagon worker and his job is to report government waste. He writes a memo on costs overrun with a contractor, and he is subsequently fired for the memo. Garcetti indicates that the memo (and his speech in the memo) may not be protected.
      2. Don’t frame speech as a personal grievance. If it’s in philosophical terms, it may be okay. People may not be liable for First Amendment protection if any grievance is in a document written in the execution of official duties
    3. Patronage
      1. Patronage firing is allowed in some circumstances
        1. If the particular political affiliation is important to the function of the person’s employment
        2. If they make policy decisions or have access to confidential information, then it’s a factor to consider, but not definitive.
      2. It is also a decent argument to say that patronage dismissals preserve the democratic process
        1. However, patronage dismissals are not the least restrictive alternative to achieving the contribution they make to the democratic process
        2. Again, patronage is a very effective impediment to the associational and speech freedoms which are essential to a meaningful system of democratic government
  • Elrod v. Burns':' patronage hiring and firing. In 1939, Congress passed the Hatch Act, prohibited the vast majority of federal employees from engaging in active political campaigning/soliciting. Some employees wanted to engage in political campaigning & challenged the constitutionality of the Act, the Court had struck down those challenges. The new sheriff was a Democrat, and when he entered office, he fired the Republicans. No question factually.
    1. Argument: Violation of doctrine and violation of freedom of association has been violated; sheriff has adopted a policy that it as a condition to work in his office that you associate with the Democratic Party.
      1. Sherriff says he can do so because of Hatch Act; tried to say patronage was needed to insure effective government and efficiency of public employees
        1. Court said doubtful that the mere difference of political leanings motivates poor performance AND there are less drastic means for achieving government effectiveness à firing anyone who is bad at their job
      2. Sheriff argued this would promote political loyalty of employees and therefore their policies would not be undercut by those w/ different views
        1. But the Court said that they should limit patronage dismissals to just policymaking positions à this would be sufficient to achieve the governmental end. Other non-policymaking employees only have limited responsibility and are therefore not in a position to thwart the goals of the in-party.
      3. Sheriff also said that patronage dismissals preserve the democratic process
        1. Overall, the patronage system does more harm than good to the democratic system as it is a very effective impediment to the associational freedoms which are essential to a meaningful system of democratic government.
      4. Holding: The sheriff can’t fire people just b/c they are Republicans; sheriff can’t make employment in his office contingent on having certain associations.
      5. Reasoning:
        1. B/c of the Court’s ruling with respect to the Hatch Act, not engaging in political activity can be part of a job requirement. That is not what is going on in this case, however.
        2. In the Hatch Act cases, there is a blanket rule against engaging in political activity (neutral rule), whereas with sheriff’s office it is aimed at particular party.
          1. In this case, there is discrimination based on a person’s political associations
        3. Court hinges decision on distinction b/t neutrality & discrimination
        4. Court is skeptical of restrictions aimed at particular groups or viewpoints.
      6. Another difference between the Hatch Act and what the sheriff is trying to do
        1. In the Hatch Act, Congress was trying to protect the 1A freedom to not associate (can’t be forced to engage in political campaigning)
        2. What the sheriff is doing, however, is just giving a payoff to his loyalists—the sheriff is not trying to align himself with 1A values
      7. Other principles
        1. A public employee can’t be dismissed simply for criticizing a public official in general terms (Rankin v. McPherson)
        2. Can’t dismiss a public employee b/c of political affiliation
      8. DISSENT (Powell) – thinks Patronage stimulates strengthening parties, making government more accountable and everyone on the same page
    2. Branti v. Finkel: The first amendment prohibited the discharge of the two public defenders solely because they were Republican and thus unable to give necessary Democratic sponsorship. There is a presumption that being of the same political party as the employer is not a necessary requirement. Most of time can do their job without being of same political party as supervisor. The burden will be on the employer to prove otherwise.
      1. Elrod said that party affiliation may be acceptable requirement for some types of gov’t employment. But party affiliation is not always necessary to every policymaking / confidential position.
      2. Test: The agency head has to demonstrate that a certain political affiliation is an appropriate requirement for effective performance of the job.
        1. Do you need the employee to be in political sync w/ public employer?
          1. Here a public defender could not be conditioned on politics. Policymaking in the PDs office deals with individual clients, not politics.
        2. This basically said if you want to get rid of someone on the basis of their political position, you have to show that they are in a policymaking position. The underlying question is whether party association is a sufficient requirement for performance of that position.
        3. More specifically, the ultimate inquiry is not whether the label “policymaker” or “confidential” fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.
      3. Note: Court has extended this rule to hiring and promotion, as well as firing
    3. Abood v. Detroit Bd. of Education: Abood was a public-school teacher. Michigan statute said public school teachers had to pay union fees. Abood does not want to pay the dues b/c he is opposed to the idea of unions & that the union is supporting political campaigns that are not related to collective bargaining.
      1. Abood has 2 objections:
        1. Abood is opposed to collective bargaining in public sector.
        2. Additionally, union gives money to political campaigns and Abood opposes them.
      2. Claim is rooted in right not to associate. Abood doesn’t want it to be a condition as public school teacher that he has to associate with this union and support political campaigns they object to because violates right against compelled speech.
      3. Rule: Can force people to give money for something that is germane for the purpose of the organization, but not for activities not germane to the organization.
      4. Holding: Abood has to pay the dues in so far as those funds are going to matters or activities that are going towards collective bargaining
        1. Free rider problem—don’t want people to be able to avoid paying dues yet still get the benefits of the union; concerned that there would be competing unions. On balance, the state’s interest is greater than individual’s right against compelled speech.
        2. However, Abood can deduct from the dues the portion that is used to make the political contributions. That portion don’t relate to core mission of the union.
      5. Abood is still good law but has been criticized. May later be overruled.
    4. Board of Regents of the University of Wisconsin v. Southworth – Doctrine of Unconstitutional Conditions – Student activity fees went mostly to paying for services and activities that are generally available to everyone, but a portion of the fees went to specialized student organizations.
      1. Argument: Being forced to support organizations whose viewpoints they disagree with is a violation of their const’l right against compelled speech, right “not to speak”. Doctrine of unconstitutional conditions is never invoked by itself. Most always be invoked with a constitutional violation (ie., right against compelled violation).
      2. Issue: Is student activity fee and amount that goes toward ones that don’t support, is it germane to the larger mission of the university? Can’t be forced to provide funds to those that don’t further mission of university.
      3. Holding: Can’t get a deduction for any of the student fees. The Court rejected this challenge so long as Univ. Wisconsin showed that there was viewpoint neutrality in the allocation of the resources and funds to the various clubs
      4. Reasoning:
        1. The mission statement of the university related to promoting student discussion in a wide range of ideas and subjects
          1. Underlying theme that U’s are the place of discussion and tolerance
        2. Court is not going to get into the business of determining what is germane to the organization and what is not
        3. Court gives the university the broad discretion to assess the fees
        4. The problem is that although it’s a valid principle generally, everything is germane to university’s mission. Universities are in business of promoting knowledge and thought. So all of the different associations that engage in expressive activity are engaging in the mission of the university. University is a place that is devoted to discussion, debate, and so forth.
        5. Also problem of manageability of apportioning each student’s fees.
        6. However, the Court would be skeptical if there was discrimination and the university departed from the central principle of neutrality
        7. Strength of gov’ts interest in this case of promoting wide dissemination of ideas and information and so even though University of Wisconsin didn’t have to have activity fee, it was advancing 1A and will be ascribed significant weight.
          1. Sort of like Hatch Act. Hatch Act passed to shield federal employees from being effectively forced to support causes and caditiates they didn’t like. Meant to protect compelled association.
        8. Note:
          1. If you look at what Wisconsin is trying to accomplish and weigh that against what the students are seeking, the state interest is an interest to which the Court will attach a considerable amount of weight
          2. Wisconsin is trying to promote discussion/debate, consistent with the 1A
          3. Goal of 1A to promote widest dissemination of ideas & info possible
          4. Compare to Pruneyard:
            1. Pruneyard: California compelled the owners of the mall to open up their premises for speech; Can’t favor one message over another –all ideas have to be treated equally in such a place of free discussion
            2. Southworth: Wisconsin is promoting ideas and information; once it voluntarily elected to do so, it was promoting a 1A value like the one that California was voluntarily promoting in Pruneyard
  • It helps if the State can align itself with a 1A interest

Categories of Expression Traditionally Accorded Lesser Protections[edit]

    1. In General
      1. Trilogy of expression that is accorded lesser protection: Commercial speech, Defamation, Obscenity
      2. Operative notion: These are categories of expression that have traditionally received a lesser degree of 1A protection & are types of expression that are so far removed from the 1A’s central purpose that they do not deserve full protection. Don’t serve the larger, instrumental means of advancing truth.
  • 2 level theory of Freedom of Speech, some get full protection & some gets less.
  1. Gov’t wants to restrict this kind of expression b/c each can cause certain kind of social harms
  2. Political speech is the luxury penthouse and obscenity is the basement, gets virtually no protection.
  3. Commercial Speech
    1. In General
      1. Definition of Commercial Speech
        1. Speech that refers to a specific brand name or product or service
        2. Made by a speaker with a financial interest in the sale of the advertised product or service
        3. That does not advertise an activity itself protected by the First Amendment
          1. no advertising of illegal activity or lying/deceptive advertising
        4. Receives the most protection out of the three types of expression in this area, substantial but not 100% protection.
        5. However, the Court still adheres to the idea that commercial speech occupies a somewhat lesser place in the hierarchy of free speech—don’t have the same kind of importance as political speech; doesn’t make the same contribution to the marketplace of ideas.
        6. Usually dealing with restrictions on advertising
        7. Generally, the gov’t can’t compel speech. In commercial realm, the gov’t has considerably more leeway than in other areas to require advertisers to include certain information or to include it in a certain way.
        8. The Court will generally be more questioning of restrictions that place restrictions on certain types of speech/things (content specific) rather than generalized (content neutral)
        9. HYPO: a US company who makes the most DVRs or provides the most service. It’s thriving. Then a foreign company comes along and makes and markets a better product. But there’s a treaty to prevent us from excluding the sale of the foreign product. Congress enacts a law that prohibits advertising on TV for the foreign product. Congress figures if they can keep the product under wraps, then people will buy the American product.
          1. However, Congress can’t legislate against advertisement. They can encourage people to buy American. Legislation cannot involve suppression of the expression of accurate information (unless it involves matters of national security).
        10. HYPO: Let’s say you want to advertise to sell a 2 oz. bag of cocaine – there’s an ad that says it’s 100% pure, cartel guaranteed, no false or misleading speech on your part. Can the state stop you from advertising the cocaine?
          1. Yes, if the product or service is illegal, you can’t advertise it, see Virginia Board
          2. NOTE: having poor taste is not going to be sufficient grounds for striking down advertising, or we can’t restrict speech just for having poor taste
        11. You can’t remove your ad from the definition of commercial speech (bolster it), simply by tying it to a public issue
          1. Ex: “worried about global warming, have a cold Coors lite”
          2. Ex: condom company tried to make their advertising about a public issue --- reproductive health, etc. and the Court said no, there's a product here, it's commercial speech
        12. Virginia Board of Pharmacy v. Virginia Citizens Consumer Council: ban on the advertising of the prescription drug prices. Two harms were alleged: (1) would affect reputation of pharmacists & (2) people would go w/ cheaper-lower quality medicines
          1. Holding: Law is invalid. Even in the commercial area, the state cannot prohibit speech on the premise that the dissemination of speech and ideas is dangerous or harmful. All other commercial speech jurisprudence flows from this case.
            1. Even though commercial speech is afforded lesser protection, the court will look skeptically upon restrictions that are targeted at a particular message and whose rationale is that the impact of the message is likely destructive.
            2. In general, the 1A prohibits speech based on the assumption that enforced ignorance is the legitimate way to achieve a goal – or that knowledge is so dangerous that it has to be suppressed.
            3. The ban is only based on the assumptions of how people will react
          2. Reasoning:
            1. Court condemns the premise that ignorance is a virtue
            2. The 1A contains a powerful presumption that information is not dangerous and cannot be suppressed
            3. Better to let people have the information and make up their own minds.
              1. Society has a strong interest in the free flow of commercial information
            4. Speech does not lose its 1A protection just because money is spent to project it – money talks and counts as speech, expression
          3. Important principle: The antidote to bad speech is more speech.
          4. Notes:
            1. This case goes a long way in revolutionizing the area of commercial speech with respect to the 1A
            2. Concern is not just concerned with the rights of advertisers; also interested in the free-flowing transmission of ideas
            3. Court also concerned w/ free speech rights of person would get this info
              1. In the public interest to be well informed! Especially for the poor, sick and aged; they need to know the best deals for products/drugs out there!
            4. Court seeking to protect both listeners and speakers!
            5. First resort isn’t censorship. Look for something less restrictive.
          5. Dissent by Justice Rehnquist
            1. Rehnquist would have stuck to the traditional commercial speech doctrine
              1. Thinks this will allow for the promotion of drugs, liquor, etc.
              2. Thinks people should have free flow of info for social, political and other public issues but not info about drugs
  • This flies in the face of legislative judgment
  1. Regulation should have been subject to rational relationship
  2. If you accept Rehnquist’s premise, then his conclusion is correct: there is at least a rational relationship between the regulation and a valid purpose that the State is entitled to have
  3. Majority’s response
    1. This is the price you pay for having the 1A
    2. Benefits of freedom of speech outweigh the potential consequences
    3. We presume that people will act in their own best interests and not mishandle the information
    4. The answer to the problem is to provide people with more and better speech, rather than choke off access to the information
  4. Note at the end: the court reaffirmed that the content of the speech, rather than the speaker's commercial or profit motivation, is determinative.
  • 'Zauder v. Office of Disciplinary Council: Rules prohibiting the use of non-deceptive speech or images in printed legal advertising violate First Amendment free speech protections.'
    1. Requirements
      1. Light scrutiny applied to regulation – words the gov’t is requiring advertisers to include have to be “reasonably related” to a legitimate purpose (warning from danger, making sure consumers know what’s in the product for dietary purposes, to make sure the ad is truthful and not misleading). This relationship will typically be found.
      2. Another requirement: the gov’t requirement of certain kind of warning can’t be unduly burdensome on advertisers. However, the court tends to find that these requirements aren’t unduly burdensome.
      3. Warning has to be clearly factual in nature. The gov’t can’t use a gov’t-imposed warning as some kind of platform for the gov’ts own propaganda. Typically talking about legal product but that the gov’t disapproves of, ex: cigarettes.
    2. Bates v. State Bar of Arizona: Two Arizona lawyers ran a newspaper advertisement for their legal clinic, indicating that they offered legal services at very reasonable fees. The advertisement listed the defendants’ fees for the routine legal services offered at their clinic.
      1. Held: Court invalidated a state court rule prohibiting attorney advertising
      2. Reasoning: The government argued that this was different than VA State Board of Pharmacy because lawyers are not like pharmacists. If you look at the nature of this service, it’s pretty objective for a pharmacist to just advertise a certain type of drug. But for lawyers, the nature of the relationship is different. Attorney/client relationships are really built on trust and loyalty. In the case of most services that lawyers provide, you can’t really set a price because it will vary case-by-case and client-by-client.
        1. Court rejected the State’s argument that the attorney advertising would adversely affect professionalism. There was not sufficient justification that allowed for the suppression of speech at play.
        2. But when it comes to the rationale that the BAR is looking at here, it’s the same as Virginia Board! They’re basically using the same thing and keeping people ignorant and in the dark, which is impermissible. It does not suffice to say that consumers are going to be better off if they’re less informed because they’re not sophisticated enough to handle this information and make decisions for themselves. This is the type of paternalism the First Amendment disapproves of.
      3. Stern: “we don’t want people to think that lawyers want money!” In the years after Virginia Pharmacy, the Court reaffirmed and expanded protection of truthful, nondeceptive commercial speech
    3. Central Hudson Gas v. Public Service Commission: The Public Service Commission imposed a general ban on the advertising of utilities. Commission permitted electric utilities to engage in informational advertising but prohibited promotional advertising because they wanted to further increase the conservation of energy.
      1. First, the court listed the types of commercial speech that do not get protection, and recognized that commercial speech is accorded less protection that other constitutionally guaranteed expression
        1. Advertising illegal activity, false and deceptive advertising, true advertising that risks becoming false and deceptive (i.e. professionals advertising under trade names, attorneys doing in-person solicitation)
        2. Commercial advertising can be limited to achieve other goals such as enhancing the image of lawyers, decreasing consumption of alcohol or tobacco products, decreasing gambling, etc. things that aren’t good for society
      2. Four-part test for evaluating restrictions to commercial speech:
        1. Advertising must be legal and not misleading (threshold question)
          1. if illegal or misleading, stops here.
        2. Government’s interest in favor of the restriction must be substantial (gov’t’s interest will almost always be substantial)
          1. Here, interest was energy conservation
        3. (If first two are met then) Regulation must directly advance the gov’t’s interest (2 & 3 almost always met)
          1. Occasionally this is where the state will fail; not as hard to pass as 4th prong, court will look to see if reasonable link b/w ban and interest
        4. Regulation has to reach no further than necessary (if you can accomplish goal through a more modest restriction the regulation will fail the test)—court extends fairly substantial protection to speech under this strand
          1. This is most typically where restrictions on commercial speech are struck down; here ban went further than needed; struck down.
        5. Holding: Court invalidated the statute that prohibited the promotional advertising. State did not need to go this far to promote its interest in conservation
        6. Reasoning: State could have provided an exception for products in the public interest; could have required disclosures
        7. Dissent
          1. Rational relationship test should apply
          2. State should have a broad authority to regulate advertising (but the Court has clearly rejected this argument)
        8. Notes
          1. Court will protect commercial advertising that is truthful
          2. State still has a broad scope to regulate or ban commercial speech that is misleading (don’t have that same latitude in the area of political speech)
          3. Gov’t has more power to compel speech in commercial area than it does in other areas, really is a RR test, but can’t be “unduly burdensome” – e.g. if it’s more expensive or totally dominates the commercial message
        9. Florida Bar v. Went For It
          1. Court Upheld a rule which prohibited any lawyer from sending a written communication to prospective clients to obtain professional employment if it was personal injury unless the accident occurred more than 30 days prior.
          2. Court said this protects the privacy and tranquility of the victim.
          3. Sustained the ban since Florida had a substantial interest in preventing this type of communication. It falls in the same general principle of solicitation.
  • Liquormart, Inc. v. Rhode Island (1996)
    1. Holding: Invalidated a statute that prohibited advertising in any manner whatsoever of the price of any alcoholic beverage
    2. Reasoning: 1A is skeptical of banning truthful, nonmisleading commercial speech just because it is offensive, or the public will act irrationally. 1A directs us to be especially skeptical of regulations that seeks to keep people in the dark for what the government perceives to be their own good
      1. The state argued that this should be upheld since it promotes temperance. But there was no evidence that this ban would significantly advance the states interest. Speculation is not enough.
      2. Also, this is more restrictive than necessary. There were alternate forms of regulation such has higher prices / taxation or educational campaigns.
      3. The legislature does not have broad discretion to suppress truthful, nonmisleading information.
    3. GOVERNMENT CANNOT KEEP LEGAL USERS OF A PRODUCT OR SERVICE IGNORANT IN ORDER TO MANIPULATE THEIR CHOICES IN THE MARKETPLACE
  • Lorillard Tobacco Co. v. Reilly: Regulation governing the advertising of cigarettes and smokeless tobacco. Prohibited outdoor advertising.
    1. Holding: The regulations were preempted by federal law with respect to cigarettes and they violated 1A for advertising.
    2. Reasoning: This failed the last part of the Central Hudson test. The broad sweep showed that the regulation was too broad. This would prevent 87-91% of the advertising in Boston. This doesn’t show a careful calculation. Also, this is a legal activity.
      1. “The State’s interest in preventing underage tobacco use is substantial, and even compelling, but it is no less true that the sale and use of tobacco products by adults is a legal activity.”
      2. Tobacco retailers and manufacturers have an interest in conveying truthful information about their products to adults who have a corresponding interest in receiving truthful information.
      3. State has failed to show that these regulations are not more extensive than necessary to advance the State’s substantial interest in preventing tobacco use.
    3. THE asserted government interest in keeping people ignorant by suppressing expression is per se illegitimate and can no more justify regulation of commercial speech than it can justify regulation of noncommercial speech
  1. Thompson v. Western Sales Medical Center: This involved compounding of drugs. State made argument that people learning of this option would cause them to ask doctors and put too much pressure on doctors for prescriptions. Fear that people were going to go crazy for drugs.
    1. Court struck down ban on advertisement of compounded drugs; gov’t did not meet the fourth prong of the test – too excessive and alternatives to ban could be sought. “We have previously rejected the notion that the Government has an interest in preventing the dissemination of truthful commercial information in order to prevent members of the public from makings bad decisions.”
  2. Regulating the means of commercial advertising
    1. City of Cincinnati v. Discovery Network: motivated by its interest in safety and attractive appearance of its streets and sidewalks, Cin revoked respondents’ permits on the ground that the magazines were “commercial handbills” who distribution on public property could be prohibited.
      1. Issue: whether the city met its burden under Central Hudson to establish a “reasonable fit” between its legitimate interests and its ban on news racks dispensing commercial handbills?
      2. Held: No. Court held this prohibition was an impermissible means of responding to the city’s admittedly legitimate interests
      3. Reasoning: The major premise supporting the city’s argument is the proposition that commercial speech has only a low value – so the fact that the city allows more valuable news racks does not undermine its judgment to prohibit these handbills to “promote safety and make the city prettier”
        1. Court: this is an insufficient justification for the discrimination against respondents’ use of news racks that are no more harmful than any others - there is no relevant distinction between those racks allowed and those prohibited
      4. Zauderer v. Office of Disciplinary Counsel (compelled disclosure): Atty advertised “if there is no recovery, no legal fees are owed by our clients”
        1. Held: upheld disciplinary rule that the atty must disclose in the ad that the client would still have to pay “costs”
        2. Reasoning: State may require advertisers to disclose information if it is reasonably related to preventing deception à because the extension of the 1A protection to commercial speech is justified principally by the value to consumers of the information such speech provides, the state may constitutionally require advertisers to disclose specific information in their advertisements
  3. Defamation
    1. In General
      1. Defamation is less worthy of protection than commercial speech. No dispute that state has very strong interest in protecting people’s reputation from harm, why this gets less protection. Stems from ancient idea that reputation is profoundly important to dignity of individual.
      2. Defamation isn’t same as libel law technically, but we will use defamation and libel law synonymously.
      3. Why do we protect defamation at all?
        1. BECAUSE 1) we don’t want to chill speech, 2) preserving breathing space à we want people to speak what they think and speak the truth; we don’t want people living under a regime where they can’t speak; we don’t want people to restrain their speech under the fear that they are going to be held liable
      4. Hypos
        1. Tallahassee Democrat publishes something untrue (drugs) about an FSU law student, but it wasn’t malice only negligence
          1. In this situation, as the student is not a public figure, he would have a much better chance of prevailing
          2. Only need to prove negligence
          3. Defamation of private figure hinges on whether the plaintiff is asking for presumed damages
            1. If you want presumed damages, and all you can prove is negligence, you must prove that the defamatory statement was on a matter of private concern
            2. If it’s on public concern, in order to recover, you must prove the statement was made with reckless disregard or known falsity
              1. In theory, that could make a big difference because you would have to prove actual damages
  • Just committing a crime doesn’t make you a public figure, but committing a high-profile crime may
  1. Star magazine can’t make someone a public figure by invoking their name - Can’t manufacture your own defense
  2. You’re a democratic partisan. Editor of a major newspaper. Basically, make some disparaging remarks about a person and running them so often that if you have been reading these editorials you’d think that the person really has a malicious attitude.
    1. Let’s say a source you have relied on in the past presents a great story that the politician has taken a bribe from the wheat industry. The reporter gives you substantial evidence and a photo where the politician is having lunch and handing the person an envelope.
    2. Then it turns out that this story is totally false.
    3. What are the politician’s chances of recovery? Would have to show malice or reckless disregard for the truth. Because the politician is a public official, the analysis would imply that either you must have known that the case was false or did so with reckless disregard.
      1. Those are terms of art: person acted with knowledge that the knowledge was false
      2. Negligence does not arise to this level
        1. Fundamental divide between actual malice and negligence
        2. Simply showing negligence is not enough to enable a plaintiff who is a public official to prevail in his case
  • New York Times v. Sullivan: Under CL, false statements of individuals that damaged their reputation received no 1A protection. There was essentially a strict liability standard, just had to show that the statement was false. In this landmark case, the Court struck down an Alabama defamation statute.
    1. Note:
      1. This was the first case that gave Const’l protection to defamation; extended robust protection and brought defamation under 1A.
      2. Three justices believed that there should be absolute protection for defamation relating to public affairs or public officials
      3. New York Time’s standard: public officials have to prove actual malice in order to win a defamation claim à meaning the defendant knew of the falsity or acted with reckless disregard for the truth!
    2. Four Part Test for Public Figure to Recover
      1. The person must be a public official or running for public office
      2. The plaintiff must prove his case with clear and convincing evidence
      3. The plaintiff must prove falsity of the statement
      4. The plaintiff must prove actual malice – that the defendant knew or should have known that the statement was false or acted with reckless disregard for the truth
    3. Curtis Publishing Co. v. Butts; Associated Press v. Walker (NY times extends to Public Figures): D published an article falsely accusing P of conspiring to fix a football game between BAMA and UGA (was the athletic director of the University of Georgia). In the other fact pattern, claimed that news falsely reported riot on the Univ of Mississippi saying that Plaintiff2 encouraged it. Plaintiff2 a private citizen at the time of the riot and publication had pursued a distinguished military career and was a figure of national prominence. Trial judges had found the D’s liable. On appeal, the Defendants maintained that NY Times should govern as that they thus could not be found liable without proof that they had published the story either knowing it to be false or with reckless disregard of the truth.
      1. Issue: Does the New York Times cover public figures as well as public officials? YES
      2. Holding: NY Times applies to public figures as well as public officials, so the actual malice standard will apply to public figures à both plaintiffs here were public figures
      3. Reasoning: People who are not public officials can still be involved in the resolution of important public questions, or by reason of their fame, shape events in areas of concern to society at large. These public figures have the same access to mass media both to influence policy and the counter criticism of their views. Therefore, there’s little to no difference between them.
    4. Principles relating to defamation
      1. Public officials/public figures:
        1. Have to prove that there was actual malice or a reckless disregard for whether the story was true or not - very difficult standard to meet. “Actual malice” = term of art meaning made false statement, knowing it was false or recklessly disregarding whether it was false
          1. If only can show negligence by not looking into info more carefully won’t meet the actual malice standard.
          2. Very tough threshold to meet for plaintiffs to show D really knew or intended malice. Plaintiff public officials almost never prevail.
        2. Sliding scale for a public official
          1. The higher you are in gov’t, the more every aspect of your life is deemed relevant to your public office
          2. The further down you move, the closer the defamation has to be to your public office in order for the actual malice standard to apply.
            1. So, if police officer, you are public official for some purposes, but most of the time a private figure. What would it take for you to be a public official? Defamatory statement would have to be about or bear on your position: story about police officer beating suspect, in that case police officer would have to demonstrate actual malice. But if officer had affair, then that won’t trigger absolute malice standard.
          3. Public figures can get their message out more easily than private figures, so it is easier for them to recover (public figures can use the media to get their message out). Ex: Beyoncé is public figure. They have more access to channels of communication.
          4. Public figures voluntarily inject themselves into the public—they have accepted the risk that they will be subject to this kind of criticism
          5. Limited Public Figure: most litigated cases. To inject yourself into particular controversy for purpose of influencing the outcome of that controversy. Ex: say strong feelings on whether Senator x should be next president of FSU and you get very involved in debate. Say someone accuses you of taking a bribe for Senator x. For that particular accusation, you would be a limited purpose public figure because the statement relates to the particular controversy, which you have injected yourself.
        3. Private citizens
          1. Private citizens only have to prove negligence, not actual malice
          2. Default status is private figure; unless demonstrated public figure
          3. Private citizens don’t deserve to have to face this barrier b/c they have not injected themselves into the public limelight
          4. If you have private figure, and the speech is on a matter of public concern, person would not get presumed damages for just showing negligence and maybe not get actual damages; however, if proved actual malice then would get damages. Proof of actual malice by plaintiff opens all doors. But private figure and private concern than get presumed and punitive damages assuming jury willing to award them.
        4. State laws regarding defamation:
          1. There is no such thing as an intrinsic right to sue someone for defamation
          2. State could constitutionally say don’t need a defamation law by statute or common law
          3. The state must enact a law that imposes penalties for defamation
          4. These cases provide a minimal amount of protection that states must provide for defamation
          5. States can choose to not regulate defamation at all or can choose to protect defamation more than the 1A requires (for example, the State could set an actual malice standard for all figures)
        5. Fact versus opinion
          1. You cannot be sued for defamation if all that you are making is an opinion- protected under 1A.
          2. You can express whatever opinion of someone that you want
          3. A fact is something that you could prove or disprove in court
          4. Context is crucial here. When vague (few facts), there is a strong presumption of considering statement an opinion.
          5. Examples of speech that have a strong presumption of opinion
            1. Letters to the editor, Restaurant reviews, Talk shows, Humor
          6. Grey area = facts wrapped in form of opinion, especially insinuations aren’t protected.
          7. Avg. reasonable reader is the standard, have to consider in context, not statement in the abstract.
        6. Reasons for protecting defamation
          1. The very existence of the statute could discourage people from engaging in otherwise protected speech – chilling effect – self-censorship and valuable speech won’t make it to the marketplace of ideas
          2. We want to protect defamation so that we can protect other speech that matters
        7. Tension between liability for defamation and the 1A
          1. There is no Cont’l value for false statements of fact
          2. However, under the 1A, we leave it to the marketplace of ideas, not the gov’t, to determine which ideas have value
          3. Fundamental principal that gov’t doesn’t get to decide what is deserving of protection.
          4. Defamation could be characterized as something more akin to action/quasi conduct – a verbal assault (Brandeis Whitney conc counter-speech not really effective here.
          5. Remedy for counter-speech doesn’t work in these situations (lies might outpace the truth), hard to erase the taint
          6. Self-governance rationale of 1A – protect speech on matters of public issue/concern (which includes about public officials)
        8. Another virtue of the defamation doctrine
          1. Law applies across the board; neutrality
          2. Doesn’t matter what your ideological cause is
          3. Illustrates the democratic rationale for free speech: flip side of chilling effect is breathing space pertaining to public officials (but what do celebrities have to do with this?- public figures have an impact too)
          4. Not random that New York Times v. Sullivan became vehicle for protection of public officials. Defamatory statement has to be concerning plaintiff, and this ad didn’t mention Sullivan. And was small scale.
          5. Generally, we protect speech because we say best way to counter it is with more speech; but there are some instances when that remedy won’t be fully effective and that’s the thinking with defamation. Truth seems not to catch up with a lie.
        9. Gertz v. Robert Welch, Inc.: Gertz was a lawyer in a high-profile case; he did not thrust himself into the public; he was just doing his job, but there was an article run on him that accused him of framing the police officer.
          1. Held: Gertz was not a limited purpose public figure
          2. Reasoning: Gertz did not achieve any general fame or notoriety in the area despite service in his past and despite his community involvement. He did not “thrust himself into the vortex of the public issue/controversy.” Therefore, as a private figure, the standard that Gertz had to prove was only negligence on the part of the defendant newspaper because he did not have ample channels of communication to rebut the false claims
          3. Two types of public figures
            1. All-purpose public figure: Includes celebrities and public officials
            2. Limited public figure: Not a celebrity, but you injected yourself into a public controversy, such as the building of a town Super Walmart.
          4. Note: When cases do reach the Supreme Court, the Court is usually inclined to find that the person was a private figure. Trying to strike a balance between protecting reputation and protecting speech.
          5. Remember: Under the Constitution, there is no such thing as a false idea, but there is not constitutional protection for false statements of fact.
  • Dun & Bradstreet v. Greenmoss Builders: Petitioner is a credit reporting agency that provides subscribers with financial information about businesses. He sent a report to 5 subscribers about respondent, a construction contractor, who filed a voluntary petition for bankruptcy; however, this was false.
    1. The State interest here is identical to the one weighed in Gertz, but the first amendment interest here is less important than the one weighed in Gertz
      1. Not all speech is of equal first amendment importance
      2. Speech on matters of public concern is at the heart of the first amendment's protection, and speech concerning matters of private concern is of less first amendment concern
      3. When speech concerns matter of private concern, there is no threat to the free and robust debate of public issues, and there is no potential interference with a meaningful dialogue of ideas concerning self-government
      4. The States interest adequately supports awards of presumed and punitive damages- even absent a showing of actual malice
    2. Under these circumstances, if the subject matter of a story is deemed a matter of public concern, in order to recover presumed damages (without evidentiary showing harm to reputation) you have to show that the D acted with actual malice
      1. On the other hand, if the subject matter were deemed a matter of private concern, then as soon as she shows negligence, she is entitled to presumed damages (end of evidentiary burden)
        1. Don’t have to demonstrate that your reputation was actually harmed
        2. Identical rule for punitive damages
      2. Draws a distinction between presumed damages and actual damages with respect to damages to your reputation
        1. Presumed damages: Assume that there is harm to your reputation
          1. Matter of public concern: Have to show actual malice
          2. Matter of private concern: Only have to show negligence
        2. Public figure/public concern transmutation
          1. If there is a public figure with a public concern, you have to show actual harm to your reputation in order to recover damages
          2. Otherwise, actual malice is required to recover presumed damages
        3. Dissent (Brennan): Under Gertz, respondent should be required to show actual malice to receive presumed or punitive damages
      3. Obscenity and Other Sexually Oriented Materials
        1. In General
          1. Obscenity is a term of art
          2. Principle of value skepticism (in the eyes of the Court, all opinions stand on the same plane; gov’t can’t enforce value judgments) waived in realm of obscenity
          3. Obscenity is an anomaly in the realm of 1A jurisprudence. If the government has a rationale relationship for blocking obscenity, the law will be upheld
          4. Usually, the gov’t has to comply with strict scrutiny in order to ban speech
          5. Obscenity is regarded by the court as more like conduct than speech; being turned on serves as the vehicle for the speech, so barely speech
          6. Obscenity doesn’t have a lot of educational or societal value
          7. Obscenity is treated as a pariah, or outcast, of expression (or not even expression at all); has conduct dimension to it. Counter to that position though, is that conduct isn’t peculiar to obscenity, for example some ads are meant to mostly arouse emotion.
          8. Obscenity is the kind of activity that the gov’t is permitted to regulate all of the time (more akin to a physical stimulus)
          9. If you can figure out what obscenity is, gov’t doesn’t have to afford it protection
          10. Fallibilism: 1A assumes gov’t is fallible. We don’t suppress any idea no matter how unpopular they may be. As we begin to explore obscenity doctrine, raises question as to whether the court has suspended normal premise of fallibilism for obscenity. So much of the doctrine is rooted in lack of value, lack of worth. And seems at tension with our ideals of the fallibilism.
        2. Hypos
          1. Hypo: There is a porno shown in South Beach, and most people thought it was a great and successful film. The film is then brought to Tallahassee, and the local prosecutor decides to prosecute the film and its creator. The producer said, well we’ve shown it elsewhere, and no one has complained!! This would not be a valid excuse à obscenity is determined by community standard; community-by-community.
          2. Hypo 2: Same film, except at the very end, Atkinson appears at the end of the film and he gives lecture on the obscenity of the film. Would this be a successful prosecution? It would have to be a question for the jury of how much value this speech at the end adds to a valueless film. Is a 10-minute speech enough to add value to an hour of trash?
            1. Question from Miller: whether on the whole, the work lacked artistic, political or social value à you can’t have an hour and 18 minutes of depravity and then try and redeem it with 18 minutes of social value.
          3. Hypo 3: Movie that satirizes religion in Tennessee. The people are particularly upset, because the film is disrespectful of religion. How will this prosecution fair? It won’t succeed! There has to be a sexual nature for the film to be obscene! Obscene means a work that meets all three prongs of the Miller Standard! So constitutionally, under the First amendment, something is not obscene if it does not have a sexual nature.
          4. Hypo 4: Tally says there is has been over-the-top political rhetoric, and so the city adopts a zoning ordinance that says that any such bookstore whose material consists substantially of this rhetoric must be over a mile away from each other. This would not be allowed under the First Amendment! Political speech receives the upmost protection à hugely important to protect speech against our public officials.
  • IDEA: Is obscenity a thing of the past, with the new technology and the availability and access of sexual material on the Internet, on TV and through DVDs, etc. Are we numb to it? Do prosecutors really only care about the worst of the worst, like child porn at this point?
  1. Roth v. United States':' 1st majority opinion the Court handed down dealing with obscenity
    1. D violated a federal statute prohibiting the mailing of “obscene publication”
    2. If something is deemed to be an obscenity, then it is not protected.
      1. “All ideas having any redeeming social importance have the full protection of the laws, unless they encroach on limited areas of interest”
    3. Test: Whether it appeals to a prurient interest - patently offensive, utterly w/o redeeming social values.
      1. How to know if factors met? Case specific
      2. Judges would watch the films to decide – “I know it when I see it”
    4. Miller v. California: Contemporary community standards
      1. Issue: The application of a state’s criminal obscenity statute to a situation in which sexually explicit materials have been thrust by aggressive sales action upon unwilling recipients (Miller sent 5 unsolicited ads for adult books).
      2. Miller shift from Roth: Court judges work as a whole.
      3. Test:
        1. Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to a prurient interest
          1. Invokes lustful thoughts
        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, has no serious literary, artistic, social, or political values
      4. Holding:
        1. Affirm the Roth holding that obscene material is not protected by the 1A.
        2. Hold that such material can be regulated by the States, subject to the specific safeguards enunciated above, without a showing that the material is utterly without redeeming social value and
        3. Hold that obscenity is to be determined by applying contemporary community standards.
      5. Notes:
        1. We don’t permit this kind of analysis with respect to other types of speech
      6. ' 'Paris Adult Theatre I v. Slaton': Theater was showing adult films, but took precautions to warn people, exclude minors, and nothing was on the outside of the building. GA shut it down.'
        1. Held: States have the power to make a morally neutral judgment and ban obscene material altogether
          1. Principle concerns: Quality of life; public safety; preserving the community
        2. Rule: Content-based restrictions on obscenity are acceptable, even if only adults view the obscenity, if legislature can come up with plausible argument for ban
          1. Here, legislature argued that the movie disrupted quality of life b/c it debased the feel of community and b/c it is arguably correlated with crime
            1. Petitioners argued that there was no scientific data which conclusively demonstrates that exposure to obscene material adversely affects men and women in our society.
          2. Legislature had no actual conclusive evidence of this, but Court did not require conclusive evidence
        3. Reasoning:
          1. Gov’t was not able to prove that the movie increased crime –note that obscene material turns people on and that is more like conduct than is persuading people by communication and ideas.
          2. Court applied a relaxed standard of scrutiny (don’t have to show a definite link between theaters and crime)
          3. Would be enough if obscenity might have these impacts, arguably related to crime
        4. Dissent (Brennan): Thought this was too broad of a ruling and could spill over into protected speech. Thought if consenting adults are watching, it should be fine. Thought that the deterrents for crime and antisocial behavior should be education and punishment, not restriction of first amendment rights.
  • Jenkins v. Georgia: The Court will not entirely trust juries on the matter of what material is considered obscene. This case involved a movie that was laughably tame; sex was understood to be going on in a few different scenes, but the cameras weren’t focused on the actors and there was no showing of genitals, etc. “No just could consider this to constitute a portrayal of sexual conduct in an offensive manner. Nudity alone is not enough to make material legally obscene.”
  • Ashcroft v. ACLU: Court held that a federal statute regulating obscene material (of children) on the Internet was not invalid on its face because it applies local community standards in determining whether particular material is obscene, even though individuals posting sexually explicit material on the Internet have no control over the geographic areas in which the material is accessible. O’Connor did note that while valid on its face, the internet speaker’s inability to control the geographic location of their audience might be too much to ask and would suppress too much expression
  1. Young v. American Mini-Theaters, Inc.: Detroit zoning ordinance required that no adult theaters be too close together or too close to other regulated material, and not too residential. The Court, in a plurality opinion, upheld the constitutionality of the ordinances. Ordinarily, zoning is not acceptable to create a constructive ban on 1st amendment speech. Court is going to be lenient w/this regulation than it would with say books of political nature
    1. Rule: Form over substance– claim is that the restriction targets the form of the expression (vivid movies instead of dry books) rather than any particular viewpoint or message. Ex: a movie may be obscene but a book with the same expression may not be.
      1. This kind of distinction is not a neat dichotomy – often, a work’s message is intimately related to the vehicle in which it is portrayed
    2. Rule: Secondary effects– material that can produce adverse effects in a neighborhood (making it seedy with undesirable transients, declining property values, etc.) can be basis for sustaining zoning ordinance.
      1. Gov’t can limit expression not because of the fear of the ideas that expression conveys, but because of secondary effects.
    3. Notes:
      1. The ordinance encompassed considerably more than the expression that would constitute obscenity under the Miller standard, material can be erotic w/o being obscene; Court using rational relationship test
      2. The gov’t ordinarily could not ban books based on the belief that the message is dangerous
      3. Different than Paris Adult Theatre: in the Detroit case they weren’t focusing on just obscene things in their zoning laws, but on all erotic things - movie theaters, book stores, whatever
      4. Even the portion that is not considered obscene is going to be afforded less protection than something like political speech
    4. Justice Stevens plurality opinion
      1. This is more of a “manner” restriction
      2. Believes that this is a content-neutral restriction (only regulating the manner in which the idea is presented)
    5. Notes on “manner” restrictions
      1. When gov’t restricts sexually oriented or erotic material, it is not aimed at a particular message—gov’t is only targeting the manner of the message
      2. However, what a person says is usually inextricably bound up with the manner in which the idea is being expressed
      3. Particular means of conveying the message may be part of the totality of delivering that message
    6. Additional justification
      1. Not objecting to message; objecting to harms associated w/ those works
      2. Regulation is aimed at these secondary effects
    7. Child Porn, Animal Cruelty & Violent Expression: The Court’s Conclusion that Obscenity can be Regulated Inevitably Invited Analogies
      1. New York v. Ferber: Court upheld NY statute that prohibited knowingly producing/selling material containing sexual performance by child under the age of 16. The State can ban Child Porno even if not obscene
        1. Held: pornographic depiction of children, like obscenity is unprotected by the 1A
        2. Reasoning: Court gives a laundry list for upholding the statute, but overall wants to discourage this behavior due to the impact that it has on children
        3. What saves the statute:
          1. New York is going after the statute to keep children safe
          2. Two harms: Psychological harm; control production of materials that requires the sexual exploitation of children
  • Not concerned with people committing predatory crimes or concerned with the images themselves; concerned with the harm to the children themselves à state has interest in protecting well-being of minors
  1. Comes down to a causal link between the material and the actual exploitation and the harm done to children
    1. We can assume that children are not giving meaningful consent and these images are permanent and people can see them! Stern views this as more compelling argument than that this is making people predators à note how this aligns with Ashcroft
  2. The difference between this and Miller is that a trier of fact need not find it appeals to the prurient interest of the average person; not required that this content involving children be done in patently offensive manner
  3. Not targeting the communicative impact of the speech
  4. Ashcroft v. The Free Speech Coalition: The federal gov’t passed a statute that included a prohibition against computer-generated imagery of minors. The Court struck down this statute
    1. Gov’t’s rationales:
      1. Afraid that people exposed to these images will commit predatory crimes
        1. Court holds that this rationale is too attenuated for causation
        2. This rationale is not enough under the 1A
          1. Gov’t cannot ban material because of its feared communicated impact – cf. to commercial speech cases
        3. Need to have a more definite line of causation before the speech can be suppressed
        4. Communicative impact rationale is not going to be supported by the Court (Ferber)
      2. Concerned w/ protecting children b/c images could be so lifelike that the law enforcement would not be able to discern what is real and what isn’t
        1. Court rejects this argument
        2. Reason: b/c gov’t says it is worried about communicative impact on those that see the material, Court cannot uphold the statute, b/c the 1st amendment does not permit that kind of theory
        3. Burden runs against gov’t when proceeding on that kind of theory
        4. Shows how high the hurdle is under the 1A to suppress material where you don’t have the same kind of primary, underlying harm in the production of the material
      3. Why in Line with Ferber: here, there are actually no children being harmed. Ferber dealt with the product of the work, not its content. The means or the vehicle, NOT THE CONTENT. Here, targeting the content; and there is no immediate harm to children by these computer animated films.
      4. Ashcroft, Hudnut: No question that some material prohibited by each would qualify as obscenity, but the reason we don’t use Miller is because the rules include prohibition on things that are not obscene.
    2. Pornography and the Victimization of Women: This shows the sometimes-high price that we pay for freedom of speech
      1. American Booksellers v. Hudnut':' Indianapolis anti-porn ordinance that banned sale of porn that depicted women in subordination; not obscene just degrading and humiliating- this was a content-based restriction so invalid on its face. The idea that women are meant for domination is an expression of a particular point of view. Argument for statute seems to be “bad tendency” argument under incitement; we don’t ban speech that is dangerous merely bc it may have a bad influence on the way people think
        1. Notes:
          1. Trying to ban materials that have effect of degrading women (this is not about obscenity; this is about promoting equality of women; thought that dissemination of this type of material cultivates image of women as affirmatively preferring abuse, violence, and humiliation and when people are exposed to this type of material they are going to develop hostile attitudes toward women and often times act out violently) or even just the message that women should play a subordinate role in society
          2. Court is sympathetic with the goals of feminists, but it has a problem with the means used to achieve those goals. Problem under 1A isn’t with the good cause and larger aim but with the means the state has chosen in this case. Stern believes that the 7th circuit got it right. Ordinance is appealing as it is a noble cause-equality of women, prevention of violence- but on other hand it’s exactly why we need 1A. We don’t need 1A to protect speech that is popular but when it is nasty and hateful and completely violates our deepest beliefs.
  • Difficult issue, but under our 1A scheme, you can’t make an exception for this kind of material
  1. Need 1A to protect ugly speech and Court thinks this is better left to the market place of ideas to be fettered out
  2. Reasoning
    1. Fatal flaw = the ordinance targets material by viewpoint—the key criterion was whether women were portrayed favorably; violates notion of fallabalism. Every idea no matter how pernicious is given equal opportunity in the marketplace of ideas.
    2. Premise of the viewpoint is that speech is dangerous
      1. Bad tendency theory– people exposed to this are going to act on these ideas – this clashes with fundamental 1st amendment tenets
  • Under fundamental 1A values, the gov’t is not permitted to discriminate by viewpoint or perspective, so the ordinance fails
  1. Tendency to cause people to commit crimes is not enough—not enough to show that exposure to certain ideas will produce an atmosphere that causes certain kinds of behavior to be more likely; not enough of a causal link; not sufficient for censorship. This goes back to Brandeis- 1A embodies idea that speech can be dangerous but the way we counter those potential dangers is by more speech, counter speech, promoting positive images of women and punishing those that do commit crimes. Not for gov’t to decide which material is worth entering the marketplace and which isn’t.
  2. The statute is a good idea, but it is not enough to suppress speech
  3. The reason we protect noxious, nasty material isn’t because we think it has any worth, but because once you go down that road of censorship you end up sweeping up speech that really is worthwhile. Ct is concerned with slippery slope.
  • So, the 1A does have costs and the costs are painful
  1. Another issue not addressed in this case: Vagueness (ex: would James Bond movies also be included in this statute?). Stern doesn’t think that if drafted ordinance better than it would have past 1A muster; inevitably going to run in kinds of problems it ran into bc features that render this in violation of 1A would have made it invalid even if drafted differently; real problem with arguing for harm later down the road- can’t satisfy the causal connection btw distribution of this type of material and the rate of crime.
  2. US v. Stevens – ct struck down ban on depictions of animal cruelty à court said, of course you can ban actual animal cruelty, but we’re not going to say this conduct is so unprotected as to ban all images of it. Court said should we to uphold this law, there would be too many instances which might be considered animal cruelty, but can’t be captured in exception which might receive 1A protection (bull fighting)
  3. Brown v. Entertainment Merchants Ass’n: low value but protected
    1. CA ban on violent video games to children without parental permission
    2. Gov’t argues minors’ exposure to violence causes development of violent impulses. Bad tendency theory
      1. Scalia says many books, etc. are violent & available to kids & not banned. He also points out that people are always alarmed when new forms of expression come along, yet they are all recognized as forms of expression
    3. Not total ban, only minors, which is OK sometimes like abortions.
    4. Don’t have a tradition of limiting access to violence like do w/ sexual content
      1. So, can’t be quite compared to obscenity
    5. Scalia says falls w/in realm of 1A & targets particular content (content based); therefore, Ct will apply strict scrutiny, which is almost automatically fatal. Means CA needs to come into ct and make overwhelming empirical demonstration linking violence and exposure to those games. Stern thinks that ban would have passed rational basis test, but failed strict scrutiny test, much harder standard.
    6. It’s not crazy to imagine kids becoming more violent from these games!
    7. Once falls w/i realm of 1A normal rules apply
    8. Ban found to be both under inclusive and over inclusive. Under inclusive because we would expect CA to also target violent cartoons, tv shows, and the like.
    9. Need much stronger evidence of harm to ban

Public Forums and Access to Other Governmental Property[edit]

    1. In General
      1. People can’t just solicit you on your private property—universal principle that you should be left alone in your home
      2. Hypos
        1. Hypo – You’re at home. There’s a knock on the door and there’s a middle-aged guy in a suit who steps into your living room without your invitation and says that he’s here to collect petitions to support the crackdown on Egyptian uprising. You’re not very interested in hearing this and you tell him to leave and he resists.
          1. He does not have a right to stay. He is trespassing.
          2. “an uninvited guest may not exercise general rights of free speech on property owned”
        2. Hypo #2 – Let’s say that he then heads out to a park in Tallahassee and starts speaking again about the issue. A police officer comes along and says that we don’t allow political speech in the park. Is there any difference here?
          1. This is in a public park. He has a lawful right to the public park because it is a public forum. The public forum doctrine.
          2. This is also a special type of public forum. This would be a classic public forum.
  • Public forum: certain public property that has always been available for speech and other expressive activity like distributing pamphlets; therefore, city/state can’t entirely foreclose property from the expressive activity. Historical rationale.
    1. Public forum covers two lines: (1) parks and streets and (2) all other publicly owned property (why people can loiter outside of the courthouse)
    2. Functional reason – prior to modern digital age ban would effectively discriminate against the poor, rich will have alternative ways to disseminate their message
  1. 'Public Forum Doctrine'
    1. There are certain places that “time out of mind” have been used for public discussion of public issues, and therefore the state may not foreclose those areas altogether from that type of activity
    2. Minimum right of access to places like parks. Can’t close one and give access to another, can’t abridge 1A right b/c you’ve provided an alternative.
    3. Doctrine bans superficially neutral laws/ordinances but which in effect discriminate against people with less means who only have public forums to get their message out.
    4. Difference between viewpoint and subject matter discrimination – your view on a political issue versus banning all political discussion
  2. Evolving Doctrine''''
    1. Commonwealth v. Davis (the original rule): D was convicted under an ordinance that forbade any public address/speech on publicly owned property except in accordance with a permit from the mayor.
      1. Held: the court affirmed the conviction. Reasoned that the legislature has control over the use the public may make of such places. “Constitution does not have the effect of creating a particular & personal right in the citizen to use public property in defiance of the constitution and laws of the State.” State could absolutely prohibit the exercise of 1A rights on public property.
    2. Hague v. CIO: Ordinance banned all public meetings in the streets and other public places without a permit. The Court struck down this ordinance!
      1. Rule: Public parks and public streets are immemorially (historically) places of gathering for expression! Constitutional origin of public forum doctrine.
      2. Famous principle by Justice Roberts:
        1. There is an irreducible minimum amount of speech that the state has to allow in a public forum
        2. Can’t close off something like a public park from speech altogether – perhaps unless for health or safety reasons
          1. The government can’t require you to go to another park
        3. Rationales rest largely on history – public parks and streets have always been used this way so public has inherent right of access to this type of public property.
      3. The ordinance effectively prohibited expression, rather than regulating safety and morals.
  • Schneider: Viewpoint neutral ordinance prohibited the distribution of pamphlets b/c gov’t didn’t want to litter public parks. Argue most people won’t be interested in these pamphlets and not going to throw them in trashcan. There are reasonable interests.
    1. Holding: Court held the city’s interest in keeping the streets clean and in good appearance was an insufficient reason to justify prohibiting the distribution of leaflets on public property.
      1. There is a balance of weighing city/state interests against an open forum of communication à state interest must be pretty damn strong and access to a public forum outweighs government’s interest in no litter
        1. Notwithstanding the ordinance, this is a public forum, and a minimum amount of speech must be allowed. 1A has such strong interest in preserving this property for communicative purposes so city is going to have to sacrifice its interest.
      2. Reasoning: The interest in preserving the public property for 1A, for expression, outweighs the state’s legitimate interest in preventing litter in the parks. Although there are alternative methods of communication, there is still a utility in having these public spaces available.
    2. Police Dept. of Chicago v. Mosley: Mosley was peacefully picketing outside of a school because of racial discrimination with a sign that said, “Jones HS hates black ppl.” Chicago ordinance prohibited picketers near a school, except for protest related to labor disputes. City tried to argue that there was an interest in keeping picketing from disrupting education.
      1. Category II – designated public forum
      2. Holding: Ordinance was struck down
      3. Reasoning:
        1. This was a discriminatory ordinance: “We hold that the ordinance is unconstitutional because it makes an impermissible distinction between labor picketing and other peaceful picketing”
          1. The only way the city could say this is if it can show that labor picketing is clearly more peaceful and less disruptive than other types of picketing and the court rejected the argument that nonlabor picketing is more prone to produce violence than labor picketing
        2. Extension of the normal principle of the 1A’s prohibition against discrimination based on content – the 1A also strikes down subject matter discrimination (regulating what people are allowed to protect about)
        3. Can’t discriminate on the basis of subject matter. Says here’s a kind of speech we think is worth having, but not other kinds. Gov’t wasn’t taking side on particular issue but was discriminating among issues à 14thA is closely intertwined with the 1A interests.
        4. Once you open up certain kinds of property for expressive activity, you have to open it up for other types of expressive activity. Was singling out certain kind of speech.
      4. Equality of Ideas & Discrimination Against Ideas
        1. There is an emphasis on the principle of equality that is implied or embodied in the 1A—equality of status in the field of ideas
        2. Discrimination is always going to be suspect; Court will be suspicious
        3. Cited as 1A case, but 14A principles intertwined.
      5. Limited public forum (this isn’t a classic public forum, isn’t a park or street):
        1. State could have chosen to block speech altogether
        2. Fundamental difference btw this type (designated public forum) and classic public forum like public park is that plaintiffs not arguing that state is required to provide irreducible minimum access. City could have banned picketing across board (might be valid), but once having opened up this particular public area, it was required to do so on equal basis and not discriminate based on subjects.
        3. However, once the state chooses to open up the property for communication, it must do so on an equal basis
        4. **This is not to say that all picketing must always be allowed – there can be a time, place and manner restriction on picketing!**
      6. The standard of review of the ordinance will be higher when the city distinguishes between labor and non-labor speech than when it acts in a content-neutral manner
        1. Counter: but the ordinance was meant to allow some expression, so the standard should be more lenient – won’t fly
      7. Underinclusive (where statute prohibits some conduct but fails to prohibit other similar conduct)
        1. When you have a general ban but make an exception, that is going to undercut the credibility of the gov’t’s justification for the ban in the first place (doesn’t look like you really believe that the interest in banning speech is that strong in the first place)
        2. A blanket ban is a pretty justifiable position for a restriction on speech
      8. Limitations on Mosley
        1. Court has not given full effect to this sweeping doctrine
        2. Court is willing to uphold exclusions for certain types of public property, if you can support the exclusion on the basis of some kind of policy rationale (especially if to preserve character of the property in the first place)
      9. Carey v. Brown: Ps participated in peaceful demonstration in front of the house of the mayor of Chicago. Statute said couldn’t picket in front of the residence unless the residence is a place of employment involved in the dispute. Held: this was the same as Mosely, invalid. This gave preferential treatment on some views over others. Labor disputes could be freely disseminated while other discussion was restricted.
      10. Widmar v. Vicent: Univ. of Missouri adopted regulation that prohibited the use of univ. buildings for religious worship/teaching. Court invalidated the regulation. Universities may have many of the characteristics of a public forum. But they are still different than streets and parks; Univ. must show that its regulation is necessary to serve a compelling state interest and that it is narrowly tailored to achieve that end. Here the Univ. claims a compelling interest in maintaining a strict separation of church and state. Court recognized this was a compelling interest, BUT it does not follow that an equal access policy would be incompatible with the Establishment Clause. A religious org’s enjoyment of merely “incidental benefits” does not violate the prohibition against the primary advancement of religion.
    3. Restricted Forum''''
      1. Greer v. Spock: Defendants were trying to distribute anti-war information at Fort Dix. Court upholds blanket restrictions on all demonstrations generally, especially political speeches; also bans distribution of information without prior permission. **banned all political speech – didn’t take sides**
        1. Issue: Whether Fort Dix is a public forum?
        2. Holding: Fort Dix (Military bases) is not legally a public forum (Cat. III)
        3. Note:
          1. Cases in which the court has not taken Mosley literally, but instead allowed gov’t to maintain certain types of distinctions in access. Gov’t can sometimes restrict speech to preserve property for its intended purpose.
            1. The state has the power to preserve property under its control for the use to which it is lawfully dedicated. And the purpose of a military base is to train soldiers, not to provide a public forum
            2. To allow this would compromise the political neutrality of the military and it may encourage people to identify the military with certain viewpoints.
            3. Divisive ideas come with speech and we want a united military!
          2. In the realm of military matters (national security), the court is going to be a bit more deferential than it would otherwise be.
          3. This is not the quintessential public forum; not a type of property that has generally been opened up for expressive purposes
          4. Court is going to give the military leeway to conduct its mission without having to ensure that the soldiers are exposed to views that are critical of that mission
          5. There can’t be an overt prohibition based on viewpoint, but in terms of a balance to the military’s inherent message, there is no obligation to provide a counter, as long as they have an opportunity to leave the base if they want to be exposed to other views (to solve the captive audience problem – the soldiers aren’t a captive audience if they can leave)
          6. Court will often modify its ordinary scrutiny when it is dealing with the military
        4. Policy: The military bases should be politically neutral; should preserve the distinction between the role of a soldier and the role of a citizen
        5. How the Court squares away this policy of exclusion with the anti-discrimination principle:
          1. There are no exceptions in this case—the ban applies equally to everyone
            1. Stern says this is really the basis for deciding the case, but the gov’t still must give some form of justification, and it did.
          2. There is not a heavy-handed discrimination whereby the base is letting in favored groups and excluding unfavored groups.
        6. Connection with Mosley
          1. The base let in other civilian speakers and entertainers who have been invited to speak
          2. This is a good illustration of how the Court is not literally embracing the decree of Mosley; because this is also discrimination on basis of subject matter as in Mosley.
        7. Dissent
          1. Justice Brennan argues that the regulations are not really neutral b/c military organizations are not really value-neutral
            1. He’s saying the military has a certain function and mission and instills certain values within soldiers – the values of war
          2. Arguing that the military is showing one view of combat (pro-combat) and when people show up to counter that view (peace, not war), they are excluded
          3. Counter: Military is carrying out the mission of the gov’t, and they can do what they need to in order to carry out that mission - you can’t expect the military commanders to express the role of the military and then have someone come in and talk about peace, completely against the mission
            1. A monk in a monastery wouldn’t say, we’re going to tell you about the other side of the coin, about being a whore;” No.
          4. Powell’s concurrence: they aren’t in prison or being brainwashed; they can go off base and hear different viewpoints.
        8. Classification of Forums''''
          1. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n: Involved two rival unions. The official union that Perry has chosen to represent their teachers has access to the mailboxes. The losing union argued that b/c the schools gave mailbox access to places like the YMCA, it had created a “designated public forum” (Cat 2) and therefore, both unions had to be granted access.
            1. Holding: This is a non-public forum.
            2. Reasoning:
              1. This is Category 3 which is public property that is not traditionally designated a forum for public communication. Here, the state may reserve for the forum its intended purposes as long as the regulation is reasonable and not an effort to suppress expression!
              2. The school shut off the mailboxes to certain groups
              3. The fact that they have the restrictions (selective access) shows that they did not want to open up access to everyone, and this is not a public forum.
                1. The mailboxes have a certain capacity and the school has to draw a line somewhere.
              4. Gov’t has a shot at having property classified as nonpublic simply by having the restriction in the first place – circular logic, b/c restriction is limited access.
              5. Not discriminating based on viewpoint—this is discrimination based on speaker identity or status! There were also alternative means for the other union to reach out to the teachers
                1. The Court doesn’t get into this detailed analysis, however—once it determines that there is no public forum, the school can limit access
              6. Basically here, the justification is Status. The status of the one union as the exclusive representative of the Perry teachers. The other union didn’t have official responsibility in connection with the school.
                1. When speakers are similarly situated, the state may not pick and choose. Conversely, on government property, that has not been made a public forum, not all speech is equally situated, and the state may draw distinctions that relate to the special purpose for which the property is used.
                2. Invitation by status makes it a non-public forum. Not allowing everyone in and not designating an area for speech. The government isn’t designating the school as a place for anyone to distribute materials, it is reserving access for certain individuals which can be done in a nonpublic forum.
              7. DISSENT (Brennan): Gov’t can’t do viewpoint discrimination – once it allows discussion, it can’t pick and choose viewpoints. Gives exclusive access based on viewpoint – majority says no, exclusive access based on status!
                1. Also, apparently the union’s use of the mailboxes was completely confined to official business; questionable if restriction based on status
              8. How the Court Treats Restrictions Based on Property Category
                1. Restrictions on Classic Public Forums (parks and streets)
                  1. Can’t prohibit all speech. Irreducible minimum of access.
                  2. Content-based exclusions must be narrowly tailored time, place, and manner restrictions.
  • Strict scrutiny: very heavy burden.
  1. Restrictions on Semi-Public Forums
    1. Public property that is not a traditional public forum that the government holds open for public expression. Can close at any time.
      1. limited public forum: can restrict to certain types of speech, but not certain viewpoints (military base).
    2. Mosley: must be even-handed in restrictions; cannot discriminate by content! Must be content neutral
      1. Unless there is some compelling reason: one is perhaps more dangerous or more disruptive than others
  • Heightened scrutiny; a form of strict scrutiny.
  1. Restrictions on Non-Public Forums
    1. Any rational restrictions are allowed. The restriction justifies itself
    2. State may reserve the forum for its intended purposes as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s thoughts
  • Can restrict content but cannot restrict viewpoint. (School mailing system)
  1. Rational basis test. (Still requires a minimally plausible justification.)
  2. **Ask, what type of public forum are we talking about? If it isn’t an inherent public forum or at least a designated public forum, you will probably fail in an attempt to force government to open up that public property for expression!
  3. Policy
    1. This is good because it would be too complicated and cumbersome otherwise; efficient way to handle these cases
    2. This is bad because it oversimplifies the situation
  • This case lays out the framework to public forums (geographical approach to the 1A—depends on where the property is and how it is classified). Tiers of public forum is standard for how selective access cases will come out, workable framework, comes at a cost – little nuanced consideration. Benefits/costs of bright line rule vs. totality of the circumstances/case-by-case basis.
  1. Argument: This focus on location runs the risk of compartmentalizing 1A
  2. Connecting Greer and Perry
    1. Whether the speech is protected will hinge crucially on how the Court classifies the property
    2. If the property is classified as public forum, then speech will be protected
    3. Mosley: Once an area is open to expressive activity, the gov’t has to open that area to all types of expressive activity because it is a designated forum
    4. Greer and Perry: opposite logic: the fact that they’ve chosen to limit access allows this not to be a public forum
  3. Stern’s School Example: FSU law could decide not to allow any speakers in the student lounge as it is supposed to be an area of sanctity and peace under the first category of the public forum BUT once the school allows certain groups in to speak in the lounge, the school can’t discriminate at this point (Cat 2).

Offensive Language and the Problem of the Captive Audience[edit]

    1. In General
      1. When can gov’t punish someone for engaging in speech that doesn’t harm people but does offend them? To what extent can the gov’t punish speech that we don’t like? Suppress b/c of adverse effect on recipient. Added new category “fighting words” to traditional 2 level framework for speech – (1) lofty expression that’s protected and (2) speech deemed unworthy of protection because it makes no contribution to the marketplace of ideas (defamation, incitement, obscenity)
        1. This is different from incitement because here speaker is provoking an antagonistic/hostile audience (to fight) rather than inciting an audience that is sympathetic to the message (the speaker’s followers).
      2. “Fighting Words”
        1. In General
          1. Part of the category of speech considered unworthy of 1A protection; fighting words conjure up ill will and have little value
          2. If use fighting words, the object of the words will be forced to fight in response
          3. Implies that if someone is using violence, he is forcing someone to fight him
          4. But one of the central premises of the 1A is that the gov’t does not get to decide what has value
          5. Court equates fighting words w/ physical assault (like spitting in someone’s face)
          6. Back to the Brandeis rationale in Whitney: If someone uses fighting words, then there isn’t opportunity for intervening speech bc fighting words tend to trigger an immediate, uncontrollable impulse to indeed fight.
          7. Another idea is that they are ideologically neutral (like defamation, doesn’t matter what you’re saying, if doing it for liberal/conservative cause, etc.)
          8. We don’t automatically label words as fighting words—just b/c words get someone upset does not necessarily qualify them as fighting words
          9. Court has narrowed the scope of fighting words
          10. Potential Problem of Underinclusion with fighting words
            1. Will prohibit some words/conduct but not some other similar words/conduct
          11. Hypos:
            1. Saying: “Excuse me officer, I must register my resentment against this abuse of my constitutional speech and freedom and this conduct is repugnant” – will not get you prosecuted for fighting words.
            2. Saying: “Look you bottom feeding pond scum, you’re all ugly and morons and fascists and I’m sick of you thugs” – NOT protected, these are Fighting Words
  • Chaplinsky v. New Hampshire: Fighting words conjure up ill will and have little value. A Jehovah’s Witness was calling other religions “rackets” when an ugly crowd started to congregate. A cop asked him to stop, so the man called him a “Facist and Racketeer.” He was convicted under an ordinance prohibiting the utterance of words intended to harass, annoy, or deride another.
    1. Held: The gov’t can punish fighting words that tend to incite a reasonable person to violence à still good law but eroding.
      1. The court will look at the circumstances surrounding the speech to decide if fighting words
    2. Note: The Court has not sustained a conviction based on fighting words since Chaplinsky. Court has adopted a more nuanced approach; higher threshold now to be considered so bad as to not be protected.
    3. Rationale behind not protecting FW is that they are of little social value and contribute minimally to the market place of ideas – low value speech
    4. More persuasive reasons – fighting words are like a verbal assault, more like conduct then speech (like defamation against private figures and obscenity - Paris Adult Theater, can’t fix the property values). More speech antidote not effective, unrealistic b/c reaction is a violent impulse not dialogue. This speech is not readily aided by counter speech.
    5. Viewpoint neutral. Court has taken more nuanced view of unprotected speech than a 2-tier system, more sliding scale?
    6. Rule: when criticism of gov’t officials moves from critiquing the way they do their job to critiquing them personally, this is considered unprotected fighting words.
  1. Gooding v. Wilson: D made various aggressive remarks, all of which were prefaced with “you SOB.” For purposes of deciding the case, SCOTUS assumed that in this context, these were fighting words. BUT the court decided the case on grounds that the GA statute was overbroad. GA statute didn’t just forbid fighting words – it banned “opprobrious words” and “abusive language” – which encompasses speech protected by the 1A. NOTE: to bring an overbroad claim, you basically have to say that your speech isn’t protected but the statute itself could be applied to a great number of speakers whose own expression is protected. If your speech is protected, you can’t challenge the statute on its face – only get to invoke the 1A if it protects your speech.
    1. Texas v. Johnson (also seen later): invalidated Texas statute which prohibited people from desecrating an American flag in a way the person should know will offend others who are likely to observe. Reasoning: this expressive conduct was not fighting words because “no reasonable onlooker would have regarded the D’s generalized expression of dissatisfaction with the policies of the Fed Gov’t as a direct personal insult or invitation to throw fists.”
  2. Terminiello v. Chicago: T gives controversial speech, calling people “scum” that invokes anger. He’s convicted under ordinance of speech that “included expression that stirs the public to anger.” Court held that the speech was protected.
    1. Goes back to what the 1A is all about – protecting unpopular groups and unpopular viewpoints. The purpose of the 1A is to produce unrest and to invite dispute. “Speech may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger”
      1. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest
    2. Even where speech causes some unrest, there is nothing wrong with speech unless it creates a clear and present danger. Terminello uses harsh language, but that cannot lead to the conclusion that those are fighting words. His words were intended to inspire speech. Narrows Chaplinsky – not everything offensive is considered fighting words, must show clear and present danger.
      1. Court seems to be suggesting that there needs to be a clear and present danger for speech to be considered fighting words.
    3. Speech can’t be restricted just b/c the ideas expressed offend the audience.
      1. Court won’t tolerate a kind of “mob veto” where the majority can silence minority just because minority speech pisses them off.
    4. Feiner v. New York: (Can stop speech if excitement is such that will cause riot but have to try and stop rioters before suppressing speech.) Feiner gave an open speech urging black people to take up fighting against whites. A crowd gathered and got crazy. The police came and told Feiner not to speak anymore, then arrested him when he refused.
      1. You can in theory convict someone for public speech that the state reasonably believes might incite a riot. Here, speaker wasn’t convicted b/c of the content of his speech but b/c the reaction which he was causing. If there is a clear and present danger of a riot or disorder, the state can step in and limit/punish speech.
      2. Holds: upheld conviction and court accepts characterization as likely to incite a riot.
      3. Paradox: never been overruled; but majority opinion considerably less deference to than Black’s dissent. Much more emphasis has been placed on Black’s dissent
      4. Court has assumed Justice Black’s (Dissent) position:
        1. Black said that we ought to be protected unpopular speech
        2. When you have provocative speech that is causing a lot of excitement or an extreme situation, the first reaction of law enforcement officers should be to confront those threatening to commit violence; last resort should be suppressing/arresting the speaker. But can suppress, just follow order
        3. Police officers should operate on a strong assumption of allowing the speaker to continue.
        4. Have to at least warn the speaker
      5. Black dissent – must first try to restrain audience before restraining speaker.
    5. Words that Offend''''
      1. Extent to which gov’t does have sufficient interest in shutting off invasion of speech you find offensive will depend on where you are. Court draws dichotomy btw being out in public or being in home/or similar place of inclusion. Gov’t interest much stronger in home or similar enclave; gov’t’s interest diminishes significantly once you are out in public. These cases tend to involve commercial solicitations.
      2. Rowan v. Post Office Dep’t: Statute permits people to instruct the post office to cut off the flow of dirty material coming from a particular source; homeowner had the sole discretion to determine whether something was lewd or offensive and then could tell mailman he didn’t want this type of mail coming to his house – right to be let alone. A publisher challenged the statute
        1. Issue: To what extent can gov’t help you fend off certain kinds of unwanted solicitation?
        2. Holding: You have a right of free speech, but you do not have a right to push your message on someone who doesn’t want to hear it; “a mailer’s right to communicate must stop at the mailbox of an unreceptive addressee.” Example of gov’t bolstering right to be let alone. The Gov’t is not ruling that you have a 1A right to stop mailer from sending things to your home, but rather when the Gov’t says you have a right to enjoy your home, this Gov’t interest of allowing people to be let alone in their home greater than an individual’s right to direct speech to someone who does not want to receive it (gov’t not restricting expression to people who want to receive it).
        3. Power to fend off unwanted commercial solicitations
          1. Much like we have the ability to turn off the radio if we wish to no longer listen
          2. “A man’s home is his castle and he has the right not to hear certain speech here”
        4. Like Pruneyard – question isn’t if intrinsic right to prevent but does gov’t have the power to make legislation that enables you to do this. Does this violate 1A right to send mail? Court says no, stat is constitutional, state can create a right to be let alone
        5. Balancing of interests – gov’t/homeowner vs. companies wanting to solicit – gov’t has very strong interest
          1. Some of this material was “sexually arousing” so people didn’t want their kids getting it
          2. The right of every person to be let alone must be placed in the scales with the right of others to communicate
          3. Once you leave home this interest is greatly diminished
        6. Reasoning: Court gives more weight to a person’s right to be left alone when they are in their own home; the gov’t’s interest in supporting your desire to be let alone will be dictated by which sphere you are located in. People must not be captives in their own home!
        7. Rule: Notion of the right to be let alone, or to enjoy the freedom to be away from upsetting sights and sounds is going to hinge largely on where you are at the time! And remember that often the form and specific words chosen cannot be suppressed or changed because they themselves are the expression!!!
  • Cohen v. California: Jurisprudence that draws distinction between effectuating own desire to be alone in home and public sphere on other hand. Animating the idea that once you venture outside the home and into public sphere, you lose a lot of your interest in avoiding offensive sights and sounds and gov’t loses its interesting in helping you avoid those unwanted sights and sounds. This is crucial consideration in court’s holding in Cohen. Man walks into a courthouse with a jacket reading, “Fuck the Draft.” This violated a code which prohibits “maliciously and willfully disturbing the peace of a person with offensive conduct”
    1. CA argues that even if this is not obscenity:
      1. People have the right not to have that sight foisted upon them unwillingly (captive audience);
      2. This is more like conduct than speech, and
      3. This is profanity that’s not really conveying a message
    2. Held: the Court overturns the conviction
    3. Rationale: Rejects the captive audience problem – this is true overbreadth in that it sweeps far beyond what’s needed to protect them. Cohen is not inflicting this sight on passersby – can arguably avert their eyes. To profanity argument, Court says that it’s not its job to be the arbiter of tastes and values. In some ways to protect the message, we have to protect the form!
    4. If you take away its crudeness, this is really the most protected speech – comments on the political process; he’s criticizing the government!
      1. One of the more protected rights of the 1A
    5. There were no privacy interests being overridden since people could have just not looked – people were not in the privacy of their homes
    6. The words chosen by Cohen create a distinct emotional response
    7. Government can’t value one type of speech over the other in deciding what to suppress
      1. “One man’s vulgarity is another man’s lyric”
    8. No one could have actually interpreted this as a personal insult.
    9. Why is this not obscenity? Most people would view the word ‘fuck’ as obscene but legal obscenity requires some sexual context
      1. “Fuck the Draft” doesn’t appeal to the prurient interest LOL
    10. Rules
      1. Fighting words need face-to-face confrontation w/ very provocative words and individualized to that person. Once you get beyond that, the court is exceedingly reluctant to categorize words as fighting words just because the words are provocative.
      2. Gov’t can restrict form of message if it is not restricting content; can’t say to keep idea but say in different way without undermining a crucial aspect of that message. If changed the words (got rid of Fuck) then it wouldn’t have the same effect or communication or even the same message in all of its dimensions, particularly its emotional dimension. When you are forced to paraphrase even when conveying abstract idea, it’s not going to be same message if there’s a strong emotive component to your message. Cohen stands for the proposition that: “Can’t always distinguish between what is being said and the way it is being said.” So, you can’t change the choice of words without changing the message. Inextricably intertwined.
      3. “Pass the salt” sends a different message than “Pass the fucking the salt!”
      4. If we get rid of words, we lose our ability to express ourselves in very important contexts. Getting rid of “murder” would cause pro-life people to lose important expression of their views
    11. Tension between Cohen and Mosley
      1. In Mosley the court says no subject matter discrimination, regardless of whether it’s political or not.
      2. Here one of the rationales for allowing the speech is subject matter--it is political speech
      3. What if he wore the jacket only b/c he was cold.
        1. Theoretically, if public participation model is essential here, Cohen in that scenario doesn’t get protected.
        2. On other hand, Mosley: we’re not supposed to discriminate based on different viewpoints. So, Mosley would think even the second version where Cohen wears the jacket because he’s cold, should be protected as well à government can’t discriminate here
  • There is no comprehensive solution to this tension
  1. “Seven Dirty Words” on the air
    1. FCC v. Pacifica Foundation (Speech Invading the Home)–Carlin’s “7 dirty words”is broadcast over the radio in the middle of the day, and even though a warning comes on before the monologue, the complainant’s child hears it (they came in to the monologue while it was going, after the warning). FCC banned the monologue as “patently indecent”, and argument is that the FCC was engaging in viewpoint discrimination.
      1. Held: FCC could ban this speech. Commission’s decision rested on a nuisance rationale under which context is all-important. Court doesn’t disapprove of content of what is being said, but rather the form in which is it given in broadcast media.
      2. Rationale: This is essentially low value speech that is afforded less protection. There’s also more regulation when it comes to different kinds of media, such as the radio, which is uniquely accessible by kinds.
        1. Still good law but not clear if it will remain so with advances in communicative technology. Even if the Court overruled Pacifica still a case worth considering because raises number of 1A themes and tensions.
          1. First, dealing with expression that doesn’t qualify as obscenity because obscenity has specific Miller definition. However, this is near obscenity.
          2. Sometimes the precise message that the speaker has is going to be bound up with particularly chosen words so that the message is not as valuable.
  • Repetitive nature of bad words can make this seem closer to obscenity – just like movies are rated R if fuck is said more than 3 times.
  1. Counter: but it’s hard for me to get my message across unless I use those words
  2. Tension of fallabilism on one hand and idea that under 1A gov’t can’t dictate what people can say and that some messages are superior than others, and on the other hand the gov’t can make an absolute judgment about the propriety of certain words under certain circumstances (not all speech gets the same protection just like the major and minor leagues aren’t on the same level).
    1. A nuisance may just be the right thing in the wrong place – like a pig in parlor instead of the barnyard à because the pig is in the parlor, or because this comedy show is over the radio allowing it to pervade/penetrate private places, it will be more unacceptable, and therefore less protected.
    2. CONTEXT IS A BIG DEAL HERE
  3. Distinction btw content-based restrictions aimed at particular content - highly suspect - and on the other hand time, place, manner restrictions which are neutral so have much better chance of passing constitutional muster. Not always easy to draw stark black and white distinction btw the two. Instance where you can apply both labels to what the FCC was doing.
  4. Get in Pacifica a long-standing custom of Court more willing to allow regulation of electronic media than print media. But again, this distinction is starting to become blurred as technology advances. “Radio has a uniquely pervasive presence”
    1. With people constantly tuning in and out and missing warnings, it’s impossible to protect a listener from this type of language.
  5. Notion of captive audience: Gov’t has strong interest in preventing people from becoming captive audiences of speech they don’t want to hear. But what constitutes a captive audience? How long do they need to be exposed to consider them for purposes of gov’t interest of shielding them from these noxious sights and sounds? Court here says you only need to be exposed for a second you can become a kind of captive audience – even if you can change the channel quickly. So, people who can avert their eyes aren’t captive audiences, but I guess it’s harder to avert your ears. Radio will argue that it gave a warning, but you never know when someone is going to tune in! So, this is the difference between Cohen and Pacifica (can’t avert ears as easily!)
    1. So, then it would depend on how far you are away from the radio. Did it leave the car; maybe you have to be in the car or home for gov’t to protect you? Note that the government can definitely regulate volume as time/place/manner
    2. Two recent cases could apply here but point in different directions: Cohen and Rowen. Rowen- gov’t has strong interest in protecting homeowner and testimony of adverse impact of children to exposure of these ads. Protection of children is in large part what gave gov’t power in Rowen, and that is very applicable here. Legal issue in Cohen comes down to if this will be governed by Rowen (in the home with children) or if not, will the words’ import on expression trump?
  6. Dissent: according to Cohen, you cannot draw a rigid line between form and content, b/c changing the form will alter the message itself. To transfer the monologue into more polite language, it is no longer the same message
    1. Harlanpoints to the emotive component that a great deal of speech contains, and in this, you can include humor as a type of emotion
    2. Context – fact that monologue was broadcast on radio in the middle of the afternoon was very significant
    3. Reason: radio is special b/c you don’t know what’s coming up – before you turn it off you hear the offensive content – like running away after having already received the first punch in the face – might be warnings, but too quick to change the channel
    4. Counter: Distinction b/t radio and other media is not that great
  7. Distinguishing Cohen: there are two enclaves in our lives: the home, where state has substantial interest in bolstering your private sanctuary (Rowan), and the public, where the gov’t has less of an interest in strengthening the privacy interests (Cohen). Court says Rowan governs here, b/c radio penetrates the home
    1. Rowan is where homeowner wanted the post office to stop distributor from sending offensive mail
    2. Differences between Rowan & Pacifica – In Pacifica we have people who do want to hear Carlin’s monologue
      1. Court’s response is it would be unfortunate that there would be people that would not be able to hear it in the middle of the day, but that is just a consequence of the gov’t protecting citizens from the intrusion of the radio
      2. Counter – how is radio an intrusion when the listener chooses to turn it on and accept the risk? Counter: can’t accept risk if tuning in to what you think is innocent and you miss the warning.
    3. Children – ban on indecency is largely justified b/c of the fragile nature and lesser capacity of children
      1. Problem: by protecting children, we bar consenting adults from hearing this material

Symbolic Speech[edit]

    1. Generally
      1. This is conduct that is intended to convey a message or communication without using words. To what extent does the 1A protect conduct that is intended to communicate a message?
        1. Did someone mean to communicate a message through his or her conduct? (subjective)
        2. Would a reasonable person believe that this person was trying to communicate or express a message? (Objective)
      2. The question is whether the government is prohibiting the conduct because they are seeking to suppress the particular message from that conduct, or if it was prohibiting the conduct because of a certain type of harm that may have arisen from the conduct other than the message/expression stemming from it?
    2. Draft Card Burning
      1. U.S. v. O’Brien: O’Brien burned his draft card in protest of the war and was convicted under a statute that said it is illegal to mutilate a draft card. The 1A is relevant because he is engaging in conduct. No one would doubt that in his gesture, O’Brien is expressing his opposition to the Vietnam War in general.
        1. Held: The court upheld the statute! When speech and non-speech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element could justify incidental limitations on 1A freedoms
        2. TEST: You’re never going to see the outcome of one of these cases on one of the first two prongs. First two prongs are almost never an issue! The decisions really turn on prong #3, where the gov’t fails. (One and two kind of collapse into each other.)
          1. Is the restriction within the constitutional power of the gov’t?
          2. Does it further an important or substantial gov’t interest?
          3. Is the government interest unrelated to the suppression of free expression?
          4. Is the incidental restriction on the alleged 1A freedoms no greater than is essential to the furtherance of that interest?
            1. This is not “as least restrictive analysis” as we see in Wooley; not as strict
          5. So, going to prong #3, as long as the government is not trying to block the message of that conduct, then government will not fail this prong.
            1. Here, there was a legitimate interest: orderly administration of the draft
          6. Unrelated to suppression of speech? Even though O’Brien argued that the gov’t did wanted to suppress this kind of speech, the Court will not strike down a valid law by looking into the subjective legislative motive of legislators. If the statute is valid on its face, it is not going to suffice that there is evidence that a significant number of Congressmen voted for it for bad reasons, or reasons to suppress speech.
            1. But there are 2 exceptions to this general principle.
              1. 1) When we get to the Establishment Clause, we will see that under the Lemon Test, a law can be struck down on the basis of its being prompted by non-secular motives. If the motive behind a particular law is to promote a certain provision, then it will be struck down for that reason.
              2. 2) There is a category of cases where the Court in theory (and sometimes in practice) will strike down on a law on the grounds that there was a discriminatory (racially or gender) motive.
  • 3) Quasi exception: This isn’t really like the others, but the Court said they would strike down a particular action on the grounds that there is a bad motive of the administrator. I.e. if someone fires someone for the reason that the employee spoke in a way the employer didn’t like, that can work as grounds for invalidating the dismissal. And the court can investigate motive for firing.
  1. Let’s suppose O’Brien had burned a photocopy of his draft card but no one else in the audience knew about it. This would have shown the same exact message, but the government would not have prosecuted him because this was not his draft card.
    1. So, if all the state is trying to do is regulate the noncommunicative impact of the conduct, then the punishment of Johnson would pass prong 3.
  • Going back to the test and more specifically prong #4… In the O’Brien test, the Court says that even if the action passes the 3rd prong of the test, it could still in theory violate the 4th part of this test which says that the incidental restriction of speech be no greater than essential. This is not a strict test, though.
    1. In this area of symbolic speech, the way which the Court has applied the 4th prong of this test is in a much more accommodating fashion. The court says that the government is entitled to have a law prohibiting the destruction of draft cards because that’s the most effective way of promoting an interest.
  1. STERN: Of all the really controversial cases that have divided the court, this is one of the easiest. The Court (majority) got it right. He usually does not feel this way. Usually he feels that both majority and minority have valid points.
  2. Flag Burning
    1. You cannot be prosecuted even for unlawful behavior under a statute punishing viewpoint/expression instead of the harm of the conduct itself
    2. Texas v. Johnson: Court struck down statute under which Johnson was convicted for “desecrating the flag” by burning it. Johnson invoked the 1A of the Constitution that he apparently hates so much to defend his acts of hatred against America. (ass backwards)
      1. Held: The law is unconstitutional under the 1A à the government is going after expression here. Even though burning a flag is not intrinsically constitutionally protected, it’s a form of expression that must be protected!
        1. Note: in Texas “desecration” was a term of art, meaning to deface, damage, or otherwise physically mistreat in a way that the actor knows will disturb one or more persons.
      2. Analysis of the statute:
        1. Threshold question – does 1A come in at all? Subjective question – did Johnson intend to communicate a message by burning the flag? Objective question – would average reasonable observer viewing Johnson engaging in this conduct understand him to intend to convey a message?
          1. This is a pretty easy call. Clear that Johnson subjectively seeking to express some kind of message by burning the flag. Average reasonable observer would assume in context there was a meaning behind burning the flag. Not like he was cold and needed warmth!
        2. Is defining desecration in the manner TX had done so make statute invalid? Ct doesn’t answer the question just considers is the statute as applied to Johnson in this case invalid. Ct also doesn’t answer if TX interest in the peace is implicated in this record. Ct isn’t going to assume just bc someone does something offensive that it will invoke a riot.
        3. What is Texas Trying to Do? Is there an interest served in protecting desecration of flags that has nothing to do with speech and expressive component of burning a flag? Does it pass third prong of the O’Brientest?
          1. Texas flunked third prong of the O’Brien test. There was not another rational reason for the statute besides preventing the conduct of destroying or desecrating the flag à and if someone wanted to destroy the flag for expression, this is directly aimed at preventing that expression
        4. The Court says we are outside of O’Brien: meaning if the government flunks part three, then we don’t move on to part four, but instead we proceed to a more stringent test which is of course, content-based restrictions, which is a very difficult standard for the government to meet (compelling state interest test, but not full-blown strict scrutiny)!
          1. The decision the Court made by overturning the conviction doesn’t say however that Jonson has const’l right to burn a flag. Johnson can’t be punished under this particular statute based on this theory.
            1. Similarly, gov’t saying, “can’t destroy draft card to protest” would be unconstitutional. Singling out particular viewpoint for punishment is not allowed or must pass strict scrutiny in which case ct would almost certainly strike down the punishment.
          2. State’s interest is to prevent breach of peace
            1. Court sidesteps this – conduct did not pose serious danger; not enough to incite
          3. State’s interest in preserving the flag as a symbol of national unity
            1. This is related to the expression of Johnson’s message – exactly – this symbol of America allows him to express himself in burning
            2. TX isn’t banning all flag burning, just flag burning done in protest – a proper way to dispose of an old flag is by burning
          4. Note: Johnson’s conduct was NOT intrinsically protected by the Constitution – Johnson could have been successfully prosecuted under other statutes (receiving stolen property, arson, etc.) – just being prosecuted under this particular statute violates his rights.
          5. Dissent (Rehnquist): denial that this is content-based restriction
            1. “Johnson not being punished for the content of his message – TX is just saying that he can’t express that view in this particular manner”; being punished for way he did it; not saying can’t criticize this country.
            2. Problems with this:
              1. Cohen– form is a crucial emotive part of message
              2. Irony: raises question of what the flag actually stands for:
                1. Values, principles and rights embodied in the Cx, including FoS (and freedom of dissent)
              3. Seems the more Rehnquist discusses how important a symbol the flag is, the more this seemed to bolster Johnson’s chosen method of expression
            3. SO while this is upsetting, judges agreed, but they have to protect FOS

Hate Speech[edit]

    1. R.A.V. v. St. Paul: (can’t pick what is allowed based on content, even when deciding between fighting words!)
      1. Facts: R.A.V. burns cross in the front yard of an African American family. He’s prosecuted under a St. Paul ordinance that bans display of certain symbols that arouse anger, alarm, or cause resentment in others on basis of race, creed, color, religion or gender. Equating these words/conduct with fighting words.
      2. Like TX v. Johnson in the sense that everyone on court agrees that this is behavior that the state has a right to prevent, prohibit, and punish. NO one is arguing that there is inherent constitutional right to burn cross.
  • Majority proceeds under two assumptions: 1) the St. Paul ordinance bans only fighting words that fit in this category; 2) but these words aren’t really fighting words.
  1. Held: Invalid ordinance. 9-0. But only 5 agreed on the particular theory of its unconstitutionality.
  2. RULE: Content based distinctions within unprotected speech will have to meet strict scrutiny subject to two exceptions
    1. If it directly advances the reason why the category of speech is unprotected
      1. For example, an obscenity law could prohibit the most sexually explicit material without having to ban everything that is obscene
    2. Law will not be deemed content-based (subject matter) if it is directed at remedying a secondary effect of speech and is justified without respect to content.
      1. This is directed at conduct rather than speech. Thus, for example, sexually derogatory fighting words may produce a violation of Title VII’s general prohibition against sexual discrimination in employment
    3. Power of a state supreme court to take a statute or an ordinance that is facially problematic and validate it by twisting its wording. Threats are an unprotected form of speech.
  • Rationale: Can’t pick and choose—engaging in content-based discrimination. It’s basically favoring a message of tolerance and equality over a message of hatred and bigotry. There’s also an underinclusiveness problem—it doesn’t ban all fighting words, only some.
    1. Even when you’re talking about an unprotected category of speech, it’s still not the case that in that category the government can pick and choose which among they are going to ban.
    2. One of the dissenting opinion says that they should be able to distinguish between the most odious of fighting words. But Scalia says it is different to target subcategories of fighting words based on the government’s disapproval of that category.
    3. They would be able to, though, ban only the most offensive words but they can’t ban words that are critical of the government.
    4. So here the problem was that, for example, those who wish to use fighting words for race-based issues can’t but those who want to use it to get down on someone for political affiliation can.
    5. How obnoxious an idea might seem, the 1st amendment dictates that we must treat it with value. Government cannot interfere with the marketplace of ideas.
  • White, concurring: Thinks the majority is wrong for its proposition that if you ban some you have to ban all. The logical position is that the greater power includes the lesser—if the state has the power to ban all fighting words, it also has the power to ban certain kinds of egregious fighting words. On its face, it doesn’t single out any viewpoint for punishment.
    1. As an extension of that, it isn’t targeting a certain category of fighting words of moral disapproval but b/c of fighting words that fall into this category, it causes a different kind of harm than the other kinds of fighting words do.
    2. May be this stings more: more verbal assault by language aimed at you b/c of race, color, creed, etc.
    3. As a formal matter and practical, this can’t be reasonably understood as an ordinance aimed at particular beliefs, it is attacking or redressing a particular type of harm – when someone is threatened based on a protecting class
  1. Wisconsin v. Mitchell
    1. FACTS: In this case, a black person urged a group of blacks to assault a young white boy. This was the case in which you’d get 5 years imprisonment for an assault but you’re going to get more years if you had selected the victim based on race.
    2. HOLDING: The Court overturned the holding of the Wisconsin Supreme Court that the statute violated the first amendment (statute increased prison sentence of assault when the victim was chosen based on his race).
  • RATIONALE: The Court said this was different from RAV because that was an ordinance that banned a particular expression because of its content. On the other hand, under the Mitchell statute, when the State says they’re going to punish you for assaulting someone, then the State is not punishing you because you engaged in certain expression but is instead punishing you because of your conduct.
  1. Under the Mitchell statute, you won’t be punished just for saying you hate black people, for example. But if you not only harbor that belief but act upon it by hitting someone because they are black, etc., that is a different matter. A heightened sort of harm.
  2. It raises a number of questions, though. Let’s say someone punches an Arab and gets 5 years for the assault. Now let’s take the same basic scenario and someone punches the person in the nose and says, “You damn Arab you!” and now he gets 7 years because of the hate crime. So, can it not be said that we are punishing speech here? The basic response is that under those circumstances, if it turns out that the defendant in that case is punished it’s not because he said it but rather what that statement reveals about the motive of that assault. So really, it’s an evidentiary item about the motivation.
  3. We make distinctions about identical conduct based on the motivation for that conduct all the time. EX: employment law. Let’s say you have an employer and they apply for a position. The person then decides not to hire that person. In that circumstances, whether that is a permissible or impermissible rejection will hinge on the motivation of the employer.
  • The Court said that motive was especially pertinent here because motive (when you can find it) helps assess the nature and the harm produced by the conduct.
  • Something can be a crime depending on the motive. E.g. firing a person because of their age. OR a shooting will be worse/scarier/eviler if motivated by Islamic Terror versus a white kid with a mental disorder

The Religion Clauses[edit]

    1. Background: we are a secular country but also a religious country, particularly more so than the countries we are compared to.
      1. Relationship between the Establishment Clauseand Free Exercise Clause:
        1. In one sense they work in tandem. Both aim to promote and protect the autonomy of religious practice from gov’t.
        2. Different methods
          1. Establishment
            1. Bar excessive intrusion of religion in gov’t.
            2. Gov’t cannot favor one sect over another
  • Requires the separation of church and state
  1. Free exercise
    1. Ensures religious autonomy more directly – forbids gov’t intrusion into private religious practice
  2. Instances of potential tension between what the free exercise clause requires on the one hand and what the establishment clause prohibits on the other
    1. If we tax church property, are we burdening churches under the free exercise clause OR are we violating the establishment clause by allowing churches this benefit?
  3. The Establishment Clause
    1. Lemon Test (Still valid though losing support)
      1. The legislation must have a primary secular purpose
        1. It is part of Court’s jurisprudence to take motive into account when looking at EC challenges.
      2. The legislation must have a primary secular effect
      3. The legislation cannot cause excessive government entanglement with religion
    2. 'School prayer crèches and other arguable symbols of endorsement of religion'
      1. Abington School Dist. v. Schempp
        1. Facts: Gov’t sponsorship of Bible readings in public schools; each day began w/Bible readings. NY: these are bible readings, but we aren’t really using them to advance religious purposes, but rather to promote something else. NY tried to argue that they are just teaching about good moral values that people can live by and kids could opt out of the readings if they wanted. Schempp didn’t excuse his kids because he felt that this would adversely affect their relationship with the teacher and other kids.
        2. Held: This violated the Establishment Clause – this is the gov’t encouraging a religion
        3. Rationale: There are other ways to get at these non-secular purposes. The Bible is inherently a religious document. While you can get secular effects from Bible reading it doesn’t nullify the inherent religious impact. Doesn’t buy argument that it’s nonsectarian Bible—a Bible still excludes other religions.
          1. ESTABLISHMENT CLAUSE:
            1. The Establishment generally bars the inclusion of religion in the government.
          2. FREE EXERCISE CLAUSE:
            1. “The right of every person to freely choose his own course with reference thereto, free of any compulsion from the state
          3. TEST: This case tells us that if you have a government action that exerts largely a religious effect, that is going to presumptively violate the Establishment Clause. (That is one of the prongs of the Lemon test)
        4. Types of Justices
          1. Separationist
            1. Lower threshold to find a violation of EC; more easily find violation
            2. Justice Stevens
          2. Accomodationists
            1. These are Justices that feel less threatened by government involved with religion. It’s going to take higher threshold of government involvement for them to find that the Establishment Clause has been violated.
            2. They’re not going to always find that the government is impermissibly acting on religion.
  • Justice Rehnquist
  1. Qualifications
    1. Don’t draw too stark of a dichotomy--there is some overlap
    2. There are some justices that don’t fall neatly into either category--SDOC & Kennedy
  2. Hypo – Let’s say the state creates a statute that says that in every public school classroom there will be two symbols. One is a cross and one is a Jewish star.
    1. One of the parts of the Lemon test is that the legislature can’t have a primary effect in religion but must also have a secular purpose.
    2. So, going back to the hypo, if it had been the case that the sponsors of the legislation to have the symbols to sneak religion in the classroom, that would violate the Establishment Clause.
  3. Stone v. Graham (10 commandments had “no secular legislative purpose”)
    1. Facts: Gov’t required display of 10 Commandments in classrooms. State argued that the displaying of the commandments was just to advance a historical value and provide moral rules to live by.
    2. Held: Violated Establishment Clause.
    3. Rationale: Even though the state gave a legitimate reason for displaying the Ten Commandments in the classrooms, the Court says we essentially don’t believe you—you did this to advance religion. In this setting, the required display of the commandments is inevitably religious—no way to erase its religious aura and effect.
    4. There does seem to be distinction between this setting (involving impressionable kids) and others—KY, TX cases where posting of 10 Commandments was fine because of the length of time the monuments had been there – had truly become a ?. So, there’s no categorical banning of state displays on government property.
      1. The context in which a particular religious symbol or artifact appears is going to determine what meaning people ascribe to the particular symbol or artifact
    5. In further context, at one level it’s extraordinary that court is willing to infer an impermissible motive from statute where that motive doesn’t appear on face or in legislative history and then strike down law on the basis of motive, it is important to understand that this case really does represent the exception rather than the rule, because the court inferred motive.
    6. Stern doesn’t think this is going to be a dominant approach – invalidation on religious motive is going to be the exception rather than the rule
  4. McCreary County v. ACLU: This was where they had the 10 commandments at a county courthouse. They placed several other symbols around the 10 commandments, though. The court viewed this as trying to camouflage. The Court said that this was an attempt to advance religion.
  5. Austin Texas Van Orden v. Perry: There the Court allowed the inclusion of the 10 Commandments on statehouse grounds. The key point was that prior to this litigation, this display had been at the Texas statehouse grounds for 40 years and no one had argued about it. Having sat there for so long, it seemed that the 10 commandments in that area were not perceived in a manner of endorsing religion; more historical artifact. This holding will be more of the wave of the future as compared to Stone v. Graham. Stern thinks moving forward, it’s more likely that the court is going to find these cases permissible.
  6. What about an argument that Sunday closing laws violate the Establishment clause?
    1. The argument is that this allows people the opportunity to go to Church (free exercise).
    2. BUT if you assume that having a day of rest is a secular goal, then maybe Sunday is just as good to anyone as it is to Christians.
    3. What the Court said was that it was originally created for religious purposes but now the reason we keep it on the books today is because of a secular purpose. We all enjoy a day off or day of rest. So, this is allowable.
    4. Thanksgiving, for example, originally had a religious backing but we no longer think of it as a holiday that imposes religion.
  7. Wallace v. Jaffree
    1. Facts: AL law called for a moment of silence at the beginning of each school day “for mediation or voluntary prayer.” The statute amended an earlier one authorizing a moment of silence “for mediation.” The justification was that it allows for a minute of reflection, not specifically for religious reasons or to reintroduce prayer into schools (the allegation made by those challenging the statute). However, the sponsor of the statute admitted that’s why the law was passed—he desired school prayer.
    2. Held: Not a valid law here.
    3. Rationale: Looking at the votes, the Court doesn’t regard moment of silence laws as inherently violating the Establishment Clause, but here AL screwed up—b/c of this law’s particular history, it signals that the state sought to advance religion.
      1. If you can bring a sanitized history of why this is needed, then it could have passed muster. Just don’t be heavy handed about it being for religious purposes.
        1. Simple moments of silence are fine – not inherently religious and a person participating need not compromise his beliefs
        2. Just don’t say “I’m doing this to sponsor prayer” – maybe instead: “I’m doing this to promote a moment at the start of the day where students can reflect.”
      2. In this instance, they had already had a period of meditation and no one said that children couldn’t silently pray during that time. “The statute served no secular purpose not already served by the original ‘mediation’ statute.”
    4. Larson v. Valente: Minnesota statute-imposed reporting requirement on religious organizations that solicit more than 50% of their funds from nonmembers. Statute violated the Establishment Clause that one religious denomination cannot be favored over another. 50% rule was not closely fit enough to serve the compelling interest of protecting citizens from these people. This politicized religion and brought religious gerrymandering into question.
    5. Edwards v. Aguillar (Scalia)
      1. HOLDING: In this case, the Court struck down a Louisiana statute that mandated teaching creation science. Couldn’t just teach creationism without teaching evolution.
      2. REASONING: The Court was satisfied that the actual motive of the legislature was to advance / sponsor religion. Here the Louisiana Legislature tried to bring some of the legislative history to show that they weren’t motivated by religion, but the Court said this sounded like Stone v. Graham and they couldn’t think of any plausible goal/motive of this legislation other than advancing religion (or at least a theory that is inherently a function of a certain religion).
        1. The sponsor of the legislation here did not make a religious motive known as in Jaffree, so LA was much more careful to leave clean legislative history
      3. Textualist Approach: Scalia said it was impossible to get the legislative purpose from the statute. It is too difficult for the Court to determine the motive and should not be grounds for invalidating a law.
    6. Epperson v. Arkansas: Arkansas enacted a statute prohibiting the teaching of evolution in public schools and universities. Statute invalid because it is the product of fundamentalist religious fervor. The law had too much of a religious purpose. They had precluded teaching it because of religious beliefs. That’s impermissible.
    7. Harris v. Mcrae: Rejected establishment clause challenge on statute restricting public financing of abortions à wtf people don’t want to pay for your abortion! Ps said that this codified the thinking of the Catholic Church. But the fact that this is in line with the Catholic Church’s beliefs does not by itself violate the EC. Many other criminal statutes have origins from religion.
    8. McGowan v. Maryland: Establishment Clause challenge to Sunday closing laws. Someone claimed this was motivated by religion.
      1. Held: Valid law.
      2. Rationale: Court doesn’t deny that the statute originally had a religious purpose. The justification for the law changed though, and now it has a more secular justification—it ensures a uniform day of rest. Sunday is the most convenient day for refraining from activity and is beneficial for society to have a day of rest
      3. This case is more illustrative of the general trend—in most instances, the Court is reluctant to ascribe religious motive to a particular gov’t action that has some religious indicia if there is some plausible secular purpose that state can invoke to justify that law.
      4. Representative of bulk of laws challenged in this category: law has defensible secular explanation, even if just barely defensible secular explanation, is going to be upheld even though it happens to coincide with practices of a religion.
    9. Lynch v. Donnelly: City had a city-sponsored Christmas display in town that included a nativity scene. The inclusion of the crèche is challenged as violating the Establishment Clause. This is one of the earliest references to the Court not giving so much credence to the Lemon test.
      1. Held: Not a violation of Establishment Clause
      2. Rationale: Seems to be trying to get away from the Lemon test, and applies mushier version—let’s look at this challenged gov’t action and ask ourselves, ****does it fundamentally emit a religious aura or have a basic religious character? Instead of going through Lemon.
      3. To the extent that Burger refers to the prongs of the Lemon test, he assumes that the crèche does have a certain religious aspect to it, and he’s even willing to concede that the display may have been animated by some extent to religious purposes, but he wants to make a larger point here that that concession does not end the case. Just because there is some religious intent / purpose doesn’t mean the Court will strike it down.
        1. Even though there’s probably some religious purpose and effect, it would be inconsistent to invalidate any gov’t action that has any sort of religious purpose or indicia b/c there’s so many.
        2. Looking at the nativity in the scheme of the display—it was only one part of the entire display. A lot was secular, like Santa, and the nativity scene assumes less religious character when paired with those.
          1. Generally, it’s still a major event in history and Christmas itself transcends the religious ideology: it’s about peace, goodwill, family, etc.
          2. You can’t focus exclusively on the nativity scene without looking at the larger context.
          3. About celebrating materialism as well—placed near stores, etc.
  • The average observer is not going to be excited with religious fervor or feel like the city is espousing a religious view. (NS: But what about non-Christians? May feel like an outsider. Purpose of the EC: No one should feel like outsider.)
  1. Analogizes to displaying paintings—aesthetic experience rather than religious one.
  2. **SDOC is the swing vote, and aligns w/majority and finds that this particular display by city on balance doesn’t violate the EC. Says to look at:
    1. (Gives her version of the Lemon test) Whether the gov’t by undertaking the action is sending a message of support for a particular religion to a reasonable person.
      1. What is the message/purpose that is intended by the government? (=secular purpose)
      2. What is the message that is actually created by the government? (=secular effect)
        1. This is the most important question, because a religious purpose in and of itself is not enough to invalidate.
        2. A religious purpose can infuse action w/impermissible religious effect, even though effect is not inherently religious. (E.g., Wallace v. Jaffree)
      3. Not that different from dissenters: asking same question essentially but arriving at different answer. Here the purpose was a celebration of a public holiday through traditional symbols. As such, this would not create the effect of endorsing a religion. Just a show of our culture. She doesn’t think people are going to be so sensitive and up in arms and think that this display sends a strong message of religion.
      4. Leaves open a question--since this is a reasonable person standard (how would a reasonable person perceive this action?), who is the reasonable person?
        1. The court has indicated that this is a person who has some familiarity of the display/action and the history/culture/context of the display
      5. The analogy that Burger draws to this case is the display of religious paintings at the national gallery. They say we should view the crèche in the same right. The criticism of this is that this is not the same thing. When you go to the national gallery, you see a painting of a particular content, you think of the overall theme as being aesthetic. Most people’s motivation for going to the gallery are to see paintings, not to think that the government is endorsing religion.
        1. He’s basically saying that we don’t need to be so worried about the intermingling between religion and government unless it is a true threat to the Establishment Clause.
        2. The average observant Christian wouldn’t look at the crèche and be filled with religious fervent – they aren’t saying “This makes me want to pray”. Brennan says we should look from the perspective of people who are not of that religion. Brennan says it will make them feel separated from the community and particularly lower tier status.
      6. Basically, SDOC and dissenters are looking at the same analysis but arriving at a different answer. Majority presumes that the average reasonable observer would be aware that the city wasn’t espousing a religious view but trying to boost Christmas sales downtown.
      7. Justice Brennan in his dissent said that there was a more mundane motive and it was not by accident that this display was in downtown. A lot of what was going on here was that the city was trying to promote people to the downtown area to promote downtown sales, but:
        1. Sometimes we see the government downplaying religion or trivializing religion as a way to make it seem more like they aren’t encouraging religion, but rather, materialism – and they’re just trying to get people to shop.
      8. Burger (accomodationist) v. Brennan (Separationist)
    2. Lee v. Weisman: (Coercion Principle): Middle school grad ceremony includes tradition of having invocation. At W’s grad, school invited rabbi. Gives boilerplate prayer, not particular to any theology. W and father contest presence of prayer at ceremony.
      1. Held:
        1. Very specific holding: Public school-sponsored prayer at least below level of universities violates EC.
        2. Broader holding: coercion principle: At a minimum, coercion for EC means that gov’t may not coerce anyone into participating involuntarily in a prayer or other religious exercise.
          1. Couldn’t get Kennedy to sign off on any analysis under Lemon.
          2. The coercion test basically says that someone must submit to religious action, otherwise be submitted to penalty (that is the classic case).
        3. Factual questions
          1. Did anyone tell the student here to pray or else? No
          2. Did she even have to bow her head? No
  • Did she even have to go to the graduation? No
  1. So how is she in any way coerced?
    1. She’s being coerced to participate in his religious activity. She’s not literally praying but she’s participating in that she’s seeing herself as participating. (i.e. if a bunch of your friends bring you to a political rally for a participant you don’t like and then it shows up on YouTube, people will assume that you support that candidate.)
    2. She could jump up and down and say that she’s not praying but it’s really not a fair choice.
  • The majority felt that the graduation ceremony was a big life event and she was punished by not going if she so chooses. So technically she’s not required to be there but in a practical sense she is required/coerced to be there.
  1. So, when the court refers to coercion, the court is explicitly saying that we won’t just look to see what a person is formally required to do, but the court will consider what kind of practical pressure the government action will put on the people to act a certain way.
  2. Rationale: W forced to participate. Even if she’s allowed to stand there and tune out, it’s constructive participation—perceived by others to be participant. Not an option for her to not come—it’s right of passage. Court says to look at coercion in practical way: “To say teen has real choice not to attend grad is formalistic in the extreme.”
  3. Scalia, dissent:
    1. At least traditionally, understand coercion to be someone being forced to participate in religious ceremony or otherwise supporting religion under threat of penalty.
    2. This is stupid psychology. Don’t know what’s going on in teen mind.
  4. Final thoughts generally
    1. So, Stern says that the Lemon test is easier to apply than the coercion test. The Justice O’Connor version of the Lemon test in particular just asked if a governmental action conveys a sense of government sponsorship or endorsement of religion. So, in the case of a public-school graduation, the question is whether certain people are being marginalized because of their religious beliefs. So, if you took that result, the way you could reach it is to say that graduation prayer has the effect of advancing religion because it tells people (like Weisman) that they are placed outside the group and she is diminished because she doesn’t share the spiritual bond that the others do.
    2. The coercion test, though, fails to explain some of the previous holdings. It would seem that the Framers of the Establishment Clause were concerned with a lot more than just coercion. They were concerned more broadly that religious minorities are not excluded from the political community. Remember the Grant case where the Kentucky statute required the posting of the 10 commandments in public school. This can’t really be viewed as an instance of coercion; the kids weren’t being coerced to DO anything. It is hard to think of that as amounting to coercion
    3. O’Connor’s Lemon Test make more sense than the coercion paradigm.
  • ' 'Financial Aid to Sectarian Institutions
    1. Zehlman v. Simmons-Harris: Court upheld program where parents got tuition aid even if they opted to send their child to a sectarian school. Many parents also used the funding to send their kids to other non-sectarian schools are well.
      1. Rule: B/c parents are receiving the aid directly, and the sectarian schools are only benefiting as a by-product of true private choice, this is not a violation of the Establishment Clause.
        1. aid must be for secular purpose;
        2. aid can’t be in form of a direct subsidy to the sectarian institutions, money has to get there by other means.
      2. Theory: Court is satisfied that the state is making a good-faith effort to advance education, not the religious missions of sectarian schools – just b/c some of the money goes to sectarian schools, that does not invalidate the program
        1. Hinges on route to schools – whether program is facially neutral.
        2. 2 criteria if met will pass Establishment Clause muster:
          1. Program must be secular one/neutral
          2. It’s not enough that it is foreseeable that most of the money will end up going to religious schools- have to show that the reason the system was enacted was to consciously benefit the sectarian schools.
          3. Ct also focuses on fact that you need to consider particular voucher program in larger context of broad attempt that Ohio is making to improve Cleveland schools – many efforts being made, like creation of magnet schools.
        3. Lemon Test:
          1. Financial aid needs to be secular purpose- education is
            1. Gov’t typically easily meets this burden.
          2. Financial aid must have primary a secular effect- has to have a primary effect that neither advances nor inhibits religion. Concerned with whether it advances religion. Here, advances education.
  • Aid can’t foster excessive gov’t entanglement with religion.
    1. Idea is that if the state grants money to parochial schools on condition the money only be used for secular purpose; would fail if the conditions entail excessive gov’t surveillance within the sectarian school.
    2. This is usually where must state actions will be struck down
    3. Here, funds go directly to parents who make choices and then parochial schools benefited by their choice.
    4. Ct is more permissive with respect to aid supporting colleges and universities that have sectarian affiliation than elementary and secondary schools. Rationale: students 18+ have already formed independent perspectives by time they’ve arrived; less impressionable; also, most universities that have sectarian affiliation have it secondarily, but principally about education. Therefore, less surveillance needed for higher education schools.
    5. Elementary and secondary sectarian schools: court has been more flexible towards gov’t funding that ends up supporting them than what Lemon test suggests; not that strict. In general, if aid is structured in such a form that the aid is part of a general program of financial assistance that is channeled to helping individuals fund education, rather than going directly to sectarian institutions, then there is good chance the court will approve the funding program.
  1. This is similar to Lynch v. Donnelly, where court said have to focus on the rest of the display not just the crèche; keep in mind broader context of the Christmas season and non-theological themes. Here, court is taking this wide-angle perspective in evaluating whether Ohio has engaged in an Establishment Clause violation here.
  2. Souter’s dissent: Decision eviscerates the wall of separation btw church and state. He sees this as on-going erosion, and that this law is really advancing a religious agenda.
  3. Majority/accommodationist response: Wall of separation btw church and state is made up; doesn’t appear in Constitution; shouldn’t be paranoid about some gov’t involvement with religion when it’s to promote secular goals like education.
  4. Freedom of Religion (Free Exercise Clause)
    1. The Free Exercise Clause hasn’t been as active as the Establishment Clause has been; this isn’t random; we will see why in Smith.
      1. Establishment Clause: concerned whether particular gov’t action advances religion
      2. Free Exercise Clause: whether particular gov’t reaction inhibits free exercise of religion.
    2. Difference between regulation of belief and conduct
      1. Gov’t cannot regulate your belief, but it can regulate your conduct
      2. The basic distinction between belief and conduct gets smudged
        1. The gov’t may not require or prohibit certain conduct when that conduct clashes with engaging in the conduct for religious reasons
        2. Sometimes, even when gov’t can’t regulate belief, a particular belief may possibly be disqualifying (ex: someone applies to be a night watchman at a kennel, and adheres to a religion that promotes sacrifice of dogs, can probably be prohibited from getting the job)
        3. Can regulate conduct that clashes w/ the law – RAV struck down law against certain fighting words, but when move to action can have hate crime law like in Mitchell: this is difference btw expression or belief on one hand and conduct on the other.
        4. However, just bc conduct is being regulated doesn’t mean free exercise clause doesn’t come into play (see Yoder)
      3. Quintessential case: law has clearly secular purposebut in this case clashes with conduct that is required or forbidden by religious belief
  • Where Court does NOT find violation of Free Exercise Clause: If law has secular purpose, & is a law of general application (not aimed specifically at any particular person or group), no valid Free Exercise claim
  1. Braunfeld v. Brown: Court does not give an Orthodox Jew exemption to the Sunday closing law, despite his argument that Free Exercise Clauseentitled him to it b/c he either must face economic loss from also being closed on Saturdays, or violation of religious belief by being open on Saturdays to make up for lost day of business on Sunday. There is secular purpose, & not aimed specifically at Orthodox Jews.
    1. Held: the court rejects the challenge against the Sunday closing law
    2. Rationale: No entitlement to exemption because this is just a general across-the-board secular law that applies to everyone; just so happens that operation of statute has adverse impact on this particular individual and his practice. Law is not aimed at any particular group
    3. Court also notes that technically speaking this does not violate Braunfeld’s religious practice (not prohibiting him from practicing on Saturday) – it’s just going to be more expensive for him to observe
    4. Plurality says neutral law, applies to everyone & secular goal – religious impact was collateral and happens to fall on Braunfeld and comes into conflict with his religion. Our country is made up of numerous religions and thus it is near impossible to pass legislation without someone being affected.
      1. Therefore, law is presumptively what it says- deferential standard of review.
    5. This case is revived in Smith
    6. Where Court DOES find violation of Free Exercise Clause
      1. 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
      2. 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)
    7. 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)
      1. Issue: whether South Carolina has penalized her for exercising/adhering to her religious beliefs.
      2. 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
        1. If Court applied Braunfeld then she wouldn’t have a case; the deferential standard of review would sustain the action by the state.
      3. South Carolina did not adopt this policy out of some hostility toward Seventh Day Adventists or the petitioner. SC’s argument is that it has a good reason for not granting exemption: if we have to give unemployment benefits that claims on day they were asked to work was their Sabbath and that’s why they were fired, then will lead to fraudulent claims.
      4. Supreme Court applied strict scrutinyto state’s rationale asking if there was some compelling state interest that justified the substantial infringement of the appellant’s First Amendment right. The only interest asserted was the filing of fraudulent claims – SC didn’t want people just claiming they were Adventists just to get Saturdays off.
      5. BUT the state must demonstrate that no alternative forms of regulation would combat such abuses without infringing 1A rights
        1. Court found that exemptions could be administered without undermining the unemployment compensation system
      6. SCOTUS applying a form of SS and the justification a state offers for upholding a law that infringes on 1A Free Exercise must serve a compelling state interest! And the fact that there are other options or alternatives available to fight against fraud shows that this measure did not need to be applied to have a blanket refusal of unemployment benefits to these people.
      7. Stern said this is the test on the books? Very heightened level of scrutiny
    8. Wisconsin v. Yoder: Yoders are Amish family that want to pull their kids out of school before HS b/c they want to educate them in the Amish tradition and HS would interfere with that. WI law requires that children attend school until they are 16.
      1. Held: Requiring kids to attend school until they are 16 violates the Free Exercise Clause.
      2. Rationale: Applies SS to find that the incremental gain from two add’l years of education isn’t enough to violate Yoders’ right to exercise religious beliefs. Seems to give weight to the fact that we’re dealing with the Amish and relying on idea that these guys aren’t just any religion.
      3. Let’s stipulate that having an educated citizenry is a compelling interest and attending school is necessary to achieve that interest. Why is the Court still willing to go in favor of the Yoders? The way the Court sees it, the Yoders aren’t saying they are against education altogether. They’re fine with the kids going to school through 8th grade, they’re just resistant to those extra two years.
      4. If it’s just the Yoder’s interest, then it will be outweighed by Wisconsin’s interest in education generally. But the way the Court is seeing it, instead of seeing this merely as the Yoder’s interest, it’s really the Amish and society’s interest at large. What’s at stake here is not the state’s interest in education, but the state’s particularized interest in keeping the kids in school for 2 more years. If you look at it that way, then you get a different result. So how you frame these kinds of issues is going to be more or less dictate the outcome.
      5. All about how it’s framed.
        1. WI would like to characterize it as the overriding general interest in having an educated citizenry against the Yoders’ very particular interest.
        2. Yoders want to characterize it as the incremental state interest of having two more years of education versus society’s interest in protecting free exercise.
      6. If Yoder’s weren’t religious but just wanted to pull their kids from school for philosophical/secular reasons?
        1. Not allowed. Court specifically said there has to be some religion exercise involved and cannot do this just for philosophical reason as as Thoreau did while writing Walden.
        2. If the source of the motivation is secular and not religious, doubtful that it gets the same protection. – can’t say my uncle influenced me to pull my kids out of school; no.
      7. HYBRID CASE: Court now rationalizes this strict scrutiny application as being the result of two constitutional rights involved: the right of privacy (raising kids) DP/FREEDOM and free exercise – both together seemed to win the case for the Amish. Cf. to Obergefell!
      8. How court characterizes the interests to balance is outcome determinative. Could have said state had broad interest in education while Yoder’s had narrow interest in keeping their kids home a couple years.
  • *Smith: Leaving the Sherbert test
    1. The formal test is Sherbert (strict scrutiny), but Court was not applying it rigorously – Smithsolidifies what Court had already been leaning toward. During this period court promulgated the Lemon test for Establishment Clause. On eve of Smith, court recites Sherbert as the test but not applying it other than in Yoder.
    2. Rule: When the state has an across-the-board rule governing certain conduct, the court will give the gov’t a great deal of leeway to enforce that rule across the board in every instance, even when the rule falls on conduct that is inspired or motivated by religion (Smith) (will use rational relationshiptest)
    3. Rule: Court will use strict scrutinywhen:
      1. There is a free exercise claim + some other substantial constitutional interest (such as in Yoder: free exercise claim plus right to direct upbringing of children (substantive due process)); this is a conjunctive test and when you fuse free exercise with a substantive due process right then you get a hybrid claim; the court sees a kind of synergy going on; therefore, Yoder is not overruled but distinguished; OR
      2. Case where gov’t targets a particular religious practice or ritual (Hialeah)
  • Employment Division, Dept of Human Resources v. Smith: Ps were two people who had been denied unemployment compensation. They had been fired from their jobs at a drug rehab center for their use of peyote. The Ps agreed not to use drugs for their job. Court upheld gov’t’s denial of unemployment compensationfor petitioners. State had criminalized peyote across-the-board.
    1. Argument of petitioners: the gov’t is violating their free exercise of their Native American religion by refusing to give unemployment comp.
    2. Issue: whether states have the constitutional authority to criminalize the use of peyote, even if used in a religious ceremony
      1. If so, people using that illegal substance, even for religious reasons, can be fired and denied unemployment compensation
    3. Court restricts Sherbert to its facts – says it laid down a specific free exercise principle in particular unemployment compensationcases; says can’t honestly say court has been applying the Sherbert test, it didn’t lay down general, comprehensive test for all claims involving free exercise.
      1. Was claiming to use SS but then wasn’t really applying it to cases
    4. Court applies a species of rational relationshiptest when the state has an across-the-board rule governing certain conduct, even if it affects conduct inspired or motivated by religion
      1. To say that a person’s right to free exercise has been burdened, of course does not mean that he has an absolute right to engage in the conduct
      2. The freedom to act, unlike the freedom to believe, cannot be absolute
    5. Rationale: Must weight competing interests: balancing the state’s generalized interest in preventing use of dangerous drugs against this particular individual’s use of peyote.
    6. Smith is not aimed at a religious practice that would get strict scrutiny for targeting religion, but this is a neutral law and not targeting religion.
    7. Scalia did not want SS to become the presumptive standard for these claims because it thought the Court would be wasting its time entertaining silly arguments and then the flood gates would be opened to all
    8. Dissent: looks at this from a strict scrutinyapproach, and asks what the state’s specific interest is in preventing just these two people in using peyotein a religious ceremony against the free exercise focus
    9. Critics say that Smith reads the Free Exercise Clause out of the Constitution; drained its potency à and then even a hybrid claim such as Yoder still gets you to strict scrutiny, but shows that the Free Exercise clause alone doesn’t really get you too far
  1. Smith is Sort of the Flip Side of Yoder
    1. Yoder (strict scrutiny--- was looking at this case through a lens for society) -- and then on the other side of the scale was the interest of WI to have students go to two more years of school
    2. Smith -- now what is being framed as the state's interest in combating drugs and then on the other side under the rational basis standard, we are going to look at Smith's interests VERY NARROWLY IN HIS INTEREST IN JUST USING PEYOTE. So, we aren't taking a broader viewpoint of who this will affect, and not putting society on the smith side of the scale and rather just Smith and his own issues.
    3. Okay, so smith is saying that an exemption is not constitutionally compelled in the way that it was under the Sherbert standard. ---> yet States can choose to exempt what they wish
  2. City of Hialeah: Court used strict scrutiny & struck down city’s ban on ritual slaughter of animals in relation to the practice of religion. Many exemptions which ultimately left only religious practice prohibited.
    1. Rule: If you have a law specifically targeted at a religious practice, that will be different than a neutrallaw that happens to fall on religiously inspired conduct as in Smith; this is targeted.
    2. While this is supposed to be a general ban (on the face), functionally and in practice it was loaded with exceptions (can slaughter a chicken for food, science, etc.) – when you added all the exceptions, it was not a general rule anymore – substantively targeted the Santeriaritual of slaughtering chickens
    3. Stern point out that the situation is not going to always be so extreme as this case or where there is a golden calf, etc. but that there is going to be legitimate law with a secular purpose and someone will want an exemption claiming that it violates their beliefs and practices
    4. Ex: let's suppose stern bows down to a duck figure -- and let's suppose that the state of Florida passes a law against bowing down to ducks --- this is unconstitutional -- not a neutral across the board law that is aimed squarely at a specific religious practice --- this resembles the Hialeah case
  3. Free Exercise Rules''''
    1. Apply strict scrutiny when…
      1. General rule applied to someone who wants an exemption from the rule – deferential to gov’t (Sherbert)
      2. A hybrid right: free exercise + another substantive constitutional interest (Yoder)
      3. Statute is targeted at religious practice/conduct (Hialeah)
    2. Apply rational relationship when…
      1. 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[edit]

    1. Rational basis/relationship test: Court will only ask whether the classification is rationally related to a legitimate gov’t interest - the default standard
      1. This is a permissive standard; applies to vast majority of statutes
      2. Historical reasons – if general economic law that doesn’t involve suspect class then court defers to legislature’s judgment – retreat from Lochner
  • Test used in the majority of cases, even if outcome seems unfair to P
  1. Intermediate level of scrutiny: the classification at issue has to be substantially related to an important gov’t interest
    1. Gender-based classifications are typically what intermediate level of scrutiny is applied to but in application closer to strict scrutiny.
    2. Court will give the gov’t a chance, but won’t automatically rubber-stamp it like in rational relationship test
  2. Strict scrutiny: classification has to be necessary to achieve a compelling gov’t interest
    1. Applies in limited categories of cases; very difficult standard to meet; usually gov’t will lose because classification choosing not necessary to achieve compelling state interest.
    2. Triggered by two types of classifications:
      1. Suspect classification: if gov’t treats people who are similarly situated differently based on race or ethnicity or ancestry; Court is concerned with who is being treated differently/harmed by this classification.
        1. Ex: Jim Crow laws
        2. Considered suspect class because gov’ts actions are suspicious
      2. A fundamental right is given out in unequal amounts to different classes of people. These are certain kinds of rights or interests where when gov’t distributes them on uneven basis, court is going to examine very closely
        1. Fundamental rights are very few & usually have to be in Constitution
        2. Fundamental rights, in context of strict scrutiny, are usually right to vote'
      3. New York City Transit Authority v. Beazer: NYCTA refuses to employ people who use methadone (blanket prohibition), which blocks the effects of heroin and helps addicts recover. Some people on methadone are highly functioning. CT upholds the policy.
        1. CT: uses rational relationship – is not endorsing the policy, but the NYCTA has a legit interest in protecting the safety of people on public transportation. Special responsibility to work here- lives are on the line.
          1. Minimally plausible that the State would think Methadone use is not good
        2. This may be a little under-inclusive (neglects people in the same boat but using different drugs); but the gov’t doesn’t have to solve all problems or no problems, piece-meal is OK.
          1. Rational basis is very lenient; this would probably fail Strict Scrutiny though
          2. Underinclusiveness isn’t part of the test though. As long as there is a non-laughable reason, the rule is OK.
            1. Case-by-Case analysis.
  • The line drawn here does not circumscribe a class of persons characterized by an unpopular or immutable trait or affiliation
  1. The Court focuses on the fact that methadone use is a bigger problem for the City (less cost to assess other drug users) (the Court accepts this)
  2. Dissent: drug users have been unfairly singled out
  3. The concept of equality is difficult; providing similar treatment to two groups will not result in equal treatment if the groups are not similarly situated
  • Although the no-methadone rule treated methadone users and nonusers differently, the Court thought that the rule did not violate the E.P. Clause because there was a difference between the two classes relevant to the state's objectives of a safe and efficient transit system
  • Court wouldn’t necessarily pass this rule if they were the legislature, but it is rationally related to legitimate government interest in safe operation of NYC transit
    1. Up to plaintiff to show policy is irrational
  1. Railway Express Agency v. NY: NY traffic regulation prohibited operation of advertising vehicles, but permitted placing business notices on delivery vehicles as long as the vehicles were engaged in usual business (regular work) of the owner, and not used just for advertising. Reasoning was to help with traffic issues. Rational basis.
    1. CT: upheld. Not a requirement of E.P that all evils of the same genus be eradicated or none at all.
  2. Note: The Means-End Nexus
    1. A classification is "over-inclusive" if it disadvantages a larger class than is needed to achieve the state's purpose
    2. A classification is "under-inclusive" if some people are not disadvantaged even though the failure to include them undermines achievements of the state's interests

'

Racial Classifications[edit]

    1. Juries:
      1. Strauder: This case shows the origins and rationale for heightened scrutiny in race-specific classifications that disadvantaged racial minorities. Court struck down a law prohibiting blacks from serving on juries.
        1. Mode of analysis court applies: Classic instance of court relying on original intent – 14th amendment written specifically protect blacks – can’t single black persons out for unequal treatment. Also, unfair to those being tried to not have representative jury
          1. Easy call for the Court, especially given the Civil war, etc.
        2. Schools:
          1. Plessy v. Ferguson: involves racial classification, but Court considers it to be different from Strauder; upholds a law that blacks and whites on trains should be kept in separate accommodations or train cars – “separate but equal”
            1. LA law requires that black citizens travelling on railways be in separate passenger cars than white citizens, but in theory equal accommodations.
              1. Strauder is explicit discrimination; Court says this is just something separate.
            2. Rule: when the state adopts a racial classification as opposed to overt discrimination, then that classification is not going to be subjected to SS as blatant statutes that discriminate will be
              1. Plessy argues intent behind the law is gov’t believes blacks are inferior. Court says he’s being oversensitive and it’s his fault is he feels that way, African Americans’ fault that they feel this way; state only did it because viewed it as reasonable.
              2. Court also says that legislation cannot overcome racial prejudices; but it must naturally happen through socialization; aka laws can’t force people to be together
            3. Separate accommodations are not a violation of the Equal Protection clause b/c there is not “inequality,” at least in a superficial sense (accommodations are “equal”). Separate but equal standard.
              1. Standard of scrutiny: rational relationship'''is actually used here; Ct speaking in terms of is it reasonable for blacks and whites to travel separately? Looks reasonable to Ct because they took separation of races as the way our society is, the mores, the customs, everyone knows blacks and whites don’t hang out together, and quite frankly Court figured they preferred to be separated
                1. reasonableness: customs, social mores of the day. what people at the time would be comfortable with
              2. A Law that mentions race isn’t necessarily equivalent to racial discrimination, can be reasonable explanations for racial classification (obviously not still law)
              3. **Dissent: 1st Justice Harlan (2nd Justice Harlan wrote Cohen v. Ca). “Separate is not equal” – said everyone knew the purpose of these separate cars was so that whites didn’t have to be around blacks, or so that blacks would be kept apart - he basically says our Cons’t is color blind and whites and blacks are in this for the long haul and are working towards the same goal, and so need to figure this out
                1. Overturned in Brown v. Board
              4. In between Plessy' and Brown, NAACP came after this to challenge racial classification and racial separation in particular in educational institutions, beginning with institutions of higher learning. Strategy was in a bunch of instances demonstrate that in this particular case separate was not equal; rather separate was unequal in fact.
                1. Sweatt v. Painter (1950)– U Texas had one major law schoolthat excluded blacks, and after litigation began elsewhere, Texas created a separate law school for blacks. The NAACP sought to demonstrate that this separate law school was unequal, which was not hard to do (white school had more resources and prestige), but Court went further than that:
                  1. Rule: in determining if accommodations are equal, Court will look at tangible resources as well as intangible resources- what the school’s degree will do for you (more networking at white school)
                  2. Held: The black student must be admitted to the white law school because a separate black law school IS NOT EQUAL. Not substantially the same degree as would be from UT law with its resources, history, prestige and network.
                    1. NOTE that while this is still true, the Court is really looking at the social and educational impact for their rulings versus just calling it what it is: white race is acting superior to blacks to such an extent that they can’t possibly share things with them.
                  3. Higher Education: the NCAAP decided to target Higher Education to bring down separate but equal as they thought there would be less animosity and backlash at the graduate school level à basically these students are adults & and not peoples’ kids. ALSO, it seemed to be easier to show inequality at this level where there was often no school for blacks at all; or Universities had to struggle to create one for blacks and this put pressure to essentially for the Uni’s to let them in
  • Brown v. Board: Court held that state imposed racial segregation in public schools in and of itself, without specific demonstration of disparity, violates equal protection
    1. Issue: straightforward – does state enforced mandatory racial segregation in public schools categorically violate EP?
    2. Holding: Yes. State enforced racial segregation in public schools per se violates the EP clause. Separate but Equal has no place; separate facilities are inherently unequal
    3. Even using reasoning in Plessy, court could have found the segregation violated EP- schools so obviously inferior to white schools. Court could have decided under Plessy by finding the schools were manifestly unequal.
    4. One of Justice Warren’s great achievements that he secured unanimity in this case.
    5. Point of Contention: Original intent poses a problem that Ct has to deal with. No indication in people who approved EP clause had in mind that the clause would have the effect of invalidating racial segregation in public schools. Court said that framers of the 14A EP did not think about state mandated segregation in public schools – we have a clean slate on this issue (court being disingenuous?)
      1. Ex: say research turns up a poll from the time of the 14th amendment that said that the founders didn’t intend to have desegregated schools. Would this still be binding on the court?
        1. NO, it's a bad idea to turn the clock back, the framers did not mean to freeze in perpetuity their thoughts of the amendment at that time but that it should consider evolving values and norms?
      2. Framer’s intent shouldn’t freeze the application of a Constitutional provision, couched in broad terms so it could evolve. So as Supreme Court is concerned, intent is not going to impose an insurmountable obstacle to finding the racial segregating regimes violate the constitution. Not concerned w/ specific intent but the broader organic purpose of the provision.
    6. But this doesn’t really tell us why the court does find that segregated schools violate the EP clause: it is plain and simple that the state is telling black kids “you’re inferior” and this affects their hearts and minds in a way unlikely to ever be undone
    7. Main Harm: separating people by race creates a feeling of inferiority, which will undermine education
      1. Education is the very foundation of good citizenship, so we do not want to deprive minority children of educational opportunities
      2. FN 11- basis for psychological pronouncement that racism has profound psychological effect on school children. But some have been troubled by FN 11 thinking it as soft data, disliking the socialist researcher, also logical implication is that another study could show that racial segregation doesn’t produce this type of harm and then Brown should be overturned.
      3. When state imposes this kind of segregation carries out the belief that African-Americans are inferior and unworthy of association with whites. Don’t need a study to recognize this. Underlying reason for EP guarantee is the requirement that all citizens be treated equally, be considered as equals under the law and when you have this type of state-imposed segregation, it is meant to treat black citizens as not equal.
        1. Better reasoning in Harlan’s Plessy dissent, “everyone knows” we have these laws b/c believe blacks are inferior.
      4. Federal gov’t also is not allowed to use segregation under the 5th amendment due process clause (which has an equal protection component). Federal gov’t, like the states, is subject to equal protection even though no explicit EP clause in the 5th amendment.
      5. Plain & short opinion so that newspapers would reprint it and so people would read it.
    8. Marriage
      1. Loving v. Virginia: Virginia forbids marriage between whites and non-whites (exception for descendants of Pocahontas). Virginia sought to accomplish the preservation of the racial integrity of their citizens. Loving's bring E.P. challenge, but Virginia says this is equal because they are all treated exactly the same because they will both be in jail (equal treatment)
        1. Court takes diff approach from Brown (no studies)
        2. The Court announces that it will apply generally to all explicit racial classification from this point on a standard of rigid scrutiny (strict)
          1. Pretty easy case because obviously as the court sees it, the point of the statute is to maintain white supremacy (no legit or compelling state interest)
          2. A lot like the segregated schools in Brown; the real fatal defect of state mandated racial segregation in schools, as it is here in bans on interracial marriage, is not that it will harm mental health of minorities, but that it is rooted squarely that racial minorities are inferior to whites and unworthy of association
        3. At the very least, the E.P. clause demands that racial classifications, especially suspect in criminal statutes, 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 the racial discrimination which it was the object of the 14th amendment to eliminate
          1. “There is patently no legit overriding purpose independent of invidious racial discrimination which justifies this classification today”
        4. Rule: broad - applies “rigid scrutiny” which amounts to strict scrutiny to all racial classifications:
          1. The only purpose for the statute is maintaining white supremacy – not a legitimate state interest and certainly not a compelling interest. Premise that a race is inferior is an intolerable premise for stat.
          2. Rule: State may not take action premised on the inferiority of a particular race
        5. Typically, when you subject a test to strict scrutiny, the Court won’t usually bother with the nature of the State interest. They’ll look to the first prong and see that even if you have a compelling interest, they can show that the classification is not necessary to prove that interest.
        6. From here on out, racial classifications subjected to strict scrutiny.

De Jure vs. De Facto Discrimination[edit]

    1. De Facto Discrimination: facially neutral laws, but in effect have a disproportionately adverse effect on a minority group (disparate impact)
      1. The question is not whether the legislature intended to treat blacks and whites differently, rather the question is whether the legislature intended to treat them differently simply for the sake of harming a racial minority rather than for the sake of achieving some permissible goal
        1. The strict scrutiny doctrine holds that only a showing of a close fit and an overriding gov. interest can overcome the inference that the classification was motivated by a desire to harm the minority
      2. First, was there a racial classification in the first place?
        1. Yes: Draws racial lines or is motivated by a racial purpose = STRICT SCRUTINY
        2. No: Non-race specific = RATIONAL BASIS
  • 'Next, Test for Whether Disproportionate Impact Rises to Discrimination'
    1. Phase 1 (π). racial classification + motive: P burden to show facially neutral but operates with disproportionate effect on minorities.
      1. It is not as if a disproportionate impact is totally useless, because the court suggests that it is possible that a disproportionate impact can raise at least a permissible inference of discriminatory motive
    2. Phase 2 (govt). Gov’t burden to provide plausible/believable non-discriminatory explanation
      1. If gov’t explanation accepted, ends here. (Usual case.)
      2. If not, go to phase 3.
    3. Phase 3 (π). New burden on P to give evidence of discriminatory motive, usually where P’s lose.
      1. "Discrimination was a substantial motivating factor in enacting of the law”
        1. events leading up to adoption of a particular law (e.g. increasing black police officers) (doesn’t necessarily guarantee victory, but helps)
        2. deviation from normal procedure (e.g. usually 2 votes + 1 year to implement law, but implemented immediately after 1 vote)
  • direct evidence (leg/admin history, admission)
  1. If accepted, go to phase 4.
  2. If not, P loses.
  3. Phase 4 (govt). Gov’t can still win if can show would have made the same decision despite discriminatory motivation, heavier burden.
    1. Rule: if plaintiff can show that
      1. gov’t action is facially neutral but has a disproportionately adverse effect on a minority (Yick Wo),
      2. that the state is engaging in that action for an invidious discriminatory purpose (Washington v. Davis), and
  • that the state has no alternate neutral motive (Mt. Healthy), the regulation will be struck down.
  1. if government can show that decisionmakers simultaneously and independently held
    1. that they like it because it does a good job of ensuring literate police officers
    2. that they like it because it prevents blacks from getting the job
  2. **would have adopted the same law even in the absence of a racially discriminatory motive**
  3. When taken together, Palmer & Washington suggests that a facially neutral statute is subject to enhanced review only when it has both a discriminatory purpose and a disproportionate impact.
  4. Discriminatory motive/intent is needed for successful de facto discrimination claim
    1. But VERY hard once gov. has met its burden of persuading the court that yes, there is a reasonable non-discriminatory motive that explains why we adopted this particular measure
  5. 'Conduct demonstrating discriminatory purpose'
    1. Yick Wo v. Hopkins: Court struck down an ordinance that required those wanting to operate a laundry in a building that was not brick or stone to obtain a permit from the board of supervisors, where board refused permits to almost all laundry operators of Chinese descent and gave consent to everyone else.
      1. Holding: Ordinance per se didn’t violate equal protection. There’s not a problem with the ordinance, but fatal effect with the way the ordinance is applied; discriminatory motive.
        1. It was administered with a discriminatory motive by the members of the board of supervisors and discriminatory effect that it produced that creates the violation of EPC.
        2. When you have a pattern like this, there is no other plausible explanation except for a deliberate motive on the part of the officials to discriminate against citizens because of their Chinese descent.
  • Court doesn’t strike down laws for improper motive on behalf of legislators (O’Brien);
  1. however, there are exceptions to this including Equal Protection
    1. illegitimate motive here plays crucial part in striking down the gov’t conduct
    2. the Establishment Clause is under the exception (see Lemon test – 2nd prong looks at secular purpose and see Wallace v. Jaffree, moment of silence case (where the laws were motivated by encouraging religion).
  2. Rule: A neutral law that is being administered in a discriminatory way violates the EPC. Disproportionate adverse effect on a minority can be evidence of the impermissible intent that lies behind the administration of this statute
    1. Important distinction: it is not the pattern of conduct against the minority per se that violates the EPC, but the pattern as evidence of impermissible motive that requires invalidation of what is being done
      1. Note: EP is an area where Court WILL examine motives
    2. Rare to find evidence of discriminatory motive as strong as in this case – Yick Wo shows that on those cases where the Court will find that there was a violation of the EPC based on motive, the court will have to rely on circumstantial evidence.
  3. Gomillion v. Lightfoot: Court struck down Tuskegee, Alabama’s re-drawing of voting districts, when all but 4 or 5 of the city’s 400 black voters were eliminated, and no white voters were eliminated
    1. The line/weird shape of the district itself per se does not violate EPC, but in this context, it is indisputable evidence of discriminatory purpose, no other explanation. If the allegations were proved, the statute infringed on the right of blacks to vote in violation of the 15thA. Weird shape circumstantial evidence of discrim motive
  4. 'Conduct NOT demonstrating discriminatory purpose'
    1. Note: if the classification is non-race specific, then the court will use rational basis review despite the impact on the minority group and probably uphold it
      1. A court should apply strict scrutiny to a facially nonracial government action only if the plaintiff can show that the action was taken for a discriminatory purpose!
      2. A facially neutral statute is subject to enhanced review only when it has both discriminatory purpose AND a disproportionate impact.
    2. Washington v. Davis: Court upheld a test for qualifying police officers, even though a significantly higher number of black applicants were failing test than white applicants. So, there was a disparate impact but not because of discrimination – just natural statistics
      1. Facially neutral practice of requiring applicants for position in DC police force pass a particular test.
      2. Argument by plaintiffs: b/c of that disparate impact, there is a violation of EPC in administration of this test
      3. Here a neutralregulation is administered in an apparently neutral way, but produces a racially disproportionate impact
        1. Rule: plaintiffs must show an “invidious discriminatory purpose”
      4. Differences from Yick Wo
        1. The numbers are not as dramatic here – not all black applicants fail, nor do all white applicants pass
        2. Here the test was objectively administered (machine-graded) – not so much room for subjectivity or bias
  • Was not a blatant discriminatory government action – in Yick Wo, there was no plausible denial at all that law was being administered in a discriminatory way
  1. Reasons Court does not think there is invidious discriminatory purpose
    1. Wasn’t just one race failing the test, whites failed too!
    2. The test gauges verbal skills that we want our PO to have! We should demand a certain level of capacity in verbal skills, just as it’s okay to have a physical fitness test
  • DC’s recruiting behavior also satisfies the court that they are not trying to maintain an all-white police force – affirmatively recruiting black officers
  1. Impact alone is not sufficient to show intent; must show that DC intentionally, went out of its way to adopt this particular test because it hoped to minimize the number of African American police officers.
    1. Here bar is low- plausible reason, legitimate reason police officers need to be able to read/write/communicate and that test would help determine this. Furthermore, direct evidence of intent is that recruiting more African Americans to join the force.
  2. Plaintiff can demonstrate discriminatory intent, but still lose. The burden shifted back to gov’t after plaintiff showed discriminatory motivate if gov’t shows would have reached same decision anyway—tough to show, say 5 person board who makes police force decision and one member caught saying “let’s use this test because it can decrease the number of black applicants that can enter force” and then four others say no we are against discrimination but still want to use test because effective. Since would have passed either way, then not invalid. Going to be hard to show this.
  3. Note that the court recognized the large disparity in numbers in blacks failing and so could be used to help draw and inference of discrim motive, but Police Dept was successful in showing this was NOT occurring.
  4. 'Burden Shifting''''
    1. Say we are able to show a disparate impact on blacks, which creates a presumption of impermissible motive.
      1. A court that is confronted with a classification that disadvantages a racial minority must first determine whether it constitutes a “racial classification”
    2. So now the government is to come back and rebut this inference by offering a plausible non-discriminatory motive
      1. The Court finds the law is not motivated by racial purpose (and therefore, no racial classification) and will use RR.
    3. Yet, if you do have the right ammunition as a challenger, there is a theoretical third phase, even if the gov’t has met its burden in phase 2: The Challenger can come back and say this non-discriminatory motive that is being claimed by the government is not true
      1. Claim, that was a cloak for the real reason!
      2. To demonstrate this discriminatory movie at this phase, P could:
        1. Show the sequence of events leading up to the adoption of a particular law and particular practice: i.e. the test wasn’t adopted until there began to be more black applicants
        2. Could also talk about deviation from normal procedure
          1. Did PD rush to adopt this test and cut corners, took procedural short cuts. Big departures from norm?
  • Could also show direct evidence, but rare. Like an officer caught on record saying this test is to rid PD of blacks
  1. If the P is able to show discriminatory motive during phase 3, the burden shifts back to Gov’t to show that there are other independent grounds that the Gov’t would have implemented this policy anyways even if not for the discrimination “we would have reached the same decision anyways, because we need tests”
    1. This burden is going to be very high and gov’t is usually going to lose.
    2. If Gov’t did prevail, it would look like: “You caught us, one of the attractions of the test was to reduce blacks in the PD, but this was just one of the best tests that we could find, and we were going to implement it anyway to get better officers across the board”
  • 'Burden of proof''''
    1. Burden begins with state to show a nondiscriminatory motive
    2. Village of Arlington Heightsv. Metropolitan Housing Dev. Corp. – Court upholds decision of Chicago suburb in refusing to rezone to allow low-to-moderate income, multi-family housing
      1. Decision had a disproportionate impact on minorities, but suburb said it was concerned with property values and honoring the expectations of the people who previously purchased homes there
      2. Rule: Once gov’t gives a nondiscriminatory motive, then it is on the plaintiff to prove that there was a substantial discriminatory motivating factor behind the action
      3. Factors Court will weigh:
        1. Sequence of events leading up to action
        2. Departure from normal procedure practice
  • Substantive departures from normal practices
  1. Legislative/administrative history
  2. Trial testimony
  3. Note: we can’t say any of these factors would, by themselves, be decisive
  4. Cannot attribute the motive of a particular member to the entire body
  5. Rule: Mt. Healthy Test– Having both an invidious discriminatory motive and a neutralmotive: Court will uphold the regulation, b/c the gov’t could say it would have reached the same decision without the discriminatory motive.
  6. Analysis (4 phase)''''
    1. Person or class challenging the facially neutral law can raise a permissible inference of discriminatory intent by showing the way this policy or law is carried out in practice produces a substantial discriminatory adverse impact on religious, racial, gender group.
    2. Places burden on gov’t to say law has nothing to do with that purpose.
  • Then plaintiff would have to show gov’t really did act with discriminatory intent. Hard to get past this point to show gov’t really did have discriminatory motive.
  1. Then the gov’t can still meet its substantial burden of showing not withstanding discriminatory motive, would have reached same decision anyway.
  2. Personnel Administrator v. Feeney: A statute gave absolute lifetime preference to veterans seeking position in MA civil service. Resulted in disproportionate impact on women b/c very few vets are women. Statute is neutral on its face.
    1. Held: Not an EP Violation
    2. Rationale: While there is a discriminatory impact (though it notes that there are some women vets, it’s not mutually exclusive), there is a legitimate state interest (supporting vets) and that there is no evidence of discriminatory intent. Discriminatory intent is not the normal definition—it can’t be that you intend the foreseeable consequences of your action. (Here, the legislature could foresee that more women would be left out.) The actual reason must be discriminatory, not just a knowledge that there might be a disparate effect.
    3. First the Court will ask if the statute is truly neutral in its operation? (are the effects of the statute such that they will always make a distinction between men and women?)
      1. In this analysis we get into a bit of a statistical analysis. The Court found that you can’t really call this a gender-based discrimination because there are still a lot of men who are disadvantaged. So, the class is not defined so much by gender. This is somewhat like what we saw in Washington v. Davis. Where whites also failed the test.
    4. 2) This second prong is more in line with the kind of analysis that we’re more in line with. This is where the Court asks does this classification accompany invidious gender-based discrimination?
      1. So now we are back to this question of intent.
      2. In the context of this case, we’re asking when the Massachusetts legislature passed this preference, did it intend to discriminate against women.
  • Normally you intend the foreseeable consequences of your voluntary actions.
    1. Justice Marshall argued in his dissent that it was inevitable that the Massachusetts legislature knew that it would have this discriminatory impact
  1. But this Court said that this traditional view of intent was not enough. They had to show that the “decision maker…. Selected or reaffirmed a particular course of action at least in part, ‘because of,’ not merely ‘in spite of,’ it’s adverse effects upon an identifiable group.”
  2. It’s not enough that you can see that your actions will affect a disproportionate group, you have to show that that was your goal / target. And here there was no evidence that the Mass legislature created this statute to discriminate against women. This is why those challenging these kinds of classifications are rarely going to prevail. It is extremely difficult to show that the government will adopt it for this reason.
  3. Just showing disparate impact is very limited tool to satisfy the court that there was discriminatory intent.
  • McCleskey v. Kemp: Disparate impact isn’t that valuable in making out case of discriminatory effect; court unlikely to draw adverse inferences about legislative motives based on disparate impact. If you’re looking for a dramatic example of how reluctant the court distinguished discriminative effect from impact, look at this case.
    1. FACTS: McCleskey in this case was charged for murder and sentenced to death. He argues that the capital sentencing scheme in Georgia is racially prejudicial. He introduced a study which showed that the disparity occurs when a black person kills a white victim against a black victim. Basically, if someone kills a white victim, they are much more likely to get the death penalty.
    2. HOLDING: McCleskey lost this challenge.
    3. REASONING: He needed to show purposeful discrimination for his case.
      1. One way to do this was to show that the Georgia legislature enacted / retained this scheme to ensure that white lives were valued greater than black lives.
      2. Could also show that the jury was motivated by the sentencing scheme and took race into account. Have to show that jury strictly chose death penalty because victim was white.

In real life, you won’t be able to demonstrate either of these. Even if it was actually true that the jury had taken race into account in sentencing a defendant whose victim was white, we’ll have no record of the jury’s thoughts. It is extremely unlikely, though, that the Georgia legislature would have kept a scheme in which people whose victims were black would get treated harsher. Similarly, in Feeney, it is doubtful that the Mass legislature would pass a scheme that greatly advantages women over men.

  1. The Court in this case is actually rather candid in that one of their concerns here is opening up the floodgates. Justice Powell says that if we allow disparate impact to serve as motive, then that would pave the way to allowing people to challenge a wide array of laws. On the other hand, there is a troubling aspect on the Court’s insistence that if someone like McCleskey is going to win, he must show that the jury had this purposeful motive. If you take that logical reasoning, what it seems to indicate is that even if you had more extreme statistics of disparity, that statistic would still be meaningless even though it is disturbing.
    1. Justice Powell wrote the opinion in this case. After leaving the court, he actually made an admission that maybe he should have gone the other way on this case.
  2. Court says won’t rely on statistics, doesn’t say 4.3 is enough – troubling b/c what if it was much higher? Intuitively raises some concern.

Affirmative Action[edit]

    1. Affirmative action defined:
      1. 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.
      2. 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 EP.
  1. 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).
    1. No majority opinion; 4-1-4 split
    2. 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.
      1. Test: must show this particular use of race is necessary to achieve compelling state interest. Applies analysis and finds U Davis Medical School does have compelling interest- preserving and promoting diversity, particularly important in higher education.
        1. But U Davis failed to demonstrate that its rigid numerical quota is necessary to achieving this compelling interest. Other ways to promote diversity than a strict quota. More heavily recruit diverse students, etc.
          1. He says you can use racial/ethnic identity as a plus, just can’t have a rigid quota.
  • Burger group of 4 doesn’t get to EP issue because decided on statutory construction rather than constitutional interpretation. They look at Title 6 saying it forbids this admissions process. Title 6 says: those institutions receiving federal funds may not engage in racial discrimination, which is what is going on here.
  1. Brennan group of 4 reaches conclusion based on EP; would uphold admissions system; thought Intermediate Scrutiny was appropriate, gov’t not oppressing but helping minorities and Strict Scrutiny is aimed at oppressive regulations.
  2. Years after this lack of certainty in this area of law, all the Affirmative Action opinions are fractured; Croson first time court as majority adopts particular test.
  3. City of Richmond v. J.A. Croson Co.: the first time the Court gives a majority opinion on affirmative action, prior cases had been fractured – plurality
    1. Richmond made contractors working on city projects subcontract 30% of their contract price to MBEs (minority business enterprises). No waivers were allowed except under exceptional circumstances, like MBEs were unavailable or unwilling to cooperate. Alleged purpose was to remedy past discrimination. Croson challenged this ordinance.
    2. Held: SS applies to all racial classifications adopted by states and local governments. Whether or not the law purports to help a minority group or just discriminate. Invalidates the program.
      1. They were emulating a similar federal program that was approved by the SCOTUS earlier (this was Fullilove v. Klutznick). Fullilove said that at least 10% of federal funds to certain work funds had to be set aside for minority uses. The difference between the 10 and 30% was that Richmond had a much higher minority population than did the country as a whole.
      2. Two opinions
        1. SDOC: You don’t know w/o applying SS if use of race is benign or not. She says that the problem is that you really can’t tell in the first instance whether a particular classification really is helpful on the one hand or harmful on the other without strict scrutiny. She’s also concerned that if the Court allows race-based classifications that are not really remedial (trying to remedy the lingering effects of past discrimination), then these types of programs will promote the idea that minorities are inferior and can’t make it on their own without help. She also expresses a fear that these types of programs will sow the seeds of a racial hostility.
          1. Have to show reliable findings about legit gov’t agency that a) past discrimination actually occurred (must be a demonstration that the particular entity involved has been involved in some form of past discrimination which is now being remedied), and b) continued harm (lack of business for MBEs here) can be attributed to past discrimination.
        2. Marshall, dissent: Same argument he made in Bakke: when you have program designed to aid racial minorities, it ought to be subjected to intermediate rather than strict. When it comes to racial classifications that are designed to help minorities, then the court ought not to apply strict scrutiny but rather should apply an intermediate level of scrutiny. This is based on the idea that the EPC was originally made to prevent harm to minorities. This is a position that has never commanded a majority of the Court.
      3. Reasons for holding were as follows:
        1. One needs SS to determine if the racial classification in question really is benign or not (easy for a city or state to claim it is benign to try and get HS, but one really can’t tell if that is true w/o SS)
        2. We want to make sure that the classification goes absolutely no further than it needs to, otherwise stereotypes will be strengthened – Minorities are inferior and need help to make it
        3. If you go too far with these types of programs, we will end up with “politics of racial hostility”
  • Under the SS that Adarand and Croson require, “benign” classifications will be upheld only if they are narrowly tailored to achieve a compelling government interest.
  1. Adarand Construction, Inc. v. Pena: SS, Court struck down a federal program that gave incentives to hire “disadvantaged individuals.” Program to advance the disadvantaged is not presumptively unconstitutional. Court’s concern is that they use race to find what is disadvantaged. Plaintiff was the low bid on a construction job but did not get it because the hiring contractor could get bonus payment from federal gov’t for going with a business owned by minorities.
    1. Court remands the case.
    2. Rule: Court will also apply strict scrutinyto any racial or ethnic classification, including federal cases.
  • Majority (O’Connor): 3 basic established principles established in Cronson that govern racial classifications:
    1. Skepticism: we should give racial/ethnic classifications a searching inquiry. If take skepticism at face value, then not clear why need the other 2 established principles.
    2. Consistency: all racial/ethnic classifications will be looked at under strict scrutiny, doesn’t matter the race of those burdened or benefitted. Don’t treat AA programs differently than treat racial classifications meant to harm minorities.
    3. Congruence: strict scrutinywill be applied to both questions under 14th amendment (state programs) and 5th amendment (federal programs).
  1. A subtle feature of the program was that the government was viewing the minority groups as inferior or less qualified; government is considering minorities as disadvantaged because non-minority companies could not get the advantage unless they could show that they were disadvantaged -- this was not on minorities who were already considered disadvantaged
  2. Dissents
    1. Stevens':' said we don’t we have to use strict scrutinyto decide whether a classification is benign or not – it’s obvious (analogized it to difference between welcome mat- AA programs and “No Trespassing” sign- Jim Crow Laws); wrong to treat those laws the same. He is pulling for intermediate scrutiny.
    2. Ginsberg':' Strict in theory, fatal in fact is the norm. She was saying that strict in theory doesn’t necessarily mean that the particular law in theory is going to be struck down (Fatal in fact). She’s basically trying to salvage whatever she can and say that we shouldn’t assume that since SS is going to apply now that it is always going to be the death of AA programs that make racial classifications
      1. Stern thinks she’s wrong – says she’s engaging in wishful thinking bc SS is fatal, the only enclave left that perhaps the Court will tolerate some reliance on race or ethnicity will be university admissions but even this is on life support.
    3. Employment Context''''
      1. SS: Must be necessary to achieve compelling state interest.
        1. Compelling interest: remedy past discrimination (Croson) based on:
          1. Documented discrimination.
            1. NOT general societal discrimination.
          2. Education Context''''
            1. Application of SS in educational context doesn’t prove inevitably fatal.
            2. Indicia of a good AA program:
              1. Compelling interest? Good effects of diversity (Grutter, Gratz)
              2. Narrowly tailored?
                1. No quota or assigned points. (YES Grutter, NO Gratz)
                2. Shouldn’t unduly burden non-minority population.
                3. Should be for limited duration.
              3. University admissions''''
                1. What strict scrutinymeans in this kind of case: institutions do not have to sacrifice their identities by trying to pursue race neutralalternatives (e.g., lotteries, only admitting top 10% of undergrad institutions, etc.)
                2. Rule: rigid numerical quotas fail for relying too much on race/ethnicity. However, schools may take race/ethnicity into account as part of entire application file, a plus.
  • Bakke–16 of 100 slots at a medical school were reserved for minorities. Plaintiff, who had better credentials than a lot of the people admitted through the special admissions program, was rejected. He argues that if he had been able to compete for one of the 16 slots, he would have been admitted, and the program therefore violated the equal protection clause. Can’t blatantly just reserve spots for minorities. NEED TO LOOK AT ENTIRE APPLICATION FILE, besides just their race.
    1. There were three principal opinions in this case, but Justice Powell’s opinion became the determinate opinion
      1. Rule: even when the help being given is benign, but you still have to apply strict scrutinyto any racial or ethnic classification
      2. Rule: Bakkewins, b/c the program uses a “rigid numerical quota.” If the program in question is regarded by the Court as a quota (relying too heavily on race or ethnicity), the program will fail. However, if a university wishes to make race or ethnicity a “plus” in the consideration of the application, that does not violate equal protection in and of itself
    2. Rule: Diversity in higher education, particularly law schools, constitutes a compelling state interest.
      1. At the same time, the Court seems to abandon a retrospective, remedial justification for AA in favor of prospective, diversity-based rationale
    3. Grutter v. Bollinger (2003)(strict scrutiny lite?)
      1. Mich. Law AA program. No decision on an applicant is auto--you can’t determine by numbers alone whether the applicant is going to be admitted or not. Race does not play an automatic role—no one is going to be automatically admitted based on race. But the school does take race into account. The school is trying to achieve a “critical mass” --an ideal number of racial minorities to create a diverse environment.
        1. Powell in Bakke provided that diversity was a legitimate state interest and that race could be considered to get diversity. Also, that a quota could not be used.
      2. Held: Program upheld. At least 7 votes: diversity in education=compelling gov’t interest
      3. Majority:
        1. The critical mass portion of the program does not rise to the level of a quota
          1. So, Michigan Law School is aiming for a ‘critical mass’ of racial and ethnic minorities that have historically been subjected to racial discrimination in our society.
          2. The whole concept behind this was that having some significant representation is to realize the educational benefits of having diversity. Also, you don’t want the members of those groups who are admitted being isolated so you want more than a negligible number of them.
        2. Individual outcomes are not automatically determined based on race
          1. MLS’ view was allowed though because race is just used as a plus factor amongst many other factors. You still had your file individually reviewed. But if race was just a plus factor, you’d imagine fluctuation from year to year in the number of minorities and that’s what O’Connor said happened here. That’s why she said it was not a quota and there was not just a single amount that they wanted.
          2. Justice O’Connor didn’t believe that MLS needed to adopt something like a lottery. Well MLS engages in holistic review and if you just did it random, then there is no assurance at all that you’ll get the type of diversity that you’re trying to achieve.
        3. There isn’t a set number of minorities--in fact the numbers have fluctuated significantly each year. (counter, fluctuated with the total admitted students)
        4. The school is not required to exhaust every possible race neutral alternative
        5. OK if race is a plus factor but not decisive factor.
      4. Dissent:
        1. Skeptical of notion of critical mass—say it’s another way of saying quota.
        2. Kennedy thinks Mich. Law hasn’t adequately demonstrated it needed to take race criteria into account to this degree.
        3. When Rehnquist looks at the number of minorities represented, why does he conclude that this is really a quota? He basically says that if you really think you need a certain number of minorities for the critical mass, you would expect the numbers to be roughly the same and there wouldn’t be a dramatic difference in the representation between the separate group.
        4. The dissenters argue that this is strict scrutiny lite. Justice Kennedy goes out of his way to acknowledge that he thinks that an appropriate consideration of race is permissible but at the same time if you’re going to use race, you have to make sure that the court closely scrutinizes it and you can’t make race an automatic factor like they view it here.
        5. One of the things you hear from dissenters like Scalia is that the effect of programs like this is that it will institutionalize the use of race by the government. Once you allow the government to take race into account, it becomes an irreversible habit. O’Connor was optimistic that the type of necessity that is needed today will not be needed in the future (sunset).
      5. Major debate: school’s right to stay a top school
        1. Majority: School doesn’t have to change the type of school it is (lower its standards) to achieve diversity.
        2. Dissent: The reason it has to use race as a consideration is b/c it has such high standards to get in, if it lowers its standard it wouldn’t have to do this.
      6. Problem w/AA programs (Scalia):
        1. Entrenches race as part of public life and part of gov’t decision-making.
        2. SDOC addresses: In 25 yrs we won’t need them.
      7. Gratz v. Bollinger: Court strikes down an affirmative action program at Univ. of Michigan, which automatically gave points toward admission to minority applicants. The challenged policy ranked applicants on a 150-point sale that accorded different point values to factors such as GPA, test results and personal achievements. HOWEVER, an applicant automatically got 20 bonus points if he or she was a minority, attended a predominantly minority or disadvantaged high school, or was recruited for athletics
        1. Rule: programs that automatically give points based on race, instead of considering each applicant individually with race just being a factor are quotas
        2. Giving 20 points makes race decisive versus merely a potential “plus” among factors. Minority race makes admittance automatic
          1. These 20 points virtually guarantee admission and applicants are not afforded an individualized review
          2. 20 points is A LOT of points compared to point values for other important characteristics
        3. Dissent (Souter and Ginsburg): program is factually the same as the program approved in Grutter, where they approved taking race into account – why can’t you put a number on it?
          1. Greater deference should be given to U’s admissions policies because they are designed to remedy a difficult history of racial inequality
        4. 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[edit]

    1. General
      1. Important state interest will be a given but substantially related is the difficult portion.
      2. Exact level of scrutiny is not crystal clear, but the Court has moved a cosmically long way from Bradwell, which sustained a state ban on women attending law school.
  • Things start to change in early 1970s, more skeptical attitude toward overt gender-based classifications.
  1. Rule: laws based on a gender classification, whether or not the stereotype is “rational,” will be subject to intermediate scrutiny (Frontiero, Craig, U.S. v. Virginia)
  2. Law must (1) Serve an important governmental purpose, and (2) be substantially related to the achievement of those objectives (Craig)
  3. Reed v. Reed: First case to invalidate a gender classification under the EPC. Iowa law for appointment of intestates established a hierarchy system but said of people claiming the right, if they were equal then the man would have the preference. Violated the EPC. Although this brought clarity to the issue, this was arbitrary legislation that is violative of the EPC.
  4. Frontiero v. Richardson: Court struck down a statute where male members of the armed services could automatically claim spouse for larger housing allowance, but female members had to demonstrate that their spouse was in fact dependent on her for over half of his support. State’s justification: rational stereotypes make for administrative efficiency.
    1. Held: Plurality struck it down; no majority
    2. Rationale: Classifications based on sex inherently deserve “close judicial scrutiny.” Sounds a lot like SS, and characteristics make it seem like it would fit:
      1. Immutable characteristic?
        1. Can’t change if you were born male or female
      2. History of discrimination? To extent under Carolene Products fn. 4 we consider the amount of political clout and consider law adverse to groups w/o clout, can’t precisely equate women w/blacks, but you can make general comparison.
  • State’s argument for admin. considerations not enough under scrutiny applied here: would suffice under RB test.
  1. Finally, one thing is that even though we generally agree that race is irrelevant to most of what the government wants to do, that’s not necessarily true of gender. We certainly don’t feel the same way about separate restrooms for men and women.
  2. One of the other things worth noting is that the court is obviously offended by the stereotype that is perpetuated by this kind of classification. Clearly what the government contemplates in distinguishing between men and women in the dependency thing, the view is that men were breadwinners and women were not. But at the time it could be argued that that was just the way things are (men worked, and women generally stayed home).
  3. Scrutiny is so crucial in that if the court had applied the traditional rational basis scrutiny to this, that may have been a passable justification. But the court uses some level of heightened scrutiny.
  • The thing about sex that triggers this heightened scrutiny is that it is immutable and doesn’t really have any basis for difference in intelligence or anything.
  • Frontiero first time court really says look more carefully at gov’t sex discrimination.
  1. Hypo: Let’s suppose Florida enacts a statute that allows only adult women privately to possess uzis and similar kinds of firearms. Let’s stipulate further that the reason we’ll allow women to own these but not men is because there is a fair amount of evidence that men will use it for more illegitimate purposes than women. Let’s say there’s a statute and all we have at the time on the books is Frontiero. There would be a problem if you are a male trying to challenge that statute if we take the frontiero court at face value. Frontiero’s holding came out of the discrimination that women usually receive, but here is one that discriminates more against men.
  2. Craig v. Boren(1976): Allowing young women to drink stronger beer earlier than men.
    1. OK statute prohibits sale of nonintoxicating 3.2% beer to males under the age of 21 and to females under the age of 18. State’s rationale: statistics show that 0.18% of females and 2% of males in that age group are arrested for alcohol-related driving offenses.
    2. State’s position:
      1. Have info that men in this age group are more likely to abuse alcohol than women.
      2. It’s something “everyone knows.”
  • Court applies intermediate scrutiny: must serve important gov’t objective and be substantially related to achievement of that objective.
    1. Not fatal in fact like SS, but most of the time when applied, gov’t will lose.
  1. Held: Invalidated law. Important interest (preventing drunk driving) but not substantially related: easily have statute that is gender-neutral (no one can purchase until 21).
  2. Rationale: Simply not enough to prohibit access to nonintoxicating alcohol. State hasn’t shown that it can substantially achieve its objective w/gender neutral statute.
    1. If you’re trying to get at dangers of driving, restrictions on nonintoxicating alcohol doesn’t seem like it’ll do the trick.
    2. Stevens, concurring: Can’t visit the sins of the 2% difference on the other 98% of men.
    3. Like Feeney: also had statistical argument that failed. Larger lesson to extract: stats are somewhat malleable, can be invoked in the way you want it to. Under RB, would’ve worked.
  3. Although Rehnquist dissents in this case, he’s right in the respect that if one were to apply the rationality standard because its men rather than women, then the statute would pass because it is rational to make this inference, but it doesn’t pass under heightened scrutiny.
  • There’s also an almost philosophical objection that the court has here as well. At one-point Brennan makes reference to the normative philosophy of the EPC in which he says that the court won’t embark on allowing the state to discriminate on a group based on a statistical support that that group in the aggregate suffers from an effect. Even though it is rational for a government to think that, what you’re doing is discriminating against 98% of the men in that category because of 2%. In addition, we don’t want the government getting in the business of employing statistics to demonstrate that one group is somehow inferior to another group in some respects.
    1. EX: there are stats that certain races are more intelligent than others; is this something we really want to rely on to make our laws?
  • So, Craig establishes intermediary scrutiny for gender-based classifications.
  1. Mississippi University for Women v. Hogan (1982):Court holds that a state nursing school’s policy refusing to admit any males violated Equal Protection Clause.
    1. Reinforces principle of intermediate scrutiny across the board- doesn’t matter which gender is being disadvantaged.
    2. Nature of discrimination is not always clear (potentially discriminates against both genders)
      1. Men are excluded and are discriminated against, but even though on one level women seem to be getting preferential treatment, on another level it locks women into a traditional stereotype of women as nurses but not doctors
      2. So then this statute promotes or conveys the stereotype about gender-specific roles of heath care professions (women are nurses, OR men can’t be nurses)
  • Not hard to find inequality when there are nursing schools for women and no nursing schools for men.
  1. Court didn’t answer question if EP would be violated if were actually separate but equal because there was no other state school in Miss. For nursing, period.
  2. Anticipation of VMI case, US v Virginia
  3. U.S. v. Virginia(VMI Case): State-sponsored military school w/adversative method. Didn’t allow women to join. Instead of allowing women admission, created a parallel program at Mary Baldwin, but it was arguably inferior and didn’t feature adversative program b/c study group indicated it wouldn’t work for women.
    1. State’s justifications:
      1. #1 Valuable educ. benefits for single-sex educ.
        1. While different, relatively equal programs: still get citizen-soldier training.
      2. #2 Unique adversative method would have to be modified for women.
    2. Court’s response:
      1. “Parties who seek to defend gender-based government action must demonstrate an exceedingly persuasive justification for that action . . . The burden of justification is demanding, and it rests entirely on the State.”
      2. To #1: Skeptical of that argument—only doing this now that they are required to.
        1. Like Sweatt: Separate institutions for blacks were not in fact equal to counterpart institutions for: inequality in resources and intangibles.
        2. VMIL isn’t the same: less course offerings, students and faculty have different credentials, not the same network, no adversative method, degree worth less!
        3. SEPARATE BUT EQUAL will not be tolerated in gender-discrimination cases either
      3. To #2: Just as there are women who can’t handle it, there are men who can’t handle it. Women, who want that experience, should be allowed to try it. What’s true of most women doesn’t justify discrimination against all.
  • Stern: the court believes that diversity is good for educational growth, but what its decision boils down to is that they don’t believe Virginia.
  1. This is another instance of how pivotal the standard of scrutiny that the court chooses to apply is. It could be said that given how lenient the rational relationship is that this could pass it. But since this is using heightened scrutiny, the Court basically says that there is no indication that this is why they created the school. Virginia didn’t create the separate institute until there was some litigation and it was held that they couldn’t exclude women altogether. This kind of skepticism that you see where the court openly discredits the rationale of the government really is one of the fundamental distinctions between the rational basis analysis on the one hand and heightened scrutiny on the other. SO, THERE IS A SORT OF PROBING INTO THE ACTUAL MOTIVE OF THE LEGISLATURE. When the Court uses rational basis, on the other hand, the Court will almost always buy any post hoc reasoning.
  2. Unclear what level of scrutiny the court is applying. Scalia in dissent and Rehnquist in concurrence accuse majority of playing footsy with standard of scrutiny. Instead of just reciting the scrutiny standard we get from Craig, Court says things like “exceedingly persuasive” reason needed from gov’t and “state must show at least that the challenged classification serves important gov’tal objectives and that the discriminating means employed are “substantially related to the objectives” – going to a more stringent standard than intermediate scrutiny? Can’t take anything precise from this.
  3. But fair reading of VMI is that Court hasn’t pushed gender-based classifications all the way to strict scrutiny, but this is a version of intermediate scrutiny that is significantly more likely than not to invalidate gender-based classifications that are subject to it.
  • **Scalia’s dissent says that the majority is “lochnerizing” the EP clause; he charges the majority with inserting their own personal values and beliefs of gender into their reading of EP. He says this is really a policy question and the kind of issue that should be left to the democratic process, the legislature and not to the feelings of the Justices.

“Fundamental Rights” Under Equal Protection: Voting[edit]

    1. Rule: Here, we’re not talking about everyone having an absolute right to something, but rather that to the extent that the gov’t chooses to distribute a right or benefit at all, it has to do so on an evenhanded basis; can’t selectively distribute that right [voting will be premier fundamental right under EP]
      1. If it’s a fundamental right, the government can’t distribute that right unevenly; it couldn’t say “the only people who get to vote for the state treasurer, are the people with accounting degrees,” although some would understand the rationale.
      2. The gov’t has another option: one of the options that the state has is simply not to confer the right at all to anybody because there is equal equality. Zero people = zero EP problem.
  • Implicit in this is that the gov’t does not have to distribute that right to begin with
  1. And we know that EP doesn’t require perfect equality in every single instance à like we know that 8-year-olds can be denied the right to vote.
  2. Court would especially scrutinize issues with voting because it represents the basis of the rational relationship standard.
    1. For vast majority of statutes, Court will apply rational relationship standard because the premise behind that approach is that the legislature itself was elected on a fair basis/an equal right to vote. We think that people have had fair input already into a decision by the legislature through the democratic process and the ability to vote for your representative.
  3. But if that premise is called into doubt, and people have not been able to vote on an equal basis, then the Court will waive its normal deference to the work of legislature and instead apply more heightened scrutiny. From RR to SS. Court will scrutinize more closely those laws that impair political process – Carolene Products footnote.
  4. Two triggers of strict scrutiny':''''
    1. Suspect classifications
    2. Fundamental rights- voting is the premier fundamental right
      1. One thing in common between the two – there are very few of them
    3. Right to vote''''
      1. Gov’t cannot put restrictions on who can vote
        1. However, if gov’t decides to keep certain offices from being elective, that is acceptable
      2. Rule: Because policy should be “one man, one vote” (Warren’s opinion in Reynolds), “State needs to make honest and make good faith effort” to make equal population in each district as practicable as possible (divergences are acceptable if they are reasonable) (Reynolds)
  • Rule: there can’t be a majority vote to approve scheme w/ significant deviations f/ population equality - violates doctrine of “1-person, 1 vote” (Lucas), unless voting on a specific issue – then the majority doesn’t have to get its way on every single issue (Gordon)
  1. Why right to vote is the central fundamental right'under equal protection doctrine':
    1. Reynoldsv. Sims and Kramer– the presumption of validity that applies to most legislation is that the legislation has been enacted by a body that fairly and equally represents the citizens of that district
      1. However, if the challenge is that people are not permitted to vote on an equal basis, that calls into question that very premise
      2. Right out of 2nd paragraph of Carolene Productsfootnote – court will scrutinize more carefully when the nature of the challenge is that the democratic process has itself been impeded
    2. Reynolds v. Sims: Court holds that severely malapportioned legislature that has not been reapportioned in decades, 60 years, violates EPC.
      1. Threshold issue is justiciability – Baker v. Carr said the court can review questions of apportionment and configurations of state legislature. But Baker did not address what the standard would be.
        1. Court’s response to those who say they shouldn’t be answering this question is that a denial of constitutionally protected rights demands judicial protection
      2. Alabama argues that the apportionment scheme provides a true equality by considering special interests in geographical areas that will not receive adequate attention in legislative process if districts had been apportioned strictly by population.
      3. Rule: C.J. Warren’s majority opinion: “one man, one vote”
        1. If you have a malapportioned legislature, your vote counts more in sparsely populated district – fractional equivalent of a person stuffing a ballot box
        2. “The purpose of dividing citizens into different voting districts and prohibiting them from voting elsewhere is to ensure that an individual does not vote multiple times for elected representatives.” Just as this scenario is impermissible, a state legislative districting scheme that apportions the same number of representatives to unequal numbers of constituents is equally offensive to the Constitution!”
          1. The practical effect of overweighting and overvaluing the votes of citizens living in one district is the dilution and undervaluation of votes of those living in other districts.
        3. Senate doesn’t adhere to “1 man, 1 vote,” but this is embedded in the Constitution. Senate is sui generis – no other situation is comparable – compromise among sovereign entities (districts w/i states are not sovereign entities)
      4. Opinion on its face it does not seem to demand precise mathematical equality of population among districts
        1. Rule: “State needs to make honest and good faith effort” to make equal population in each district as practicable as possible but divergences are acceptable if they are reasonable
        2. However, a majority vote to sway from equally populated districts is not acceptable – the distribution must be a fairly strict mathematical equality
          1. Rule: Lucas v. Forty-Fifth General Assembly– a majority vote to approve a scheme with significant deviations from population equality violates doctrine of “one person, one vote” – Court rejects this. A citizen’s constitutional rights cannot be infringed simply because a majority of people choose that it be
          2. Reason: As the right to vote has been identified as a fundamental right, a majority cannot deprive an individual of that right. Voting is an individual, not group right
            1. Exception: Gordon v. Lance (1971)–Court upheld a WV law prohibiting political subdivisions from incurring bond indebtedness with the approval of 60% of the voters. This does decrease the value of the minority vote but allowed in some specific issues where there are “single-shot issues” at hand.
              1. Ct distinguishes this from malapportionment because there, you are going to have legislators that will vote on spectrum of issues and you can have reps of districts representing distinctly minority portion, affirmatively ramming through legislation, where with single shot referendum this isn’t giving anyone authority to enact legislation.
            2. See Brown v. Thompson: Court established that “as a general matter, an apportionment plan with a maximum population deviation of under 10% falls within the category of minor deviations” and need not be justified – kind of like an acceptable margin of error. Getting any higher than that could start to be problematic. But see Mahan v. Howell, where the court allowed a districting plan with a deviation of 16.4%, stating that “more flexibility was constitutionally permissible” with respect to state legislative apportionment.
          3. HYPO: Let’s just say that Florida enacts a statute that observes that many states / counties fund education in large part through the property tax. Let’s say the legislature doesn’t want them raising the property tax, even for education. Under this state constitutional amendment, no county may raise property taxes for local education unless a referendum gets 57% of the votes.
            1. What would be the argument from Reynolds that this violates the principle of one-person one vote?
              1. The problem is that if you are part of the 43% then your vote counts more compared to the votes of the majority.
              2. If you’re making the new majority level as 57%, then that’s deluding the power of the votes of these individuals – they’re no longer worth a vote on a 100% scale, but still using a 100% scale.
            2. Is the court likely to strike down this hypothetical amendment on this broad distinction? No. This doesn’t limit the right to vote and Gordon v. Lance says that it’s one thing to have a malapportioned legislature, but here (in the court’s eyes) what you’re dealing with is not a legislature that systematically enacts various programs, but this is a one shot issue.
            3. So, if you’re talking about something like increasing taxes, bond indebtedness, etc and it’s a single issue, the Court will tolerate at least some deviation from straight majority rule.
  • 'Denying the right to vote for particular offices or entities''''
    1. Rule: the level of scrutiny Court applies to a law restricting vote for an office depends on the range or breadth of that office, not its importance (see Salyer Land Co., below) – strict scrutinyfor broad authority, rational relationshipfor narrow authority. Kramer gets higher SS, Salyer gets less scrutiny, less breadth of office.
    2. Kramer v. Union Free School Dist.:Court strikes down NY law that only allows two classes of people that can vote for the school board: (1) owners/lessors of property in that school district, or (2) parents of children attending school in that district. The state wanted to limit the voting to those “primarily involved” or invested in the school board. Outcome hinges on what kind of scrutiny is applied.
    3. Key to case: Strict scrutinyapplied
      1. Classification has to be necessary to achieve a compelling state interest.
      2. Fatal prong is the first part (court does not usually weigh the level of interest, but rather strikes down on how closely related the classification is to whatever the interest is)
      3. Here, Court is willing to assume NY has a compelling interest but says that the statute is not closely tailored enough – under & overinclusive.
        1. Loose fit at best between the classification and state’s purpose. May be generally true that those who own/lease property and have kids in public school may be more interested in the school district, but gross over generalization and may have people who are good citizens, interested in public welfare and who care deeply such as senior citizens and others living with children or relatives; clergy; military; parents who don’t own property; or those parents whose children attend private schools; so law is underinclusive
      4. The State could in some circumstances limit the exercise of voting to those “primarily interested” or affected by the voting, as long as the law is narrowly tailored to the goal!
    4. Court won’t always apply SS to every gov’t entity that distributes vote on unequal basis. Age requirements, citizenship requirements, etc. will only receive rational basis review.
  • Salyer Land Co.: Law restricts votes in water storage district elections to those who own land w/in district and further, the votes of landowners is restricted by how much land you own; it’s worth (very much like corporations and how vote for board of directors). Here with have a limited purpose government unit!
    1. Court applies rational relationshipstandard – sustains this scheme; water district director has narrow range of functions
    2. Rule: When dealing with a gov’t entity performing narrow functions, we only ask if there is some kind of rational nexus between the function that the body performs and the limitation placed on voting
      1. Upholds the limitation here – finds rational nexus b/c landowners are the ones mainly affected by the board’s decisions, and how much you are affected hinges largely on how much land you have
    3. Compare to Kramer: Because the school board in Kramer had a more expansive function! The board here, had a very limited function – just deals with water.
    4. Court—we don’t look to the importance of the authority of the gov’t body being exercised but really the breadth of the authority being exercised... here, the range of authority is narrow—it doesn’t do a lot of things
  1. Rule of Thumb: The wider the authority, the more strictly the court will enforce 1 man=1 vote. The narrower, the more lenient and the more likely you’ll get RR.

Confinement of “Fundamental Rights”[edit]

    1. Rule: Plaintiffs need to have the classification at issue deemed to constitute a fundamental right, otherwise they will get relegated to the rational relationshipstandard and they will lose
      1. Note: educationis not a fundamental right
    2. Dandridge v. Williams: State welfare policy imposed a ceiling on the amount of welfare benefits that any particular family could receive. The equality claim is that each person is getting a different amount of money depending on the size of the family --- so in smaller family, each child will receive a larger cut of the $250 monthly limit. The issue was that children in larger families received less per person than children in smaller families.
      1. Held: Valid law.
      2. Rationale: Since legislation is based on social economic welfare, applying Rational basis review. It’s rational here for MD to think that this formula would strike reasonable balance between various gov’t levels.
        1. "In the area of economics and social welfare, a State does not violate the EP clause merely because the classifications made by its laws are imperfect"
        2. If the classification has some reasonable basis, it does not offend the Constitution. It is rationally related to a state interest
  • The Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all.
  1. This along with Rodriguez emphasizes the Court’s unwillingness to interfere with government decisions about the allocation of resources. There’s also a common strategy with plaintiffs:
    1. In both cases, a certain group of relatively poor people are claiming that the state has granted them an unequal amount of a fundamental right.
    2. If plaintiffs in these cases cannot persuade what’s implicated is a fundamental right or a suspect/quasi-suspect classification, the default is RR, where Ps are going to likely lose.
  2. DISSENT
    1. Disagreed that rational basis review was strict enough
      1. "When a benefit is necessary to sustain life, stricter constitutional standards, both procedural and substantive, are applied to the deprivation of that benefit"
      2. Thinks concentration should be placed on the character of the classification in question, the relative importance to individuals in the class discriminated against of the government benefits that they don’t receive, and the asserted state interests in support of the classification"
      3. Poor families without breadwinners - is far removed from the area of business regulation –
    2. Since Dandridge, the Court has generally adhered to the view that rational basis review is the appropriate standard for the evaluation of welfare classifications

Discrimination Against Non-Suspect Groups[edit]

    1. When plaintiffs actually win under rational relationship test (Court purports to apply rational relationship, but still strikes down state action in question)
    2. RB=automatic uphold most of the time, or 99/100 times, at least in the 1/100 where the Court says they’re applying RB. But w/certain laws, looks like it’s applying heightened scrutiny.
    3. City of Cleburne v. Cleburne Living Center (developmentally disabled get rational basis)
      1. This was a rare case where the court applies rational basis but invalidates the law in question.
      2. In a district where things like nursing homes were allowed as of right, a home for the mentally retarded had to get a special exemption. The city denied the CLC such an exemption.
  • Held: Fails RR—no legitimate government interest.
  1. Rationale: First developmentally disabled get rational basis scrutiny because there is good reason to treat them differently (because of their handicap). Unlike race (where people are the same) or gender (where they are almost the same except for a couple of things) developmentally disabled are tremendously different and require extra treatment. That there is legislation that is helpful to the developmentally disabled is that you can’t fairly classify society’s views of the developmentally disabled as unmitigated hostility. The other thing about developmentally disabilities as a trait (as opposed to segregation by race, gender, etc.) is that they need to be treated in a special manner as is in the case of special education. There are good ways to treat them specially and to make accommodations for them. So the Court will not treat developmentally disabled as a suspect classification. The test that the court will use for this is not even intermediate scrutiny but the normal rational basis test. The question is whether this classification between developmentally disabled and others rationally related to some kind of valid governmental interest.
  2. Court presumes no legit interest b/c it was done out of animus or prejudice, which is never legit. City claims there’s problem w/locating it here (e.g., floodplain), but underinclusive--no prohibition on building here for nursing homes, etc.
    1. Court does seem concerned w/this group: seems wrong b/c it internalizes and perpetuates a stereotype. At some level, may have realized that if we allow community to bar this home, we’re permitting community to act based on stereotypes.
  3. Three opinions, but not one takes most obvious ground for invalidating: finding that the mentally disabled are quasi-suspect class requiring intermediate. Why not?
    1. Not politically powerless group—they have the ADA.
    2. There might be legitimate reasons to distinguish—differing abilities.
  • Marshall, concurring in judgment: Right result but can’t say w/straight face this is RR. Instead of trying to keep only 2 or 3 tiers, infinite tiers.
    1. Consider: importance of interest being affected, character of classification (benign or invidious?), and then government’s interest (nature and weight)
    2. Add up the 3 and then consider what level of scrutiny is needed.
    3. Justice Marshall said in his concurrence that this is not the sort of rational relationship standard that we normally associate with that term. Basically, what Marshall is saying here is that he’s attacking the courts framework for Equal Protection. He says it shouldn’t work that way and what we ought to do is examine some key features of each classification. He would take into effect the importance of the interest being affected by the classification and then the invidiousness of the classification. Cleberne was an easy case for Marshall because invidiousness is an easy place to draw the line.
  • Stevens, concurring: Doesn’t subscribe to 2-tiers. Should be just one EP clause and one inquiry each time: is classification rationally related to legit gov’t interest? Different outcomes based on facts before the court.
  1. Practical significance:
    1. Can cite it as case that possibly raises proposition that RR standard can have some teeth and can invalidate legislation.
    2. 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.
  2. Romer v. Evans (Gay and lesbian)
    1. 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.
    2. Similar to Cleburne:
      1. Court striking down law that’s aimed at historically unpopular group.
      2. Doctrinal commonality: says they’re applying RR, but appear to scrutinize closely
  • Held: Strikes down law. Says law is singling out LGBT for disfavored legal status.
  1. Rationale:
    1. Court didn’t deem that to be a suspect or quasi-suspect class
    2. In this context, there is at least formal agreement between the majority and the dissenters as to whether the Amendment 2 classification is rationally related to a government interest. They agree that this is the framework, but the answer is different. Then it will hinge largely on what you perceive as the goal / purpose of that classification. Scalia in his dissent sees the purpose of this Amendment as innocent and the real issue is whether Colorado is entitled to decline to bestow “special treatment or preferences” on homosexuals. He viewed this as a modest measure. If you clarify Amendment 2 the way Scalia does, then it doesn’t violate Equal Protection.
    3. The majority sees this in a different way and views this as affirmatively putting gays at a disadvantage and thus discriminatory. The Court said that Amendment 2 singles out gays for discriminatory treatment. What fundamentally troubles the court about this provision is that Colorado has inserted into its basic law a political obstacle that other groups don’t have to face. On page 669, the court says that a law declaring…. The Court said that they will scrutinize closely those things that make the political process less available to some rather than others (Carolene footnote).
    4. Main Reason: Essential to argument: this amdt denies them equal access to political system. Strong Carolene Products fn. 4 overtones: concerned w/impairment or distortion of political process. “Law that makes more difficult for one group of citizens than for all others to seek aid from gov’t is itself a denial of EP in most literal sense.”
    5. Secondary Reason: Applying “RR”:
      1. State alleges that the interest was to appease ppl like LLs and employers who for whatever reason are opposed to LGBT. Antidiscrim laws would force them to hire/house them.
      2. Court’s response: Should be more narrowly tailored if this is what you want: this is much more sweeping.
      3. Court thinks this is really about animus.
    6. Scalia, dissent:
      1. To him, majority is asking whether CO can simply decline to confer special treatment to LGBT.
      2. This is a modest measure that doesn’t do very much.
      3. Thinks LGBT already has political clout. Just another interest group.
      4. He makes the broader argument that this is not a quasi-suspect classification then we should be applying a rational basis standard and they should be subject to the same things as would affect dairy farmers, insurance companies, etc. He says that this is a group that can take care of themselves in the political process.
    7. When you have situation where Court suspects real reason is hostility, but it doesn’t want to elevate that classification to S/QS, it’s going to invoke RR standard but apply it in somewhat disingenuous way. At a minimum the Court is applying RB w/more scrutiny than usual. (remember: RB typically means 99/100, we’ll buy gov’t argument if it doesn’t make us laugh)
  • On one hand the majority had a lot like the view of Lawrence v. Texas. This aligned the court’s approach in the field of equal protection and substantive due process and it makes it more logical to characterize Amendment 2 as one which the court will strike down even under rational basis because it is hostile to a particular group.
  1. Obergefell v. Hodges (2015)
    1. Federalism is the big argument against this decision: the court could not deny the states the ability to deny or categorize marriage as they see fit
    2. This case asked the broader question as to whether states may deny same sex marriage under the 14th amendment
      1. STATES MAY NOT WITHHOLD RECOGNITION OF MARRIAGE TO SAME SEX UNIONS
      2. We have a right to marry that is in the majority's eyes, an extension of the rights of autonomy and the rights of association -- Myer and Pierce -- began the line of cases where the court recognizes such substantive rights such as right of procreation, right to not procreate, etc.
      3. The right to marry is another one of these rights - Stern says this makes sense
        1. Loving v. Virginia -- referred to a right to marry though had not squarely recognized in way as it is being recognized here
        2. When the court referred to a right to marry, weren't they assuming that what we were dealing with was heterosexual couples? -- yes that's true, but what we are questioning today was whether that reasoning applied to same sex couples
        3. These reasons largely revolve around the central role that marriage plays in peoples' lives and society -- similar to so many other rights like the right of child rearing
  • Treating Others as Inferior: Stern thinks it goes back to Brown v. Board -- as to what the actual rationale is for the holding in Brown v. Board
    1. On its face B v. B seems to be saying something very specific: state mandated segregation in public schools could be shown to affect the education of school children. And over time, this embodies a premise of black inferiority; the state was broadcasting the statement that blacks were second class beings and officially branding them as inferior
    2. What he thinks is similar HERE, is how the court expresses the exclusion of same sex couples from marriage has the effect of teaching that gays and lesbians are lesser people and imposes a stigma and injury on those couple
      1. “This denial of same sex marriage, demeans these couples and it demeans their children"
    3. Most of this decision falls under due process. So how does EP figure into this?
      1. Page 77 Roberts made some good points - the connection
      2. The liberty that is derived from the DP clause and the equality that is derived from the EP clause can be complimentary àthey almost go together as we come to understand that certain institutional inequalities are unacceptable, we also come to see that they aren’t afforded the same rights
      3. We can better grasp that inequality is founded on unequal enjoyment of rights
      4. Court is saying well you can invalidate this law and this refusal to marry same sex unions as both a violation of DP and EP OR you can even read this discussion as the court suggesting that what we have going on here is a kind of synergy such that we saw in the realm of free exercise
        1. EP or DP alone don’t get you to this type of outcome alone, but combining them does (equality and liberty at play here)
        2. "This interrelation of the two principles furthers our understanding of what freedom is and must become"
        3. COMPARE TO THE YODER CASE. Not just Free Exercise and not just Due Process but that neither alone would invalidate the compulsory school prayer law BUT WERE RATHER WORKING TOGETHER AS A HYBRID, that gave the two rights operating together that force that they wouldn’t have had otherwise.
      5. DISSENT (ROBERTS) What we have here is attention that we can trace back to the start
        1. There are two dynamics going on
          1. On the one hand the supreme court is a counter-majoritarian institution in a majoritarian democracy and so the court ought to defer to the outcome of the political process (dissent)
          2. On the other hand, we also know that the Carlene products footnote embodies another important duty to safeguard those individual rights and liberties that are protected in the bill of rights (majority)
        2. Dissent: sees this as 5 lawyers who are imposing their opinions on society where this had been a very robust political process. All of the dissents sound the kind of theme that we recently saw Scalia use in the VMI case
          1. 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
        3. 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[edit]

    1. 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
      1. The example where a guy poured beer on his friend to keep him from talking about Peyton Manning, thereby restricting his speech and that would be allowed
      2. Hypo
        1. Lets so that you are having lunch with Rachel and it’s a hot day in the summer. The two of you launch into a lively conversation about movies. So you make this innocuous comment about how great the King’s Speech was. Rachel responds that this isn’t true and the Social Network was the better movie. Lets say that you then poor your iced tea on Rachel’s lap. Then suppose that Rachel brings a suit against you and brings a suit under the First Amendment since your action was in response to her speech and that you “chilled” her speech.
        2. She’s not going to win on this because I am a private individual and not a state actor.
      3. Generally
        1. The doctrine of state action is pretty straightforward. The reason we have a problem with state action is because there are certain circumstances where actions that are ostensibly or formally those of private parties in fact implicate or constitute the actions of the government such that the constraints of the constitution against government action do apply.
        2. Violations of the constitutional guarantee of freedom of speech, etc., cannot be made by private action—the guarantee only applies to actions by the state.
  • Limited set of circumstances in principle in which you have situation where at least ostensibly the conduct complained of is the action of a private party but for some reason or another, the Court has decided that the state and constitutional guarantees are implicated.
  1. Difficult area of the law that’s controversial among scholars.
  2. Rise and Expansion of Doctrine: White Primary Cases
    1. Involved exclusion of blacks from democratic primaries in TX. At that time, if you gained party nomination, you’d probably win.
    2. Nixon v. Herndon: 14th Amendment violated when blacks denied ballots in the state Democratic Party primary pursuant to a Texas statute.
  • Nixon v. Condon: Denial of vote to blacks was unconstitutional.
  1. Grovey v. Townsend: Racial exclusion from party convention w/o statutory authorization. There was no state action and no constitutional violation. (Overruled by Smith)
  2. Smith v. Allright (public function doctrine): Challenge to whites-only primary under 15th amdt (prohibits state restrictions on voting based on race). Raised legal problem b/c technically it was not a violation of EP clause b/c Democratic Party was formally private association.
    1. Facts: This was a case in which there was a pretty straightforward exclusion of blacks from voting in primaries. A challenge brought under the 15th Amendment which prohibits racial discrimination in voting. Technically, the Democratic Party is a private organization, so they say that this isn’t state action at all. They say that their exclusion of African Americans is the same as the pouring of iced tea described above.
    2. Holding: This turns out to be a losing argument. This is a private party but there are reasons to put Constitutional constraints. They came up with what has later been known as the public function doctrine.
      1. In this context what that means is that we know that the Democratic Party is a private organization, but in this setting the Democratic Party is working in the capacity of the government. So, in this instance it didn’t matter who was actually performing the function, regardless we’re going to treat this as the action of the government since it is inherently a state / government function. So, the Democratic Party is an integral part of the electoral process so we’re going to treat them the same way we would treat Texas.
    3. The Court went on to mention an entirely separate rationale which is that not only will we use the public function doctrine, but on top of that there is direct implication of Texas itself. Here there is an entire statutory apparatus. Here Texas has control over the electoral system. So, the court focuses on what the state itself was doing. This is the governmental involvement rationale and the court hones in on what the court is doing to see if the state is taking a part in this and enforcing the discrimination. Thus, Texas is putting their seal of approval on the actions of the Democratic Party.
    4. Public Function - So we look to see whether there is a private party that is functioning as a state would typically act but here it is done by a private party. This disallows states from outsourcing this stuff.
    5. 'State Involvement''''
      1. The state has involved itself so much in the infringement of a constitutional norm that we’ll find a violation.
      2. Forecasts PF doctrine.
        1. Democratic party here is acting in capacity of the gov’t. Fixing the qualifications of voters is inherently a function or power that is exercised by the state.
        2. Forecasts SI doctrine.
  • Focuses on statutory apparatus: TX’s role in this. Was it really being passive?
  1. Characterizes TX’s action as endorsing, adopting, and enforcing the democratic party’s exclusion of blacks.
  2. Two Principles of State Action
    1. Public Function Doctrine: look at private party: when private party takes on gov’t function
    2. Public Involvement Doctrine: look at state: when state in some way endorses, adopts, and enforces a private party’s action.
  • Marsh v. Alabama (Company Town) (Compare to PruneYard): Town of Chickasaw itself owned by company. Rule in town prohibits passing out of pamphlets. Jehovah’s witnesses are prohibited from passing out religious literature.
    1. Held: Even though private enterprise, the town has taken on the function of the state. Running a town is inherently a government/public function.
    2. Rationale: Embodies running a town, operating a municipality—inherently a function performed by the gov’t. If you, private entity, are operating a town or city that has all indicia of a normal town or city, constitutional guarantees and 1A in particular are going to apply to your conduct. If you restrict speech you are not only violating the norm of freedom of speech, you’re impinging on clause itself.
      1. Malls: But it doesn’t mean that πs are going to win based on case. There is actually holding in Hudgens where Court ultimately holds that a mall, operating a private mall -expansive mall (as in hypo)- is not going to be deemed as functional equivalent of downtown business district in Marsh. A mall is not the equivalent for state action purposes of owning a town. So, since action of owning a state mall is private, constitution will not apply.
  • Burton v. Wilmington Parking Authority: Restaurant tenant leased from gov’t authority, parking authority. Burton excluded from coffee shop because he is black. On the surface it seems like Eagle Coffee Shoppe can get away with this, and generally they would be able to discriminate
    1. Held: This is a State action. Have close, intimate commercial relationship between state in form of the parking authority and the coffee shop. When a state leases public property to a private entity and forms a relationship of interdependence with that entity, the private lessee must comply with the 14A’s prohibition of discriminatory conduct.
    2. Rationale: This is public land, dedicated to public use.
      1. Not just that it’s lessor-lessee relationship between the state and the discriminating shop. Not just that it’s a public bldg, on public land, and state defrayed cost of construction. There’s a mutually beneficial and symbiotic relationship here. What the court ultimately finds here is that these two parties (the parking authority (obviously a state entity) and the coffee shop (a private entity)) are intertwined and interdependent. The parking garage benefits because they get more people parking there. The coffee shop gets the ability to have more customers park.
      2. In the absence of the courts finding to this effect, we would not have had a violation of the EPC. If it is not the conduct of government that it is in question here, then the constitution will not apply. So, the court is saying that the parking facility is allowing / enabling this discrimination to occur. Therefore, Delaware is directly implicated in this discrimination.
        1. State gets rent from coffee shop; more patrons shop gets, the more the parking authority gets in revenue.
        2. Conversely, parking gets patrons to the shop.
  • But none of that is decisive—totality reveals joint participation by the state w/coffee shop in racial discrimination.
  1. Note the different from Chickasaw where the corp. is acting like the state, but here, there is an actual state actor acting participating so there is a link from the private entity to the state through the state actor (PT)
  2. As w/Marsh, Court in recent decades has not read an expansive interpretation of Burton. Clearly, not the case that every time there’s lessor-lessee relationship between gov’t and private entity, that private entity’s actions infringing on constitutional norm is going to be automatically ascribed to gov’t.
  3. The Burton case remains good law in the sense that it has not been overruled but don’t expect to see going forward this doctrine apply frequently or expansively.
  4. Shelley v. Kraemer':' Restrictive covenants prohibited home ownership in neighborhood by blacks. Someone sold their home to a black family. HOA sought them specific enforcement of the K. Went to court to enforce restrictive covenant, and MO Sup. Ct. upheld restrictive covenant. (**Restrictive covenants are privately implemented restrictions on contracts.**)
    1. Held: State action b/c enforcement of covenant by court = state action.
      1. Not to be construed too broadly.
    2. What’s at issue here: the fact that the state discourages restraints on alienability of land but is making a single exception here in discriminatory manner.
      1. So, when a state enforces this kind of rule / agreement, it is unambiguous state action by having the state machinery / power behind this restriction. So, you have this “but for” causation in that but for the state’s action they could have moved into their homes.
    3. This is a doctrine that if taken literally has very far-reaching implications and would suggest that whenever you have a private agreement and one of the parties violates the agreement and the state enforces it that you have state action. That is definitely not true.
      1. Here the court is upholding her conviction in a discriminatory matter. We would expect the state to say, we don’t have a position here, so the court could say we aren't enforcing discrimination but rather, we are enforcing our general/neutral trespass laws. So, if they don’t address the constitutional issue, the courts can rule on this without making this state action. Can't Missouri say, “Well, we're just enforcing our general law of contract, we don’t care what the general terms of the contract are, as long as you have offer, consideration, etc. this is a neutral policy.”
        1. Well on the surface, this is credible, but it's not really a credible because we know that Missouri was not enforcing all restrictive covenants at this time -- AND Missouri also had a law that said nothing can stop you from selling your land -- so basically MI would have to say, that oh we generally don’t enforce restrictive covenants unless it involves a black person -- so here they would be violating EP so this is a more rare circumstance. Missouri couldn’t claim something that they don’t usually do. Since they never enforce covenants they can't not enforce them and then suddenly enforce them when there is a racial issue
      2. Cf. w/Camille sneaking into all-men country club. State has powerful argument: policy of the state is against trespass—we don’t care why you’re trespassing. It just so happens that enforcement by the court here encourages the private entity’s policy of gender discrimination.
        1. Because of special circumstances in Shelley, unlikely it can be extended to Tessa’s scenario. Trespass in FL isn’t conscious gender discriminatory policy.
      3. Another general comment about Shelley v. Kraemer
        1. Neither Burton nor Shelley have blossomed into some kind of general robust doctrine of state action, particularly state involvement/encouragement. It’s not a coincidence that both of those cases involved racial discrimination and the court seems to be more willing to find state action when racial discrimination is involved since this is a particularly ugly sin and antidiscrimination is a core principle of the EPC.
        2. As a formal matter, the question of whether state action is involved and whether that state action violates the constitution are supposed to be separate issues. In theory the court could find that there is state action, but it doesn’t violate the constitution. But Stern thinks the court tends to try to have it both ways. The court peeks at the merits when determining whether there is state action or not and in Burton + Shelley the merits showed that there was a gross violation of the EPC and this influenced the courts determination as to whether there was a violation in the first place.
        3. When you have what appears to be a less flagrant violation of a constitutional value /norm, the court is less likely to find state action in the conduct of a private individual in the first place.
      4. Contraction of Doctrine
        1. Since the 70s the whole notion of state action has really undergone a severe contraction. Court is highly reluctant to find state action except in most obvious cases (e.g., running a city) or where state has explicit overt policy of advancing policy that infringes on constitutional norm.
        2. Hudgens: exemplary of state action doctrine in general and public function doctrine—Court didn’t overrule Marsh but said its rationale didn’t apply to large shopping mall.
  • Terry v. Adams: Exclusion of blacks from “pre-primaries” held by the Jaybird Democratic Association. They are not actually a political party and their election is not regulated by the state. But their recommendations are highly abided by and they never lost
    1. Holding: Exclusion of blacks violated the 15th Amendment
    2. Reasoning: States failure to prevent conduct that disenfranchises blacks. Jaybirds have a lot of power and this has become a perfunctory ratifier of the choice.
  1. Jackson v. Metropolitan Edison Co.: Jackson also argues that state is tied up in her electricity being cut off. Metro notified Jackson that the power would be shut off but did not provide a hearing. The argument here is that due process required a hearing. There is no question whatsoever that due process would require a hearing IF due process applied but the obstacle here is that it’s quite questionable that it does apply. If it were the city itself or the state itself cutting off the power w/o a hearing, there is no question that she would be entitled to a hearing. But because Metro is a private entity, not the gov’t, she has an uphill battle of showing that due process should apply.
    1. Focuses on extensive contacts between the state and Metro: has to submit general tariff to the state; extensive regulation of Metro by state. Argues that it’s like entanglement state had w/Eagle Coffee Shop in Burton.
    2. Held: Also loses under state involvement.
    3. Public Function Doctrine: “has to be traditionally, exclusively reserved for the State”
      1. Argued that providing electricity is to perform a public function. At one level, if you ask the average person on the street if providing electricity is a public function, a person would say sure! As Justice Marshall said in his dissent, this is a public function for the state in that we expect the state to ensure that electricity will be provided, the state won’t just stand by and hope that electricity will be provided.
      2. Here’s where the notion of public function as a term of art comes into play. The court said it was not a public function. A lot of private companies (and not the state) provide electricity. It’s not enough that states OFTEN provide a particular function because this is not EXCLUSIVE. This qualifier of exclusivity is very important for the notion of public function. If this is the case, then it is not in the court’s definition a public function in the state action sense.
      3. In Rendell-Baker, there was the question whether education is a public function. The Court said no, there are plenty of private schools and thus education is not EXCLUSIVE to the state.
    4. State Encouragement Doctrine: Distinction between encouraging the action and passively sitting on the sidelines/allowing or acquiescing in the conduct.
      1. This argument was that it ought to be a violation of due process because Pennsylvania was sufficiently involved with Metro.
      2. Penn has really done a lot to enable the effective monopoly that Metro has in electricity. Penn has also passed extensive regulation on Metro and closely supervises it. So, in effect there is the idea that there is a relationship of interdependency between the state of Penn and Metro to trigger the doctrine. Trying to argue that this is the same type of relationship as in Burton.
      3. The Court rejected this argument. They drew a line between activity that is encouraged by the state and that which is tolerated by the state, with the state merely acquiescing in the private conduct. If there was encouragement, then it would trigger state action. But this is not a case where Penn is egging Metro on to cut off P’s electricity. Letting stuff happen like this is not equivalent to the state’s active involvement / participation in that activity.
      4. State involvement doctrine is exceedingly narrow.
        1. Not going to be extended much past Burton, where there was racial discrim.
      5. Doesn’t suffice that private entity has general, interlocking relationship with the state.
      6. What you need to have: instance where the state is basically actively encouraging specific behavior by the private entity that infringes on a constitutional norm.
        1. In this case: State is telling not Metro to cut off electricity.
        2. Mere acquiescence by the state doesn’t cut it.
      7. NS suspects that if this were electricity being cut off b/c of race, we would have had a different outcome. It’s hard to say that the Court is not influenced by how egregious the violation of a constitutional norm is.
      8. NS strongly believes that if Metro had had policy of cutting off electricity on basis of race and it had explicit provision in general tariff that had then been signed off on by the state, Court would’ve found it so egregious violation of EP it would’ve found state action.
    5. Deshaney v. Winnebago Co. Dept. of Social Services: Father beat his son. Social workers come out to house before ultimate beating took place and did nothing to stop abuse. P attempts to argue that the state effectively permitted the abuse to continue; lots of warning signs that should’ve caused them to intervene.
      1. Held: No state action involved here.
        1. Under the second prong of the state action doctrine, the question is whether we can identify specific state actions that are somehow visible in the violation of some constitutional norm / value by a private actor. If you can’t find that, then the overwhelming presumption is that the state was not involved.
          1. Here there was poor Joshua who was beaten senseless by his father. A suit was brought for the violation of due process. Here we have to make the same distinction that we made earlier with the violation of a constitutional norm on one hand and a violation of the constitution itself (requires state involvement).
        2. In this case there is no doubt that many constitutional norms were violated egregiously. But here the father engaged in this reprehensible conduct and the county just kind of sat on their hands. What’s being complained about here is that the social workers did nothing. This is a complaint about state non-action rather than state action.The fact that there was literally no state action in this case meant in the courts eyes that you couldn’t bring a constitutional challenge because the state was not involved.
        3. One of the concerns / considerations of the court is that the court feels that state action can be applied on situations like this, then everything is going to be constitutionalized and any kind of encroachment will trigger the whole array of constitutional protections. So, either conduct of private individuals is state action and has to comply w/ what the gov’t would have to or there is no state action at all and the private party can basically do what they want. It seems that it is either black or white and not much in between.
      2. In a situation like Metro or Deshaney, it’s not the case that the state has done nothing. Clearly, they have done things (in Metro the state signed off on the general tariff / policy and in Deshaney the social workers were involved). Rather than deny the existence of state action, the more nuanced approach would be to look at what the state has done and then determine whether that action violates the constitution. In these kinds of cases you could take as a significant factor that it is a private party taking the leading role. In Metro, Penn was involved but in a peripheral role. So, there was state action (this is Stern’s view) but the role that Penn took was a subsidiary role and we want to respect the private sector of this country.
        1. Therefore, this would create a balancing test instead of something so cut and dry: there is state action or there is not.
  • Flagg Brothers v. Brooks: Brooks has stored goods in warehouse. She became delinquent on account for storage. Operator of warehouse intends to sell off the goods to pay off the debt. [Background to this case was the trilogy of cases that involved instances where we had employees whose wages were garnished, or property was repossessed because they were debtors. All of those cases involved some sort of state actor – the debt collection was judicially enforced, or the sheriff issued the writ, etc. Here, we don’t have a blatant state actor like that. Clearest case we have of extremely reluctant approach Court hesistant to find a state action in the conduct of private entities.]
    1. 'Public Function Claim:'
      1. Warehouse owner is exercising the kind of power traditionally associated with the state: transferring title of goods; collecting of debt
      2. Metro Rule requires that it be function exclusively reserved for state.
      3. Court characterizes the function of the warehouse owner as settling debts—something that is traditionally handled privately; self-help.
        1. Emphasizes the malleability of this category:
          1. How the court characterizes the function makes the essential difference as to whether PF will apply or not.
          2. If court is disinclined to find state action, it will elect to call it a wide category that encompasses actions by both gov’t and private entities (here, instead of saying it’s title transfer, says it’s settlement of creditor-debtor disputes).
        2. 'State Involvement Claim:'
          1. Argues state involvement through the enactment of the UCC. Through this enactment of statute, the State has allowed or guided the private actor in how to act in these situations, meaning NY has officially approved of the conduct of Flagg Brothers taking and selling this property.
            1. Court: This isn’t encouragement to sell the goods, at least in the state action sense, under the narrow definition of state involvement.
          2. Rationale: Fundamental distinction between active encouragement of private activity that could qualify and mere toleration/acquiescence in private activity.
            1. Applying here: All the state did was announce that if warehousemen sell goods of debtor under these circumstances, NY isn’t going to interfere. There’s no state official or state actor on scene assisting FB in sale.
            2. Like Metro: PA didn’t help them cut off electricity, just said they could do it. Like Deshaney: Complaining about state inaction, which is the opposite of state action.
          3. Why does this Court take its position in face of Stevens’ dissent?
            1. What Rehnquist worried about: floodgates.
            2. If we’re going to adopt position that every time the state announces it’s going to permit private activity, we’re going to have state action that’s going to be subjected to constitutional analysis. You’re in effect constitutionalizing all private interactions.
          4. Dissent by Stevens:
            1. More fundamental criticism: doesn’t like how the Majority/Court goes about determining whether state involvement has occurred. We shouldn’t be searching for a particular individual state official to link the private actor’s behavior to the State.
            2. We should look at what state has done in defining and controlling the private action.
            3. In this context, we should examine what the state has done in defining and controlling the debtor/creditor relationship.
              1. Enacted a statute=state action.
              2. Statute empowers one private party to sell off goods of another private party. (Condoning theft in a way.)
            4. Doesn’t buy into the floodgates problem: suggests that the fact that we at least acknowledge state action has occurred when it enacts a statute does not mean we’re going to find a constitutional violation. But it’s silly to say there’s no state action—here there obviously is it’s just getting past that threshold question to determine whether a violation has occurred.