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126 Cards in this Set
- Front
- Back
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Calder & social contract theory
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Ex post facto laws are only for criminal provisions. Natural rights theory: we give up some of our rights to enter society.
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Marbury v. Madison
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Court has authority to overturn acts of legislature. Power of court established in abstract sense.
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Constitutional right to property
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Comes from Fletcher, GA legislature kicked legislature out of office and wanted to take property away from people if it was from a grant from that legislature. Combines different portion of Constitution to come up with this right (bill of attainder, ex post facto, contract clause).
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Privileges and Immunities
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P&I applies to citizens of the US, not citizens of the states. Right to come to seat of government, right to use seaports and harbors, right to bring claim against government.
Slaughterhouse cases: US court is not going to be guardians of rights of states, that is a state power. |
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Lochner
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First attempts to make a textual substantive DP right--uses DP clause in 14th amendment. Limiting bakers number of hours that they can work deprives them of liberty under DP clause. Lochner is a bad case because they are relying on 14th A & taking away the right of the government to be involved in employment. Courts do not rely on this case anymore.
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Parents' role in education
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Meyer, Pierce: parents have a right to choose upbringing of children. There can be requirements that children go to school and schools can be evaluated, can't tell them it has to be public school, etc.
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Right to privacy generally
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Prenumbral right, comes from 5th, 3rd, 4th & 1st Amendments. Part of other rights that are not enumerated that are retained by the people, a recognition of natural rights. Have to meet SS.
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Contraception
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Griswold: Establishes right to privacy, Right to make decisions for married couples.
Eisenstaedt: extends right to individual, not just married couples. Carey: recognizes this right for minors, but can still have some limits like statutory rape |
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Abortion: Roe
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Establishes not an absolute right to abortion, but the right to make the decision.
The government has compelling interests: preventing sex outside marriage, protecting prenatal life, hazardous medical procedures. This interest in protecting health becomes compelling at first trimester (can have regulation then). The interest in protecting personhood becomes compelling at viability. |
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Capable of repetition yet evading review exception
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Gives a pregnant woman standing in abortion cases because otherwise they would only have standing in the 9 month period.
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Strict Scrutiny
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Compelling interest to which the government interest is necessary (or narrowly tailored). Government has the burden of proof.
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Trimester Issue: Roe
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Does state's compelling interest in personhood move up if viability moves up with science, technology?
Second trimester is what they knew then. Even if maternal health for abortions got better and you could have an abortion safely very late the state's interest is still compelling for PERSONHOOD so this wins. Trimester framework is not essential. |
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States paying for abortion (Maher, Harris)
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Abortion is a positive obligation. Gov't can't interfere with your right, but they are not required to provide the funding for it. Not even for medically necessary abortions (Harris) or for indigent people (Maher).
Public policy argument: do we want to pay for abortion or pay for the child on welfare? |
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Parental consent for abortion (Hodgson)
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Not going to require two parents, but you can require parental consent of one parent if there is a judicial bypass. Minors do not have the same rights as adults.
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Casey
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Confirms Roe, that woman has the right to make the moral decision to have an abortion, state still has legitimate state interests in health/viability.
Science has changed to make trimester approach not sound. Viability is still the most workable approach, trimester approach was not central holding of Roe. Requiring a signed statement from husband was an undue burden. A close call was the requirement that woman was given information and had to give 24 hours for informed consent--effect in theory and in practice is different could constitute an undue burden. |
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Abortion Undue Burden Test
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Comes from Casey. Any restriction can't have the purpose or effect of placing a substantial obstacle on the woman. Can't limit the choice. Key word from DP clause is "deprive." States restrictions have to meet strict scrutiny.
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Partial Birth Abortion case (Carhart)
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This Act was only a limit on the type of procedure the mother could have, not the choice. Can't do the type of abortion where the fetus is delivered partially intact and then skull is collapsed. There is an alliterative procedure for second trimester abortions.
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Rational basis test
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No permissible governmental interest to which the rule is rationally related.
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Textual rights
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Always get SS
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Nontextual rights
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First you have to determine if it is a fundamental right: 1. Look to other cases where court has recognized a contextual right.
2. No precedent, look to history and tradition. Has it been protected in our country throughout our history and tradition? 3. Justice Harlan's theory: Is it inherent in the concept of ordered liberty? Is this something all free citizens of a country have? Then to see if there is an infringement you see if there is an undue burden. Then decide what test will apply. |
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Family Cases: Zoning (Belle Terre, Moore)
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Belle Terre: group of students. Only needed a rational basis to have this zoning regulation, get rid of urban problems. Court upheld.
Moore: family rights cases precedent (Pierce, Griswold), history and tradition of families living together, undue burden on them because group of related people can't live together. SS, no compelling interest |
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Family Cases: Child Support & Right to Marry (Zablocki)
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Statute where if you owe back child support you can't get married. Constitutional right to marry precedent - Loving, history and tradition of marriage, inherent in ordered liberty. Even if interest was compelling it would still affect more people than necessary. State can limit marriage (age, consanguinity) but this is too far.
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Grandparent Rights (Troxel)
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Grandparents want opportunity to have visitation rights to child and mother opposes. Sweep of statute too broad because anyone can petition for visitation. Precedent, history and tradition, inherent in ordered liberties don't give rise to grandparent rights.
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Paternity (Quilloin, Michael H)
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Quilloin: Can't be a presumption of unfitness (Stanley), but you have to assume responsibility to be required to consent to adoption.
Michael H.: Presumption of paternity if you are married. Bio father wants to have rights to child. Family precedent, history and tradition, ordered liberty all go the other way. Scalia says there is no fundamental right in this case. |
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Scalia most specific statement of purported right test
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He does not want to be discovering new fundamental rights. He would like at the most narrow statement of the right. Need to state both broad and narrow right on exam. Does not work well with precedent, with history and tradition you would have to define the right more tightly so it becomes less important.
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Personal Appearance
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Court says there is no right (no precedent, but it is part of history and tradition and concept of ordered liberty), but even if there was a right the police officer having long hair would probably pass SS (Kelley)
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Right to Die
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Glucksburg: Is it a fundamental right? Precedent: refusing medical treatment not the same as active euthanasia under Cruzan, history and tradition: autonomy and self-determination, court says no
Defining the issue: the broader issue is right to commit suicide with assistance, more narrow issue is how you define yourself as an individual Because there is no fundamental right to suicide, RBT: preservation of life, integrity of medical profession, protecting poor & elderly. Ban upheld. |
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Right to Refuse Medical Treatment: Cruzan
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Need c&c evidence of patient's wishes to be removed from life sustaining treatment. This establishes a right to refuse medical treatment.
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14th Amendment & BoR
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If state is accused of violating BoR, need to plead 14th amendment as well. A federal statute does not need this.
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Second Amendment
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Heller: DC statute that prohibits you from possession certain guns and unlocked guns. Court analyzes prefatory/operative clauses of amendment, but looks at the operative clause first. Operative clause makes this a 1) right of the people (individuals) 2) to keep and bears arms (can carry weapons). Prefatory clause then: 1) a well regulated militia (all able bodied citizens) 2) security of a free state (right of people).
Not only limited to guns in existence at time of Constitution. McDonald: Applying 14th Amendment to state statute. Self defense is central to history and tradition |
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Incorporation Theory
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1. Total incorporation: everything is incorporated to the states
2. Selective incorporation: looking at particular rights and then seeing if they are fundamental to ordered liberty, freedom, justice? Then you have to decide if it is going to be incorporated with full force or just selective parts. |
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Homosexual Practices: Bowers, Lawrence
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Bowers: statute criminalizing sodomy, this is a civil case asking for declaratory judgment now. Precedent: Best to look at Griswold for this case, history and tradition: laws for a long time but were not aimed at homosexual conduct, concept of ordered liberty: does not work here, it is firmly rooted that it does not. No fundamental right here.
Lawrence: statute makes homosexual sodomy illegal. Precedent: Griswold, history and tradition: older sodomy laws aimed at both homo and hetero sexual practices, many states changed laws, Casey strengthened privacy rights in meantime & Romer did not pass RBT because based on dislike of homosexuals. Not clear that court recognized a fundamental right. Only a form of liberty protected by DP. |
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Standing
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Immediate danger, direct injury, or chilled and deterred from conduct
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Stare decisis
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1. Is rule unworkable?
2. Is there detrimental reliance? Should be people relying on it, not courts and legislative decisions. 3. Is the old rule an abandoned doctrine? 4. Have the facts changed? |
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Substantive DP Debate
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Constitution does not say that Court should be the one to decide these questions. Should people? Or is the court just best at doing this (Perry argument)?
Better way is probably to look at the right you are examining: is this a right that you gave up when becoming a member of society? Social contract theory. To decide this we need a neutral entity (court). |
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Difference between substantive & procedural DP
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The factual determination at issue is the procedure. For procedural DP there is an imposition of a law or penalty and the procedure was not sufficient to come to a reliable determination on this factual issue.
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Procedural DP
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1) Determine the liberty of property
2) Look at procedure - what procedure is adequate for determination of factual issue? |
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Examples of Property/Liberty Interests that Require Procedural DP
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Welfare because it is an entitlement, gives rise to property interest (Goldberg), being prohibited from buying alcohol by a determination by police officer gives rise to a liberty interest (can't buy alcohol AND reputation) need notice and hearing,
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Examples of Interests that do not amount to Property/Liberty Interests = no procedural DP
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Unilateral teaching contract with nothing more (Roth), shoplifting flyers given to stores - interest in reputation not enough to give rise to liberty interest (Paul), no property/liberty interest in PPO because it is discretionary (Castle Rock)
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What procedure is adequate: Procedural DP
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1. Private interest that will be affected by the official action: how important is the private interest here?
2. Risk of erroneous deprivation of this interest through the procedure used and the value of subsequent procedural safeguards: what is the likelihood that the government will make some error with that procedure and how much better is new procedure? 3. Government's interest in fiscal and administrative burden. Mathews SS case: private interest not as important as welfare, error is not as great here because they are relying on medical evidence, government will be paying out a lot waiting for hearings. Notice and chance to respond is enough, does not require hearing. Goss v. Lopez: Only notice and chance to respond for school suspension, same for student to respond before corporal punishment, Horowitz: dismissal for academic reasons provided enough DP, Camperton: Biased judge is not adequate DP. |
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Equal Protection
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Has to be:
1) Two or more groups of people 2) Treated differently 3) Intentionally Default test is RBT. Unless there is a suspect class (SS) or gender (IS). So here this is ok to regulate, but the line is being drawn inappropriately. To get to strict scrutiny? 1) Is there a suspect class? 2) Is there a quasi fundamental right? 3) Are people being exercised based on fundamental right? |
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Deferential DP
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RBT. No reason to think that there is a legislative motive.
Railway Express Agency: Ads on automobiles, can't do it unless related to business. Leg could have agreed this was more distracting; Dukes: different treatment for different vendors in N.O.; RR Board: retirement benefits Congress could conclude people who still work for railroad have more of an interest; Property taxes cases (Allegheny, Nordlinger) |
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Separate but equal
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Plessy: no Civil Rights statute at this time. Court says they are not treating the groups the same.
Beginning of the attack of this was to force states to try to maintain separate but equal professional schools. |
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Race based discrimination
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Korematsu: only case that passes SS! Military has to be able to make the excision to send enemy back to their country.
Loving: only interests in not allowing the marries was to keep the white race pure, this did not pass SS. |
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School desegregation
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Brown: School segregation generates feelings of inferiority to the child's status in the community which is unlikely to ever be undone. Court relied on social science evidence.
Brown II: Remedies of Brown. Desegregation "at all deliberate speeds." This only applies for de jure segregation. Bolling: Federally run DC schools, no lesser duty on federal government. |
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De jure/De facto Distinction
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Discrimination requires an animus. De facto means it just happened like that, i.e. housing patterns that create one race school districts.
Yo Wick: neutral statute but disproportionately affects all wooden laundromats which are all owned by Chinese. Violation because it is enforced unequally. The ONLY reason was to discriminate. BUT Washington v. Davis: disproportionate impact on black police applicants. There were other reasons other than discrimination. Feeny: Civil Service positions picking veterans for jobs first, not discrimination. they wanted to give veterans jobs. |
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Affirmative Action: Higher Education
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Grutter: UM law school wants a critical mass, gives more weight to minority applications. It does an individual determination for each student.
Bakke: Reseverd seats in medical school for minorities. This is not narrowly tailored. Gratz: UM undergrad point system not narrowly tailored. |
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Affirmative Action
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Two ways to meet strict scrutiny:
1) Remedy effects of past discrimination 2) Interest in diversity in the higher educational environment. Need good debate especially in law schools (math school not as good of an argument) |
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Affirmative Action: Secondary Schools
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Can only do it to remedy past discrimination in secondary schools (Parents Involved)
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Affirmative Action in Other Contexts
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Same rules for subcontractors being awarded a contract based on race, it has to remedy past discrimination (Aranand)
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Alternatives to affirmative action
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Lottery, universities having classes at schools to enhance curriculum or ACT/SAT prep
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Suspect Class Analysis (FN 5 Carolina Products case)
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To decide if it is a suspect class:
1) Does the suspect class create a discrete and insular minority? Discrete - mathematical yes or no sense insular - living apart from other people minority 2) Is there a history of discrimination? 3) Do they lack political power? right to vote not very indicative, right to get people elected, numbers in Congress, political capital. 4) Is there an immutable characteristic related to merit? can you change it? is it related to ability? 5) We/ they relationship? One class ruling another |
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Gender discrimination: Cases when it is not upheld
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Craig v. Boren: different ages for buying beer for men and women, not enough relationship here; Hogan: single sex female nursing school can't discriminate against males. The states arguments are to compensate women for past discrimination (does not work because they could always be nurses), women become better nurses in single sex setting (no); VA Military schools cases: not enough of a justification, schools are not equal.
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Intermediate scrutiny
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Must be substantially related to an important government objective.
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Gender discrimination: Cases where it is upheld
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Statutory rape: deterrent is pregnancy for girls. Could have a public policy argument here that now men just have to find willing female (Michael M.); Citizenship of a child depending on who is parent citizen, has to be a court order and paternity established for citizenship if dad is the parent because there are differences between male and female parents (Nguyen).
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Illegitimacy based discrimination
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Likely to be intermediate scrutiny. Need to go through 5 step analysis.
Mathews v. Lucas: There could be so many people who want to inherit from someone so we want proof that you are a surviving child. |
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Discrimination against aliens
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5 step analysis for whether they are suspect class to go through. Yes, suspect class. SS.
Graham: Can't get welfare if you are an alien. Applies SS. Not upheld, aliens pay taxes; Matthews: can't get federal assistance for medical care for 5 years: upheld for federal government |
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Discrimination against aliens: Government jobs
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Is there a government function that is part of this job? If there is, the state can limit the job to citizens. Only requires RBT.
Sugarman: Can't take civil service exam if you are alien. This is too far, reaches positions with no relation to government policy; BUT Amback: can't get a teaching job if you are an alien who is eligible to naturalize but who chooses not to. Schools are teaching government, American values |
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Age Discrimination
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Murgia: Only applies RBT. Employees have to retirement at 50 because physical fitness is an important concern; Judges can also be forced to retire
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Wealth Discrimination
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Courts says this is not a suspect class even though the 5 factor test makes it look like it will be
James: State & voters do not want housing projects w/o community approval |
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Mental Retardation Discrimination
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Court will only apply RBT even though 5 factor test makes it look like suspect class BUT they apply RBT with teeth!
Cleburne: living center denies special use to a home for the mental handicapped. States args: population density, how they will evacuate the home, neighbors will object. Court says the only reason for this is dislike of group. |
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RBT with teeth
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Applied in hippie food stamp case and mental retardation case. A dislike for these groups is not a rational basis. Seems like Court won't apply SS for mental retardation case because it will open up the door to more suspect classes, like physically handicapped.
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Sexual Orientation Discrimination
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Romer: Didn't pass RBT when CO was repealing anti-discrimination statutes and barring adoption of new ones.
Windsor: Got married in a state that recognizes gay marriage, is she subject to federal estate tax when partner dies? Motivated by dislike of a group |
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Fundamental right prong of EP
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1. When people have been classified based on their exercise of a fundamental right. You decide if it is an undue burden, substation interference, deprivation then it is DP, but if it is minor it still might be a violation of fundamental right.
2. Rights that really are not fundamental. Quasi-fundamental rights. If you grant to some people, you have to grant to all people. EX: Divorce: so close to right to marry. But still ok to have limit on 1 year in state before can grant divorce. BUT court won't say education or right to discretionary appeal is quasi fundamental right (so no right to attorney, right to get transcript if you can't afford). |
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Voting
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Right to vote is not a fundamental right, it is a quasi fundamental right. States did not have to grant the right to vote, but if you do you have to give it to everyone (Kramer). Then have to meet SS to restrict.
Kramer: property holders or people who have children not able to meet SS. BUT Crawford: can present ID to vote not undue burden. Dunn: Tenn case where you cannot vote unless you have been a resident for a certain amount of time. They exercised right to travel, so states has to meet SS. Fails SS. |
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Voting: Representation & gerrymandering
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Does not have to be exactly one person one vote, but it needs to be close. Point of our system is deliberative democracy.
Reynolds: violation when reapportionment not done in 60 years. BUT ok when redistricting is done with all 3 branches controlled by one party in state (Davis). No judicially manageable standard for gerrymandering (Veith) |
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Districting, race & suspect class
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Has to be intent to cancel out votes of one race for 14th Amendment claim (Rogers, did have this intent). Plaintiff has the burden to show that race was a predominant factor.
Predominant factor: State can argue other factors, like when they used a computer program to gerrymander. This didn't work because it looked at race primary (Bush v. Vera). Oddly shaped figures: can show intent (Shaw), but it is not required to show intent (Miller) |
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Welfare
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Poor are not a suspect class, but right to travel is a fundamental right so we apply strict scrutiny for these cases.
First see if they were deprived of this right: it it an undue burden? were they denied the right to travel? States interest: fiscal concerns, prevent people traveling to get welfare, benefit is portable. Saenz: did not work when CA limited amount you could get in first 12 months in state. BUT Dandrige: ok to put a cap on how much welfare a family can get. |
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Tuition
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In state & out of state tuition. Benefit is portable.
Vlandis: can't make it impossible to become resident (can't make it an irrebuttable presumption, but can be a presumption) |
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Education
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Education is not a fundamental right (Rodriguez), not even a quasi-fundamental right (they make arguments that it is essential to be able to use free speech, voting).
Brennan's dissent in Rodriguez makes it the closest it can be to a quasi-fundamental right. Rodriguez: inner city schools not getting as much money not a violation. BUT undocumented aliens can't be denied EP (Plyer). Also as close as it gets to establishing a quasi-fundamental right. |
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Free expression: Clear & present danger
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Political speech (most protected). Needs to meet SS. Preventing imminent lawless action is a compelling government interest.
Test comes from Brandenburg: KKK case. Clear and present danger if it is directed to incitement of imminent lawless action. Older cases: Schenck: Espionage Act. There was intent to bring about insubordination at this was at a time of war. Expect it to have this influence and it is going to cause this danger. This is the same when you are merely praising someone who is convicted of obstructing the military during war. Abrams leaflet also was against US invasion of Soviet Union. |
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Free expression: Compelling interest in preventing terrorism
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Holder case: Can't give money to even humanitarian purposes of terrorist organization. They use the compelling interest in terrorism to make them unable to fund these organization.
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Clear & present danger for publications
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Hit Man book case: need intent to bring about lawless action. They admitted that there was intent.
BUT the news would never be liable because there would never be intent. |
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True threats
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Have to have intent to threaten someone. If the reasonable person would be put in danger of reasonable fear.
Planned Parenthood posters and publications. Reasonable person would be in fear because other doctors were killed. Intent was there because they knew other had died from having faces on posters. |
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Libel
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Truth is a defense. False statements has to be an intentional misstatement that was made true by law. Knowingly false statement could be valuable.
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Libel: NYT Rule
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Public figures can get damages, but they have to prove actual malice. The person has to know it is false or have a reckless disregard for the truth. Public official has to be performing public duties. Actual malice has to be found by c&c evidence. During pre-trial motions, judge has to look at the possibility of the jury finding actual malice by c&c evidence, which helps newspapers get case dismissed.
In NYT case Sullivan could not prove that NYT knew this was false, negligence was not enough |
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Libel: Public Figures
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NYT rule applies. The only way we have to limit public figures is through publicity, nothing else we can do--we can't get them out of office. To be a public figure you have to have general fame or notoriety.
Butts: athletic director at Georgia. BUT Firestone divorce--just because the public is interested does not make them a public figure. |
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Libel: Punitive Damages for Individual
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Have to show actual malice to get putative damages. Interest in reputation greater for an individual, so Times standard only for putative damages. States can define their own standard for libel for individuals.
Gertz: lawyer in murder case who is not public official/figure. |
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Libel: Statements of opinion
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No special rule involving opinion. Expressing opinion is not something you will be able to sue for. BUT when someone turns the opinion into more of a fact then it can be wrong.
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IIED
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To recover for IIED for a libel case, you have to prove the Times standard.
Falwell: Campari liqueur case. Snyder: Westboro Baptist Church at funeral for solider. This was not a public figure. These were comments about public importance. |
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Libel: Reputation & Private/Public Speech
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Internal/external benefit analysis. There is external benefit to reporting the news, internal benefit to them because revenue increases. Some of the internal cost is libel judgments. May decide not to print a story because you think about the libel cost. We make it more difficult for plaintiffs to win a libel judgment to minimize internal cost.
Bradstreet: Information in this case is not going to the public, only people who paid for credit reports will see it. |
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Pornography/obscenity distinction
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Pornography is describing sex, writing about sex. Obscenity is a legal conclusion, limited to sexual depictions. Can be prohibited. Obsenity is based on the appeal to prurient interest.
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Memoirs obscenity test
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Appeal to a prurient interest (lustful thought, longing. Work is considered as a whole and it can be prohibited if it has a dominant theme of appealing to prurient interest. Looking to the average person and applying contemporary community standards. Utterly without redeeming social value.
Roth: only recognized obscenity standard, we assume that it was always there historically. Kingsley: Can't ban something based on an idea of adultery; Pandering can come into analysis (Ginzburg); Private possession of obscene materials cannot be criminal (Stanley). |
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Miller obscenity test
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1. Whether the average person applying contemporary community standards would find the work amen as a whole appealing to a prurient interest
2. Whether the work depicts or describes in a patently offensive way sexual conduct defined by state law 3. Whether the work taken as a whole lacks serious literary artistic political or scientific value (SLAPS) (different from Memoirs because Memoirs was utterly without redeeming value) In this prong you apply contemporary community standards (Pope). |
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Internet obscenity standard
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Could either be a single standard for the Internet community or look at the community that it was accessed in.
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Obscenity at a particular group of people
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If it is appealing to a certain group (sadomasochists, etc.) then you look to the prurient interest of that particular group (Mishkin - books about sexual deviations; Ginsberg - 16 year old purchasing girly magazines)
Paris Adult Theater: Argued that consenting adults were the only ones seeing the films, but this did not make a difference. |
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Fighting words
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Those by their very utterance inflict injure OR incite a breach of peace. Mostly only for face to face contact so a broadcast of a racial word would not work.
Chaplinsky: calling police officer a Fascist |
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Hostile Audiences
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We want to protect speech that invites dispute so if there is just a lot of tension it is protected, but the police need to have power to prevent a breach of peace and at a minimum protect the speaker.
Difference between clear & present danger (Feiner): in clear & present danger the audience is normally agreeing with you. |
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Offensive Language
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If it is not directed at anyone specifically, not obscene, then it is probably potted. Listeners/viewers can avert their eyes (Cohen).
Rifle River case: thrown out because statute is vague about what you can and cannot say in front of children? but if you put people on notice this could work. |
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Alvarez: Congressional Medal of Honor case
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Man lies about having Congressional Medal of Honor. Has to meet SS. Gov't argues they have to protect medal and its value. It is not narrowly tailored, they could use counter speech or make a database.
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Child pornography
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Exception created under Ferber.
Adjusted Miller test: doesn't have to be patently offensive, can't be saved by having serious value because there is still harm even if there is value. Possession can be criminal under Osborne because it can be used for recruitment tools. Ashcroft: child morphing (adding real child's face) is not ok because still harm to a child, but completely fake children is protected. Could be different if technology advances to where we can't tell the difference between real and not real. BUT pandering it as real child porn can be prosecuted (Williams). |
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Sexting
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If possession is criminal under Obsborne, how do you decide when someone is in possession of a sext? Does prohibiting possession limit likelihood of production?
Could be that the prosecutor should not prosecute for this. |
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Failed attempts at new exceptions
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Crush videos for animals will not be exception (Stevens), violent video games are protected. No long history of protecting children from this material (Brown)
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Communicative Conduct: O'Brien test
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First need to decide if the restriction is aimed at the message or aimed at the conduct? If conduct, O'Brien:
Test is is the governmental interest justified (similar to IS): 1. Federal gov't: Is it within constitutional power of gov't? State law: is it within police power? 2. Is it unrelated to the suppression of free expression? 3. Does it further an important or substantial government interest? 4. Is the incidental effect on the First Amendment no greater than is essential to further this interest? O'Brien: burning draft cards, government was looking to prevent people from burning other's draft cards; Texas v. Johnson: flag burning statute unconstitutional because they prohibit message; Homelessness in park case: they were only prohibiting conduct sleeping in parks |
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Secondary effects
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Effects on the community, surrounding circumstances. Not on what happens to the viewer of the speech.
Is it content based or content neutral? If content based, have to meet SS. If content neutral, TPM. Renton: adult theaters, Boos: embassy signs |
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Commercial speech
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Central Hudson test:
1. Is it protected at all? It has to be lawful activity that is not misleading. 2. Is the asserted gov't interest substantial? If yes then: 3. Regulation has to directly advance gov't interest (relatively narrowly tailored) 4. Is it more extensive than necessary to assert that interest? Pure commercial speech is advertising something to buy at a certain price (VA State Pharm Bd.). This is protected. Lorillard: cigarette advertising case not directly advancing gov't interest it went too far (point of sale ads, 90% of ad space banned) |
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Captive audience
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In someone's home, on a bus, etc.
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Hate speech: Libel against a group
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Beauharnais: court applies what seems like RBT, in this case a publication was libel against an entire race. Government can have reason to prohibit this.
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Hate speech
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Just giving an offensive political point of view is not hate speech if it dos not come under captive/hostile audience exception.
Where you draw the line becomes important. You can draw the line and ban something that is unprotected, but you can't allow some unprotected speech and not some other unprotected speech based on another dimension (words against government, words that express views on race). RAV: cross burning statute not ok. BUT Black: cross burning statement with intent to discriminate is ok, but that burning cross can't be prima faciae evidence. Mitchell: can have enhanced penalty for someone who committed crime based on race. |
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Prior restraints
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Gets at the licensing aspect, can't publish something at all. You could do this for war secrets during times of war, if a book has been found to be obscene.
Near: can't enjoin publication because offensive; Bantam Books: can't advise store that they should remove books because they are not appropriate for children; NY Times: can't say you can't publish decision in Vietnam in non-wartime. BUT Progressive case: if you publish a how to for a war bomb this is a threat to national security. |
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Time, place, manner restrictions
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Applies to speech that is regulated
1. Justified without reference to the content of the regulated speech (content neutral). Wasn't content neutral when you couldn't picket around school unless labor dispute (Mosley). If content based have to apply SS. 2. Narrowly tailored to serve a significant governmental interest (intermediate scrutiny) 3. Leaves open ample channels for communication of information |
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Public forum: TPM
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Truly public forum is somewhere like parks, streets. Then go to TPM test.
Rock against Racism: bandshell, this restriction is ok. Airport was not a public forum (Krishna). If not public forum only needs to meet RBT. So they could not solicit, but could distribute literature. Content based = SS. Burson campaign materials banned within 100 feet of polling place. Court upholds this. BUT TPM was applied for all speech surrounding health depot (Hill) |
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Student speech
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Tinker: material and substantially interferes with the rights of the school OR infringes on the rights of other students
Fraser: lewd and offensive speech can be prohibited Hazelwood: if the school could be viewed as the speech of the school it can be prohibited Morse: under Tinker you can ban speech about illegal drug use |
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Broadcast media
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If we are banning based on content, needs to meet SS. But the narrowly tailored portion becomes whether or not there are less restrictive alternatives.
Uniquely pervasive presence, available to children. Indecent material can be banned. Pacifica: can ban Filthy Words monologue on radio, repetition of words; Playboy: sex programming on TV fully blocked or between certain times not NT. There is a less restrictive way to do it. |
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Internet Broadcast Media
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Reno: It went too far to knowingly transit obscene messages (bulletin board when you KNOW someone is 18, parents to children), making it available to anyone under 18 (you would always have to know who could see it). Commerical & non-commercial.
Ashcroft: Have to look at the most conservative community that content could be accessible in and see if it would be obscene there. Then they address Miller. But it is not narrowly tailored because you could use filters and criminal statute won't address international people. |
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Saunders' way to limit Internet access
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Toggles on Internet. All systems have to have PICS filter and you can toggle it on and off. Won't chill adult speech, only possibility is overly cautious providers filtering too much. Potential problems are going through all old content, are you responsible for links?
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Filtering
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Both under and over inclusive. Can't check for serious value.
Am. Lib Ass'n case: People receiving fed. funds have to use fitters, this is ok under spending power. If kids have access to a computer there has to be a filter. |
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Campaign Finance
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First Amendment extends to corporations. Court is concerned with the individuals right to receive information, some of this can come from a corporation. There is still a disclosure requirement (political parties don't have to disclose who is funding them if it would lead to threats (Brown))
Citizens United: wants to be able to use general treasury funds to support candidates, BCRA prohibits this. Ban is on the speaker. Arguments on the other side: anti-corruption - buying votes, anti-distortion - perpetual life of corporation, shareholders interests - BUT there is corporate democracy too Media corporations: have always been an except, Court does not address foreign corporations |
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Freedom of Association With or From Ideas
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Strict scrutiny. From the penumbra of First Amendment. State can't make you associate with a certain idea. A lot of these cases come from a state court interpretation of their constitution, now P is saying their federal const. rights are violated.
Barnette: can't make you salute the flag; Wooley: can't be required to display state message; Shopping Center: private shopping center (under CA const.) can't prohibit people from handing out literature; Rumsfield: law schools not wanting to let military come to recruit doesn't work; Hurley: don't have to portray LGBT message in parade; Keller: can't be required to fund political activities of state Bar if you are required to join Anonymous campaign literature is ok (McIntyre) |
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Freedom of Association with or from ideas: Government speech
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If you are being forced to pay a tax and then speech comes from the government this is not government compelled speech, it is government speech funded by a tax. Government has a right to speak, put up monuments, advertise and it is not a violation of rights.
Johanns: beef advertising cases is speech of the government |
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Freedom of Association from persons
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1) Right to associate for expressive purposes (organized to advocate for certain opinions)
2) Right to associate with who you want because it safeguards your relationship (intimate association, need to look at size, purpose, politics, selectivity, congeniality, other characteristics) Court applies what sounds like intermediate scrutiny: 1) compelling government interest 2) can't be less restrictive than it has to be. Roberts: Jaycees club can't exclude women not an intimate or expressive group; Boy Scouts: Is expressive, accepting gay leader would impact their message so it can be restricted; Christian Legal Society: can still be an expressive group, just can't use their facilities |
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Establishment Clause
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Have to apply Lemon, Establishment Test, Coercion Test
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Establishment clause: what is prohibited
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Can't set up church, pass laws that aid or prefer one religion, force/influence a present to go/not go to church, no tax to support religion, can't particulate in affairs
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Establishment Clause: Lemon Test
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Lemon test:
a) Secular purpose b) Principal or primary effect has to be one that neither advances nor inhibits religion c) No excessive government entanglement with religion Lemon: entanglement to support teachers in religious schools for secular subjects BUT allowing religious schools to borrow textbooks for secular subjects from public schools is ok. Mueller: can't get tax credit for sending kids to religious school, Zobrest: sign language teachers are ok to fund. McCollum: religious teachers coming to teach voluntary 30 min of religion fails this BUT it is ok to let students out of school for religious instruction (Zorach); Jaffree: moment of silence in school purpose was to bring prayer back to school. |
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Establishment Clause: Establishment Test
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(Justice O'Connor in Lynch)
a) Does it have an actual purpose of endorsing religion? b) Even if there is a secular purpose you have to look at the effect of endorsing religion. Court adopts this test in Allegheny. Stairscase & menorah display. Creche fails and menorah passes. McCreary: violation with 10 commandments on walls; Van Orden: monument of 10 commandments is ok |
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Establishment Clause: Coercion Test
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If the government is forcing an individual to listen to a religious message. If it violates this test it will likely also violate establishment & Lemon tests.
Lee: clergy member performing graduation ceremony violates; Santa Fe: school prayer before the game too closely tied to school, microphone, selection by the school. |
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Religion & Tax
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Churches can be included in programs for tax exemptions for nonprofits, but First Amendment does not require an exemption.
Everson: Kids can be transported to private schools with public tax funds Walz: Churches can be part of larger nonprofit plan to be exempt from property taxes. BUT Texas Monthly: can't have a special exemption for religious publications. |
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Neutrality Test
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Decisions that are begin made independently of the government. This test appears to replace the second prong of the Lemon test. If it is truly neutral it will probably pass the entire Lemon test.
Zelman: when parents were choosing whether to use their subsidy to send their kids to public/private schools then it was a private choice. |
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Teaching evolution/creationism
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Can't have an anti-evolution statute (Epperson), can't only teach evolution coupled with creationism (Edwards). But teachers don't have to be hostile to religion, you just can't teach it as science you have to do it comparatively.
Difference between scientific theory and religious view is falsifiability. |
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Student religious groups
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Applies to both high school & universities. If you have non-curricular groups to have access to school facilities you have to allow this access to religious groups. If all of the groups are based on curriculum then you do not.
Mergens: allowing all student groups to use facilities. |
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Free Exercise Clause
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For limits on conduct, a neutral generally applicable rule will not raise any First Amendment questions. If the rule is aimed at banning religious conduct then it can be limited.
Smith: peyote use not required to have religious exception because it is neutral and generally applicable but Hialeah animal sacrifice was only to stop Santeria religion |
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Two aspects of free exercise
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Freedom to believe, freedom to perform or refrain from engaging in certain conduct
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Play in the joints between Free exercise & Establishment Clause
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There can be situations where it is not a violation of establishment clause because it turns on individual choice, but it can be a violation of free exercise.
Locke: scholarship money for devotional theology. |
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Employment in religious organizations
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If it is for a nonprofit person, you can require that the person is of your religion, but if it is a for profit employee you cannot discriminate (Amos).
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State Action
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Constitution only impacts government entities and private individuals that can be sufficiently tied to the government or performing government duties. Older cases were more likely to find state action.
1. Symbiotic relationship (Burton parking garage) 2. Private party conducting government function (primary elections by Democratic Party, acting as a town (shopping center was not doing this though)) 3. When the state encourages you to take action (Prop 14 encouraging CA property owners to discriminate) 4. When the court becomes involved and you get a court order, the court is then a state actor (Shelley, peremptories in criminal trial) |
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State action NCAA
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NCAA was not a state actor when they had different interests from the university, but they could be a state actor if the university and NCAA were working in conjunction with each other.
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