Constitutional Law

Near v. Minnesota

**landmark case**MN law let gov. get injunction to stop publication of defamatory newspapers [Courts may not issue injunctions against the publication of newspapers, magazines, or other periodicals deemed to be "malicious, scandalous, and defamatory" as such a court order would constitute a prior restraint on the freedom of the press protected by the Fourteenth Amendment to the Constitution] Holmes: Prior restraints are presumptively unconstitutional and will only be permitted when the Gov. meets the heavy burden of showing the restraint is justified. Exceptions: - National Security - Obscenity - Incitement to Violence Butler dissent: this is a remedy to an earlier behavior, not a prior restraint. Facts - MN statute made someone who published defamatory articles guilty of a nuisance and the government was authorized to seek an injunction to stop these publications. Article printed referred to mayor as "Jewish Gangster:" Holding - statute imposed an unconstitutional prior restraint on publication. Always cited in prior restraint cases

Public Function Theory

- *There is state action when private individuals perform functions traditionally and exclusively reserved to the State. - Two types of public function theories: 1. State-Like Power Theory - when a private actor exercises power equal to the nature and scope of the state, the activities of the private actor should be deemed state action 2. State-Delegation Theory - when the state delegates one of its traditional functions to private actors, the activities of those private actors in the performance of those functions should be deemed state action - The public function doctrine has been substantially narrowed by the Burger/Rehnquist courts.

Designated Public Forum

- An area which doesn't meet the criteria for a traditional public forum, but the government intentionally chooses to open up to expression. Ex. school, university - Content-based restriction = Strict Scrutiny - Content-neutral time, place, manner restriction = Intermediate Scrutiny

Citizen Participation Model

- Based on the idea that democratic government requires there to be vigorous, robust, open discussion and critiques of public issues and public officials. - Political discussion is a political duty. Citizens who decide issues need to be informed; "educated electorate" Calls for the absolute protection of political speech. - Implicit in this model is a right to hear speech; so must protect press sources. - Michealjohn and Bork have taken this to the extreme; they hold only political speech is protected. - Democratic government requires vigorous, robust, open discussion and critiques of public issues and public officials. Political discussion is a political duty.

Individual Liberty Model

- Based on the idea that speech has an intrinsic value. "Liberty is valued as both an ends and a means." - We have liberty to develop our own faculties, promote individual autonomy and further self-determination - There are certain things we do that express ourselves to the world - art, music, poetry - Speech has intrinsic value; speech valued as both an ends and a means; we have a liberty to: develop faculties, promote individual autonomy & self-determination

Substantive Due Process Generally

- Substantive due process refers to the fact that there are certain types of rights that are implicitly found in the Constitution. - The substantive due process debate began with economics, not privacy. - The substantive due process component deals with the concept of liberty. It protects certain liberty interests.

Procedural Due Process General

- The 5th (federal) and 14th (applied to states) Amendments guarantee due process. - Procedural due process is a floor set by the federal constitution. State constitutions, statutes and the common law can give more rights, but not take away from the rights we are ensured by procedural due process. - If you have a life, liberty or property interest, the government cannot take it away without due process of the law.

State Action generally

- The Constitution's protections of individual liberties and its requirement for equal protection apply only to the government. Private conduct generally does not have to comply with the Constitution. (Civil Rights Cases) - State action is a threshold issue. If there is no state action, the 14th Am. doesn't apply. - Though a threshold issue, Courts seem to make exceptions for cases dealing with racial discrimination or 1st Amendment protections - they are likely to 'find' state action, even if it really doesn't exist; that is, they will stretch the state-action doctrine to fit these cases. - State action jurisprudence is called "a conceptual disaster area" - Timeline - early cases took a narrow view of state action (Civil Rights Cases). State action broadened in the 1940's (Warren Court) which allowed the Court to fight private racial discrimination. The Burger/Rehnquist court has curbed this expansion.

Absolutism

- The First Amendment is not absolute - Although Justice Black advocated a textual reading of the Amendment, this absolutist approach has not been followed. - Holmes made it clear: you cannot yell "fire" in a crowded theatre. - Absolutism - only justice Black believed the 1st Am. was an absolute protection of speech

1st Amendment Establishment Clause

- There is an inherent tension between the Free Exercise Clause and the Establishment Clause - the more the government protects free exercise, the most they become entangled and may violate the Establishment Clause - The court has recognized that we can make public connections with religion; Douglas stated in 1952 that "we are a religious people." - Looking to history is not that helpful when looking at the Establishment Clause; but here are the three general views

West VA State Board of Education v. Barnette

- students cannot be required to salute the flag

Obscenity

A category of speech completely outside 1st Amendment protection; regulation OK.

Young v. American Mini Theaters

A city ordinance may constitutionally require the geographic disbursement of adult movie theaters if doing so furthers a legitimate governmental purpose.

American Legion v. American Humanist Association

Alito- A presumption of constitutionality applies under the Establishment Clause to longstanding memorials with historically secular purposes and traditions, even if such a memorial uses a religious symbol on public land. Even though the cross originated as and still is a Christian symbol in many contexts, it took on secular meaning in WWI memorials. Over time it acquired historical significance and reminds people of the sacrifices paid for democracy. It has become a symbolic resting place for those who never returned, a place to honor veterans, and a historical landmark. People would not perceive destroying it after nearly 100 years neutrally.

1st Amendment Free Speech Generally

"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 the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Hess v. Indiana

"we'll take the ****ing streets tomorrow" - cannot be convicted for syndicalism because the threat was 'tomorrow,' which is not imminent enough.

Clear and Present Danger Test

"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."

Lawrence v. Texas

(Kennedy, majority) - struck down sodomy statute because it infringed on the liberty protected by the 14th to engage in private, consensual, adult activities. History and tradition of non-interference with private sexual decisions between consenting adults is paramount and an integral part of freedom. Bowers is expressly overruled. Stare decisis is not an inexorable command. O'Connor concurs - This is an equal protection issue since it's directed toward a particular politically unpopular group. Would not explicitly overturn Bowers as that one impacted everyone in the same way and was rightly decided. Scalia dissents - stare decisis, Bowers; can we legislate morals?; not a fundamental right Thomas dissents - like Griswold, this is an uncommonly silly law, but it is not the court's authority to get involved where the legislature has decided.

Gonzales v. Carhart

(Kennedy, majority): partial birth abortion ban only impacts a particular method, so is not unduly burdensome under the Casey standard. There is not sufficient evidence to support the assertion that partial birth abortions are medically necessary to exception for the life of the mother is not needed. The core of Roe still stands before viability. Leaves open the door for an as-applied challenge. Thomas/Scalia concur, decision is correct, but Roe and Casey should be overturned. Ginsburg (w/Stevens, Souter, Breyer) dissent, with no exception for health of the woman this law presents a major equal protection issue. Waiting for an as-applied challenge is dangerous/unfair.

Hudgens v. NLRB

(overrules Logan Valley) [highlights the tension in the preceding two cases and says that allowing shopping centers to viewpoint discrimination while considering them as state actors is a patent violation of the first amendment]

Content-neutral regulation

Content-neutral regulations are more likely to be upheld than content-based regulations. This regulation concerns Time, Place, and Manner restrictions. Content-neutral if it can be applied without asking about the content of the speech. Its content-neutral as long as there is no unrevealed underlying justification Content-neutral regulations get an intermediate level of scrutiny (Ward v. Rock Against Racism) - Regulation serves a significant/substantial governmental interest (not a compelling governmental interest) - Narrowly tailored (but not necessarily the least restrictive means) - Leaves open ample alternative channels for communicating the information When the government regulates for reasons unrelated to the speaker's message, even though freedom of speech is incidentally burdened, 1st Amendment review is less demanding.

Types of Cases used in:

Control of electoral process- white primary cases Management of private property

Eisenstadt v. Bayer

Court struck down contraception ban for unmarried people on Eq. Prot. grounds, but Brennan wrote that right to privacy means we have a right to "be free from unwanted governmental intrusion into matters so fundamentally affecting a person as to whether to bear or beget a child" - Facts - A MA statute stated that unmarried people may not use contraceptives - Holding: Unconstitutional 1. "If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters fundamentally affecting a person as the decision whether to bear or beget a child." 2. While this case was decided on EPC grounds (married people had different rights than unmarried couples with no compelling governmental interest to support it). 3. Justice Brennan was giving Blackmun a hint on how to write the Roe decision (which was pending during this case). 4. Laid the groundwork for Roe v. Wade - shows evolution of privacy from the intimacy of private relationships (Griswold) to include a woman's choice to bear / beget a child.

West Coast Hotel v. Parrish

Court took hint from FDR's court-packing scheme; upheld minimum wage law; it had struck down an identical law during Lochner Era...end is near. Freedom of contract is not mentioned in the Constitution! Holding - upholds a state minimum wage statute for women. 1. During the Lochner Era, the Court had struck down an identical piece of legislation. 2. This case shows how the Court expressly overruled a decision decided under Pure Lochnairian substantive due process. 3. The Court holds that minimum wage laws are a valid exercise of the police power. 4. This signals the end is near for Lochner.

Indecent Speech

Current law - The government can regulate non-obscene, sexually explicit speech; but their law will be subjected to strict scrutiny (because this is a content-based restriction) While protecting children is a compelling governmental interest, it must still be narrowly tailored to achieving this end. There is a balancing test - right to access v. need to protect children The government can frame their legislation as content-neutral by referencing it to the secondary affects - this way only intermediate scrutiny is applied. (Renton) Reasonable time, place, and manner restrictions are allowed (Young)

Heckler Veto

Curtailment or restriction of one party's freedom of speech based on an anticipated negative reaction.

Engel and Schempp

Engel and Schempp - the earliest cases Held that prayer in public school may not be initiated, encouraged, led or required by a teacher or student in a public school. - Engel - rationale for Est. Clause: A union between government and religion tends to destroy the government and degrade religion. If the government supports a particular form of religion, it incurs the hatred and contempt of those who hold contrary beliefs. - Schempp - asks, what are the purposes and primary effects of the enactment? The purpose of the statute has to be secular in nature, and the primary effect must not advance or inhibit religion.

Lee v. Weisman

Facts - School had a tradition of rotating clergy to give a non-denominational prayer / invocation at the commencement. Weisman got mad, school had a Rabbi lead the prayer next year, Wisman says 'your missing the point.' Mr. Weisman doesn't want religion pushed on anyone else. Holding [Kennedy] - school practice violates Establishment Clause - Kennedy invents the Coercion Test - this practice violated the Establishment Clause because the state effectively coerced students into participating in prayer - Even thought graduation isn't exactly mandatory, its an important life-cycle event; which is effect is mandatory for young people... - We are dealing with kids - kids are different, they feel coerced, peer-pressured into saying prayer. Blackmun concurs - this practice does not pass the Lemon test. Souter concurs - Est. Clause is not limited to discrimination between sects and coercion is not necessary, only endorsement. Decision is correct, test is wrong. Scalia dissents - Coercion is important but requires force of law/threat of penalty. This is a one-time event with parents present to balance the teachings.

Sherbert v. Verner

Facts - Sherbert couldn't find work because she refused to work on Saturdays, her Sabbath. Because of this the State denied her unemployment benefits. Rule - STRICT SCRUTINY is the test for laws burdening religious freedom. Holding - the denial of unemployment benefits is unconstitutional. - Although this law only has an indirect affect, it would violate a cardinal principal of her religious faith and penalize the free exercise of her constitutional liberty. - The strict scrutiny test by the court required that the government demonstrate a compelling state interest for the law and show that it was the least restrictive means of regulation. - So, under the Sherbert analysis, here is our test: 1. Plaintiff must have a sincerely held religious belief 2. The burden by the State must be substantial; unrelated to mere convenience 3. Strict Scrutiny - the state must show a compelling governmental interest and that it is the least restrictive means

Locke v. Davey

Facts - State of Washington prohibited the giving of state scholarships for higher education for those who studied theology for religious purposes (divinity school). A student received a state scholarship, which was subsequently revoked when he decided to become a minister. The student challenged this as a violation of the Free Exercise clause. Holding - [Rehnquist] - the student was not entitled to the scholarship. Just because you can doesn't mean you have to Just because the State could permissibly give a scholarship to this kid to attend divinity school doesn't mean that the Free Exercise clause requires the state to do so.The State of WA had their own establishment clause which they construed as having a greater degree of separation between church and State.

Spence Test

How to determine what kind of conduct triggers 1st Amendment protection: Spence Test The actor was trying to communicate an idea by his conduct There was a target audience to which the actor was trying to communicate The actor intended to communicate his idea.

Burton v. Wilmington Parking Authority

STATE ACT. - Symbiotic Clark majority: coffee shopped leased space in Gov. Building and discriminated. There is state action due to the "symbiotic relationship" test. Harlan dissent - the ruling leaves the concept of state action completely at sea. Private coffee shop leased space in government building; they denied service to blacks. Black customer sued on EPC grounds Court found there was state action due to the "symbiotic" relationship between the restaurant and the government. Reasoning - Rent was paid by the café to the state; the State benefited from the lease as the café was essential to the successful operation of the parking garage which was an overtly public facility; the restaurants profits were due in part to discrimination (restaurant claimed it would loose money if it served to blacks) There is circumstantial evidence in this case that suggests the government itself had racially discriminatory motives. This isn't really "licensing" in a usual governmental sense; normally governmental licensing or regulation is not state action.

Shelley v. Kraemer

STATE ACTION - Excessive Entanglement Homeowners in an area had a racially restrictive covenant. When blacks bought a house from willing white sellers, the white neighbors sued to enjoin the black family from taking possession of the house Rule - Courts cannot enforce racially restrictive covenants. Because the court system is run by the state, the judicial enforcement of the restrictive covenant would constitute state action, therefore the 14th Amendment's EPC applies. Judges are governmental actors and judicial remedies are state action - Court hasn't taken this to its logical extreme which would allow everything to be made a state action. Shelley v. Kramer (never overruled, but generally ignored) - Vinson majority: judicial enforcement of rules which violate the Constitution (racially restrictive covenant) is state action because courts run by state; excessive entanglement.

Evans v. Newton

STATE ACTION- Park in GA has been left in trust with a provision that it only be used for whites. City of Macon was the trustee, but when came under scrutiny instead of desegregating, city was replaced by private individuals as trustee. But, the park was open to the public and maintained by the municipality. Blacks sued on 14th's EPC grounds. Rule - Running a park is a public function and it has to comply with the Constitution even if managed by a private entity. State action (allows application of EPC) because simply changing trustees doesn't change the way the park is controlled and maintained. Park is like a fire or police department, traditionally serving the community (public function). Mass recreation is plainly in the public domain.

Snyder v. Phelps

Westboro Baptist "Church" protests military funeral. Roberts majority - speech at a public place on a matter of public concern is entitled to special protection and cannot be restricted just because it's upsetting. (Content, form, context analysis) Breyer concurs - the state is not always powerless to provide private individuals with protection from these kinds of demonstrations. This is very narrow. Alito dissent - father was private citizen and speech was directed specifically at the family, so that goes beyond public discourse.

1st Amendment Expressive Conduct

When the government regulates conduct and the conduct has an incidental impact on speech or expression; the O'Brien Test is used. It is an intermediate scrutiny test holding that expressive conduct can be regulated when: - The government has a constitutional power to promulgate the law; - There is an important or substantial governmental interest; - The interest must be unrelated to the suppression of speech; - The restriction is no greater than necessary to further the government's interest.

Wisconsin v. Mitchell

[states can enact tougher penalties on actions that are evidenced to be motivated by the victim's membership in a protected class] Facts - gang of black boys beat up a white kid. Black boy was convicted of aggravated battery because he intentionally selected his victim based on his race, a violation of the state's hate crime statute that provided for enhanced penalties for race-motivated crimes. Holding - Rehnquist majority: Court upheld the WI statute - Court makes a big distinction between expression and conduct. Conduct that is illegal (battery) is outside 1st Amendment protection. Mitchell argued that he was being punished for his thoughts and message, like RAV. The court distinguishes RAV and upheld the enhanced penalty because they felt WI was punishing the kid for his mens rea/motive (intent to commit the crime), not for his viewpoints/thoughts (anti-white).

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission

[the commission's actions were openly hostile and used as the basis/reason for enacting the law mandating Jack Phlips to create the wedding cake he objected to on religious grounds] [Smith requirement to be neutral was violated based on the evidence presented in the case] Adjudicatory proceedings against a person for unlawful discrimination must give neutral and respectful consideration to the person's defense of sincere religious motivation. In protecting the civil rights of same-sex couples, the government also must protect the rights of those who object to same-sex relationships on religious or philosophical grounds.

Yates v. United States

court distinguishes between abstract doctrine and advocacy directed at promoting unlawful action. Harlan majority shifts focus from imminent danger to content/context argument and looks to subjective intent of the advocate instead of the potential impact. Facts - Several lower ranking members of the Communist Party were convicted of conspiracy under the Smith Act. Court overturns their convictions and adopted a narrow interpretation of the Smith Act The Court distinguished between abstract doctrine and advocacy directed at promoting unlawful action. *In this case, the defendant's only argued that the idea of overthrowing the government is legitimate; they didn't advocate any concrete action (specific acts of future violence) as the defendants in Dennis did.

Garcetti v. Ceballos

district attorney/discrepancies in the warrant request. Kennedy majority - a balancing test is required. The speech here is made as a function of his job, so it is not eligible for 1st Amendment protection. Stevens dissent - it shouldn't matter what the employee's job description is, this ruling will encourage public employees to go public with concerns rather than talking to a supervisor. Souter dissent - public access to information pertaining to public health/safety outweighs any concerns about efficiency in the office. Breyer dissent - lawyers have an obligation to speak at times under the ethical standards of their profession. Where that is the case, gov't interests take a back seat.

White Primary Cases

elections are traditionally and at their core part of a function performed exclusively by the State, therefore still state action even if delegated to private group

International Society for Krishna Consciousness v. Lee

airports are a non-public forum; not a place where people traditionally communicated tides; use reasonableness standard; upholds anti-solicitation ban, but overturns anti-leafleting ban because it isn't reasonable. Rehnquist majority: strikes down the ban on distribution of literature in airport terminals. Airports are not a public forum, so only a reasonableness test needs to be satisfied. O'Connor concurs: this is not a public forum, but would come to that decision by inquiring whether the restriction is reasonably related to maintaining the multipurpose environment that the port authority has deliberately created. Kennedy concurs: Airport terminals are a public forum, but the solicitation ban is proper as a time, place, manner restriction. Souter concur/dissent: would also strike down the solicitation ban as it does not leave open ample channels of communication.

Goldberg v. Kelly

began "due process revolution' - welfare benefits are an entitlement/property rights; so gov. must give notice and hearing before deprived. - Issue - Are welfare benefits rights or a privilege for purposes of determining whether they satisfy the "property requirement" for procedural due process? - Holding Brennan- Welfare benefits are an entitlement; thus a property interest 1. Government must provide notice and an adversarial hearing before terminating a person's welfare benefits. 2. Court distinguishes welfare benefits (property) from social security benefits (Mathews; mere expectation) because they are based on need. 3. Even though the government doesn't have to give welfare, once they start giving welfare benefits, they create a property interest in the benefits and they cannot be taken away without due process.

Rubin v. Coors Brewing Co.

cannot prevent beer makers from printing the alcohol content on the label. Doesn't advance the gov.'s interest of preventing strength wars because it only includes beer (not wine, malt liq.), and beer makers can include % in ads.

Ferber v. New York

child porn is always obscene because (1) production of films leads to child abuse; (2) psychological ramifications - fosters pedophilia

Lynch v. Donnelly

city set up a Christmas display with a nativity scene; Burger majority - employed the Reindeer Rule. If religious symbols are mixed with secular symbolism in appropriate context, it's okay. O'Connor concurs - using the Endorsement Test - gov. didn't have the purpose or effect of endorsing a particular religion; just celebrating a public holiday w/traditional symbols. Brennan dissent - When officials appear to support/participate in a particular religious element of an otherwise secular event, the Est. Clause is violated. These displays place the prestige, power, and financial support of the state behind a particular faith.

Threshhold issue

if no state action, then 14th Amendment protections don't apply

Monopoly Status Test

just because government heavily regulates a matter (even to the point where it establishes a monopoly) this does not necessarily mean state action is established. See Jackson, Rendell-Baker v. Kohn

Bethel School District No. 43 v. Fraser

kid made sexual innuendo during assembly, suspended; this wasn't political speech like Tinker, schools have an interest in teaching civility; schools are not a traditional public forum. Burger majority.

Whitney v. California

lady guilty by association with Communist Party; Sanford majority - because group action is more dangerous to peace than single utterances, it is not an unreasonable exercise of police power. Brandeis concurs writing danger must be (1) clear - not remote or insignificant and (2) present - emphasizes imminence of the danger. If danger not imminent, there is time for counter speech. Facts - Whitney attended a Communist Labor Party meeting. The majority of the delegates advocated for violence, but Whitney did not. The group was preparing for action in the future Court upholds Whitney's conviction under the Criminal Syndicalism Act holding the state can exercise its police powers in punishing speech that threatens the public welfare. Case similar to Gitlow in that speech is being punished during peacetime. **Brandeis Concurrence - shows influence of Brandeis/Holmes CPD Test: expounds test: Clear - danger can't be remote/insignificant; must be substance that the danger exists. Present - emphasizes imminence of danger. If danger not imminent, there is time for counter-speech to quell the danger.

Reno v. ACLU

laws regulating the access of indecent and sexually explicit content to minors must be written in such a way that they don't infringe upon the rights of adults who have constitutionally protected rights to hear the material. Stevens [CDA case: the government may not regulate the transmission and display of content on the internet unless it does so for a compelling purpose and uses means that are narrowly tailored to that purpose] [CDA fails to provide any definition of what constitutes as indecent and does not provide any narrowing application language (overbroad) that would justify upholding the law]

Schenck v. US

leaflets mailed that said draft was unconstitutional; Holmes writes that context is everything, can't yell 'fire' in a crowded theatre; first articulation of the Clear/Present Danger test. Modern 1st Amendment jurisprudence starts with Schenck. Facts - Schneck mailed leaflets to men stating the draft was a violation of the 13th Am. They were convicted of obstructing the draft. Court upheld the conviction. Holmes writes that we must look to the circumstances of the speech; uses the famous 'shouting fire in a crowded theatre' analogy. Context is everything First articulation of the Clear and Present Danger test - "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."

Abrams v. United States

leaflets urged strike at munitions factory; Holmes dissent only enduring opinion, creates 'Marketplace of Ideas' theory, argues that the speech didn't create a present danger of immediate evil and speaker didn't intend to create danger. Facts -Russian immigrants convicted for distributing leaflets urging a strike at a munitions factory to protest against the war against the communist revolutionaries in Russia Court upheld the conviction of the Russians; publication during war not protected by 1st. *Holmes' Dissent becomes extremely famous and influential**First formulation of the 'marketplace of ideas' theory - [cite for this proposition] "The best test of truth is the power of 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." Argues Abram's speech was harmless; only an expression of opinion, not incitement. First articulation of the Clear and Present Danger Test (CPD) 2 elements: The government can criminalize speech: 1. If it creates a present danger of immediate evil, or 2,. If the speaker intends to create that danger/evil

Walker v. Texas Division., Sons of Confederate Veterans

license plate case. Court determined speech on license plate was government speech not protected by 1st Amendment.

Joint Participation with private actor

lunch counter cases during civil rights movement; police called to enforce racial discrimination. IS state action.

Osborne v. Ohio

mere possession of child porn can be criminalized

Pickering v. Board of Ed

remains the primary test to this day. If a state employee is speaking as a private citizen and the speech is regarding a public matter it must be protected. The Court held that a teacher couldn't be dismissed for printing a controversial letter in a newspaper, absent a showing of knowledge of the falsity or reckless disregard as to the falsity. Test - if the speech is a matter of public concern a balancing test is used - must balance the interest of the state as an employer and its need for efficiency and profit with the interest of the individual as an employee - is the employee speaking as a citizen or as an employee.

Meyer v. Nebraska

right to livelihood, rt. to study a particular subject or foreign language McReynolds- A state may not prohibit the teaching of foreign languages to a young child in school when such teaching has been requested by the child's parent because this interferes with the fundamental liberty interest of a parent to control his or her child's education.

Hazelwood v. Kuhlmeier

principal wouldn't let kids publish articles in school newspaper because about teen pregnancy; when a school sponsors speech, they make reasonable restrictions as long as the restriction relate to legitimate pedagogical concerns. With regard to curriculum, schools are a non-public forum. White majority.

State Acts in reaction to private decision maker

private MD's on committee funded by gov't; decides based on determination of committee. NOT state action. Blum v. Yaretsky

Freedman v. Maryland

procedures for obscenity claims: [(1) board has the burden of showing the film is unprotected expression (2) only a judicial proceeding will suffice to impose a valid and final restraint on a film showing (3) state either by statute or authoritative judicial construction must afford the exhibitor a procedure under which he is issued a license or in which the board is required to go to court to justify restraining the film]

Exercise of Professional Judgement

public defender exercised professional judgment and declined to bring appeal he deemed frivolous. NOT state action! Polk County v. Dodson

Pierce v. Society of Sisters

parents have a right to choose where to educate children McReynolds- The Fourteenth Amendment protects the liberty of parents and guardians to direct their children's education. Children are not owned by the state. Unless a state can show a reasonable relation between legislation and a legitimate state objective, the state may not curtail its citizens' constitutional rights. No reasonable relationship is shown in this case. There is no evidence that private education is harmful. Thus, the Act unreasonably interferes with a constitutionally protected liberty interest.

Trinity Lutheran Church v. Comer

precluding churches from a grant program that provides public funds to resurface playgrounds violate the free exercise clause—distinguished from Locke because the prohibition in Locke targeted the pursuit of ministry preparation not merely the religious status itself]

Rankin v. McPherson

when a statement is not disruptive to the workplace or made in public, it is not harmful enough to justify violation of the employee's constitutional rights.

Sham Test

when private entity is being used as a ruse to avoid being deemed state action (i.e. to circumvent the system) it may be deemed state action. Beaconsfield

Entwinement Test

where a private entity is so closely connected to the state that it is entirely entwined, it is likely to be deemed state action. (Brentwood Academy v. Tennessee)

State Acquiescence/Authorization Test

where self-help is sanctioned by the state, this will not necessarily/usually be enough to establish state action. (Flagg Bros v. Brooks)

main exception to state action requirement

situations where private conduct has to comply with the Constitution

Connick v. Myers

slightly limits Pickering test to speech on a matter of public concern, as opposed to merely issues of public interest. Speech on personal matters is not afforded these protections any more than they are in non-gov't employment.

Public Function Test

state action when private individuals perform functions traditionally and exclusively reserved to states. (Jackson v. Metro Edison, Marsh v. Alabama, White Primary Cases)

Regulation/Licensing/Funding by State Test

this is generally not enough to establish state action (see Moose Lodge v. Irvis), but it becomes state action where enforcement of those regulations results in a violation.

Substantive Due Process- Right to Privacy: Abortion and Contraception

through substantive due process, the Court has recognized certain rights protected by the "liberty interest" of the 14th Amendment's Due Process Clause. 1. Some of these rights have been declared "fundamental" - require strict scrutiny 2. Others are just liberty interests but not fundamental rights - probably rational; not totally sure, but something less than strict-scrutiny (Lawrence)

Lochner v. New York

- Facts : Lochner convicted of violating a NY statute prohibiting employers from making workers work over 60 hours per week or 10 hours per day. - Procedure - at each level, Lochner is convicted. - Issue - Lochner argued that the restriction on hours one could work in a bakery was unconstitutional because it was class legislation; that is, it singled out bakers. - Holding (Peckham) - NY statute was "class legislation" and interfered with the private right of contracting. 1. Peckham says the statute interferes with the right of contracting; endorses the Laisse-Faire economic view that government should stay out of business and the economy should regulate itself. 2. Court holds that the State has to show that its right to use police powers outweighs the right for private parties to enter into contracts. Fails to meet this burden. 3. **Stands for the proposition that - Redistribution of wealth is not a permissible end. Social legislation must be struck down. 4. Ends not justifiable. Peckham saw the law in Lochner as a 'naked wealth transfer' and therefore found the 'ends' of the legislation unconstitutional. 5. Viewed the ends as an attempt at social-welfare (class) legislation; not a legitimate exercise of the State's police powers to protect health/welfare/safety of citizens. Dissent - Harlan - Flips reasoning of majority; presumption in favor of State's valid execution of police power, and up to Lochner to prove that the right to free contracting outweighs it.Holds the laws were passed to protect the health of the bakers, thus the law targeted a permissible end. Dissent - Holmes**(famous) - This decision is simply an imposition of a particular economic view by the Court. - The Constitution is not intended to embody 1 particular economic theory. - Congress should decide which economic theory to abide by - they are elected and held responsible by the electorate.

Muller v. Oregon

- Facts: Oregon passed a law which capped the maximum hours a woman could work during a day at 10. Muller was a laundry worker who wanted to work more. - Holding Brewer: constitutional 1. An aberration in the Court's holdings during the Lochner Era. 2. The Court upheld the maximum hour law citing women's generally weaker physical structure and special role in society of being child-bearers. 3. This is clearly class-legislation; that was upheld during the peak of the Lochner Era (1905-1937ish) 4. Brandeis Brief - Brandeis submitted a brief with stats that show that women need special treatment b/c in order to produce and raise healthy offspring she cannot be working too many hours.

Non-Public Forum

- Government property that is not open to the public for expression. Ex. military/jail - Test for all government restrictions on speech = the regulation must be reasonable and viewpoint-neutral. See Arkansas Educational TV, International Society

Deprivation of right

- In some cases, post-deprivation process is sufficient (i.e. safety reasons, taking drunk drivers off the road, etc.) as long as there is minimal delay. - If process is post-deprivation, must prove actual, lasting harm to be entitled to suit if the process did take place.

Burwell v. Hobby Lobby

- Majority opinion of Justice Alito (joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas) [for profit private companies can deny employees contraceptive access under RFRA because the contraceptive requirement creates a substantial burden that is not the least restrictive means by which to meet the interest] [in other words, there are other ways by which to provide contraceptive use to these employees without the private employers being mandated to provide it for them against their religious beliefs] - RFRA moved beyond the pre-Smith case law Concurring Opinion of Justice Kennedy: The HHS regulations serve a compelling governmental interest in the health of female employees. However, as the Court concludes, the regulations are not the least-restrictive means of serving that interest. Dissenting Opinion of Justice Ginsburg (joined by Justice Sotomayor and Justices Breyer and Kagan except as to one part) Since plaintiff fail on the merits, no need to decide and do not decide whether for-profit corporations or their owners can bring claim under RFRA Otherwise join Justice Ginsburg dissent: substantial effect on women generally

Ginzburg v. United States

- One of the most controversial obscenity cases - Ginzberg's publication, EROS, featured some explicit material but also photos described as "outstandingly beautiful and artistic"; ads announcing publications contained no erotic or explicit pictures or foul language - SC held that in "close cases" evidence of commercial exploitation of erotica solely for the sake of their prurient appeal" may be decisive in the determination of obscenity - Court found an emphasis on prurient appeal in Ginzburg's promotional efforts - Brennan: Court found pandering because Ginzburg's enterprise was permeated with the "leer of the sensualist" - Emphasized eroticism of his publications, not their literary value - Some states amended their obscenity statutes to outlaw the commercial exploitation of erotica solely for the sake of its prurient appeal

Traditional Public Forum

- Place where people historically and traditionally go to communicate their ideas to the public. Ex. streets, town square, park, sidewalks - Content-based restriction= Strict Scrutiny - regulation must be narrowly tailored to compelling gov. int. - Content-neutral time, place and manner restrictions = Intermediate Scrutiny

Free Exercise Clause

- Religion is not a personal philosophy (like Thorough), rather it is a belief. - All that the Court requires is a "sincerely held religious belief" The Court doesn't want to get into the business of deciding whether that belief is central to the religion, is required by every member of that sect, etc. - The Court has said "you can be a religion of one" - The Court requires that whatever action that you want protected must be a sincerely held belief required by your religious beliefs General - all the court requires is a sincerely held belief; you can be a religion of one; with that said, before 1990, the Court only struck down 2 laws using strict scrutiny - unemployment compensation laws and application of compulsory education laws to Amish.

Limited Public Forum

- Somewhere between a limited public forum and a designated public forum; government designates a particular type of forum and opens it up for a particular topic or category of speech consistent with the purpose of the property. - Ex. public school newspapers; can have restrictions that articles about school - Here, content-based discrimination is allowed; but viewpoint discrimination isn't. - Test = varies by court on whether to use strict scrutiny or reasonableness. - The difference between limited public forums and non-public forums is the degree to which outsiders are let in.

Griswold v. Connecticut

-1. Facts - Griswold is the director of Planned Parenthood. The organization counseled couples on how to use birth control and passed out contraceptives to married people. This violated a CT rule which forbade the use of any device to prevent conception and prevented counseling about contraception. Defendants found guilty. 2. Issue - Is there a right to privacy in the Constitution? 3. Holding - Douglas Majority: Yes - Penumbral theory of right to privacy - The Court does not invoke Lochner as economic substantive due process is dead. Rather, the Court cites a few cases decided during the Lochner era to show that non-economic substantive due process is still alive. - These cases show that the 1st Amendment protects education and family: Pierce v. Society of Sisters - upholds the right of parents to educate their children in a school of the parent's choice Meyer v. Nebraska - upholds the right to study a particular subject or foreign language (German) - Penumbral Rights - The right to privacy is found in the "penumbras" (shadows) of the 1st Amendment. These penumbras cast shadows that create "zones of privacy" which are found in other Amendment's - 1st, 3rd limit on quartering soldiers, 4th limit on search and seizures, 5th limit against self-incrimination, 9th Concurrence - Goldberg - Argues that the 9th Amendment protects privacy. 9th Amendment passed by Madison who didn't want a Bill of Rights for fear of being bound by a list of enumerated rights. - "The Enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people" - The 9th Amendment has never been the basis of a majority opinion. Its largely ignored Concurrence - White - When there is an encroachment on personal liberty, the state must show a compelling governmental interest for the law. - This law wont even pass rational basis - the government's proffered goal is preventing illicit sexual relationships; preventing birth control doesn't further this end. Concurrence - Harlan - Endorses the concept of "ordered liberty" a natural law theory. - Tradition holds that marriage is an institution afforded a great deal of privacy. This gives us insight as to what fundamental rights are protected. Dissent - Black / Stewart - There is no general constitutional right to privacy. - Right to privacy is limited to certain times and circumstances which are specified by certain Amendments in the Bill of Rights. - The 9th Amendment isn't meant to broaden rights or allow the Court to create them.

Planned Parenthood v. Casey

-Facts - PP facially challenged the constitutionality of PA's abortion law which required: 24 hour waiting period before abortion, spousal notification, consent from a minor's parent or judicial bypass, the dissemination of truthful abortion information, and requirements that hospitals keep confidential reports on abortion statistics. Holding: (O'Conner, Kennedy, Souter) PA law upheld except the spousal notification requirement - Discussion of stare decisis - 3 criteria for using stare decisis 1. Reliance interests - women have relied on right to have abortion 2. Workability - Court thought Roe was still workable 3. Is there a change in the facts or doctrines - No, not like Brown or Lochner. Doctrine has been followed in-between; developments in Technology don't change the central holding of Roe - *The Court re-affirmed the central holding of Roe (3 parts) 1. The recognition of the right of a woman to choose to have an abortion before viability and obtain it without undue influence from the State 2. Confirmed the State's power to restrict abortion after viability if the law contains exceptions for the mother's health 3. The State has legitimate interests at the outset of the pregnancy in protecting the life of the mother and the potential life of the fetus. - **Rule/Central Holding -abortion standard - a law can neither have the purpose or effect of creating an undue burden to a woman's right to choose to have an abortion of a non-viable fetus. - ***The Court explicitly rejected the trimester framework of Roe. Evaluation of the PA statute: 1. Dissemination of information by doctor - more info can never be a bad thing; as long as truthful, it makes an informed decision maker. Overrules Akron I 2. Waiting Period - O'Conner writes that on its face, this is not an undue burden; but if this was an as-applied challenge, a woman could demonstrate its an undue burden (ex. long drive from country to city abortion clinic, have to stay overnight, discourages abortions for rural folk) 3. Spousal Notification Requirement - Struck down 4. Minor notification with judicial bypass - State can require consent of one parent as long as there is a judicial bypass; allows minor to goto an impartial judge who will determine whether its in the best interest of the child to have the abortion. 5. Reporting requirement - upheld because info kept confidential. Undue Burden Standard - a law can neither have the purpose or effect of creating an undue burden on a woman's right to choose. Case: upheld 24 hour waiting period, parental notification w/ judicial bypass, dissemination of truthful info, hospitals keep stats; struck down spousal notification Stevens concurs, rejecting the info provision and 24-hour waiting period, because the state's interest in the unborn fetus is not constitutionally based, but woman's liberty right certainly is. Blackmun concurs, re-emphasizing commitment to Roe and intention to stick with trimester framework he laid out there. Privacy concerns are central, but gender equality is also important. Scalia (dissent) - Nothing in the Constitution supports an abortion right. Rehnquist dissent, Roe was wrongly decided and should be overturned regardless of stare decisis. An all-encompassing right to privacy is not in the constitution.

Criticisms of Roe's Methodology

1. Framer's Intent - the Court is stretching the idea of liberty too far beyond what the Framer's intended to mean 2. Trimester analysis is flawed - changing in technology will change this 3. Violates judicial minimalism principals - Courts should stay out of this issue 4. EPC analysis should have been employed to legalize abortion - coerces only women to continue pregnancy, bear financial burden, not men.

Abortion History

1. In the 18th century abortion wasn't a big deal; decision between woman and midwife 2. During Victorian Era, abortion became taboo - thought to encourage illicit sex 3. In the 20th century, most states had banned abortion; but some allowed it. 4. Two events in the 1960's that impacted the abortion movement: Women's rights movement - assert independence, want control over their lives Polydemide - morning sickness drug thought to be safe, caused birth defects, women wanted a way to terminate pregnancy without going oversees. 5. Blackmun was picked to write Roe because: he worked for Mayo clinic, was surrounded by women in his life, and was a Catholic.

Procedural Due Process 2 part Test

1. Is process due? To answer, ask whether there is a constitutionally protected life, liberty or property interest at issue.If no - end analysis. If yes - move to second question. 2. What process is due? - If it is a property interest - look to state law (contract, tort, state constitut.)Property is something to which there is an entitlement; not a mere expectation. Schooling - a child has a property interest in his right to go to school, because of compulsory education laws. Employment - a tenured professor has a property interest in her job; but an at-will employee doesn't. - If it is a liberty interest - look to the federal constitution.General harm to reputation is not a liberty interest.Liberty Plus - some things may not be a full liberty interest (ex. reputation), but if you add something to that which isn't quite a property right (being fired from a job you are not entitled to), it may make up a protectable right.

Selective Incorporation

1. The Bill of Rights is only applicable to the federal government. 2. The Bill of Rights is incorporated against the states through the 14th Amendment's Due Process clause. Within "due process" lay certain basic, fundamental rights. 3. The Court, through a series of decisions, has determined which rights are fundamental. Not all of the Bill of Rights are considered fundamental rights and thus incorporated against the states 4. NOT incorporated - 2nd's right to bear arms , 3rd's quartering of soldiers, 5th's grand jury requirement, 7th's right to jury trial for civil cases, 8th's against excessive bail) 5. Justice's Views -> Black called for total incorporation; Thomas holds the Establishment Clause is not incorporated.

Right to Privacy Generally

1. The development of unennumerated rights has proved controversial. 2. The Constitution doesn't expressly provide for a right to privacy. 3. When the Court adopts a policy of incorporating unennumerated rights, they will be accused of Lochnarian and natural law jurisprudence

Types of Process Due

1. The type of process due varies on the context of the situation. 2. Generally, one must have a pre-deprivation hearing - there must be a hearing before your rights are deprived. In special circumstances (imminent harm) there can be a post-deprivation hearing; that is, the person may have their rights deprived and have a hearing after-the-fact. 3. Ex. in some cases there only has to be a hearing before your rights are deprived, in others there has to be notice, an opportunity for the accused the respond, and then action can be taken. 4. Gotz v. Lopez - defined due process in schools: - Minor offenses - notice must be given to the student that they are in trouble, the student must have an opportunity to respond, then the school can take action. - Major offenses - require a full hearing, impartial decision maker, right to an attorney, and right to appeal. 5. In prison and military settings, people have less procedural due process rights because of the nature of the institution. 6. The Court must balance the private interest (ex. detaining a kid for 1 hour) of the individual with the public interest (ex safety of students in school).

Van Orden v. Perry

10 Commandments on TX Capitol grounds, stood for 40 years, 1 of 22 monuments. Plurality of court upholds the constitutionality of the display. When considered in context, a state action with religious undertones is permissible if the action conveys a historic and social meaning rather than an intrusive religious endorsement. Rehnquist plurality - Not every display of religion by gov't is per se unconstitutional. Must consider the nature of the monument and nation's history. Scalia concurs - nothing unconstitutional in a state favoring religion generally, honoring god through public prayer, or venerating the 10 commandments. Thomas concurs - not coercion so does not violate the Est. clause. Just don't look at it! Breyer concurs - Must use legal judgment, fact intensive inquiry. Religious displays are not per se unconstitutional. Stevens dissent - there should be a strong presumption against religious displays. Est. Clause should be interpreted based on what is valid today, not history. Souter dissent - no complaints = irrelevant. So much works against a person complaining that lack of vocal opposition is not determinative. This is religious text, so is a violation.

McCreary County v. ACLU

10 Commandments was displayed on a county courthouse in KY; court strikes this down. Souter majority - Reasonable observer has a reasonable memory. Looking at the history of this display, it reinforces religion and is therefore unconstitutional in a court house.Non-secular purpose is permitted, but secular purpose must predominate. O'Connor concurs - we live in a more pluralistic society than the founders, so constitutional interpretation should reflect that. Focus on divisiveness. Concurring (Stevens) Argues that religion is never allowed in the public sphere; takes issue with Scalia's opinion. He is appalled by Scalia's preference to monotheism over other religions. Scalia argues that some preferentialism is allowed; invocation of a monotheistic God in public is OK. The Lemon test should be eliminated. - Note a significant change in Scalia's jurisprudence. - Scalia was previously a strict non-preferentialist, reasoning that the Establishment clause was passed to prevent sectarian bias, so the government should prefer one sect to another. - Now, Scalia argues that non-preferentialism doesn't mean you have to show neutrality by never allowing religion in the public sphere. He argues that religion in the public sphere is allowed to invoke or reference God - this allows a sectarian bias for monotheism over other religions or non-religions. - Scalia argues the state can take cognizance of the fact that most Americans are mono-theistic

Roe v. Wade

2. Facts - Roe wanted to have an abortion in TX where a statute made it a crime to procure an abortion except to save the life of the mother. Roe was poor, unmarried, and didn't have enough money to get to another state to have a safe abortion. Holding - (Blackmun) The TX statute was struck down because it was overbroad; it made no distinctions between abortions during the first or later trimesters. 1. Rule - The right to privacy found in the 14th Amendment's Due Process clause protects the right for a woman to decide whether to terminate her pregnancy; but the state is allowed to regulate abortions at various stages in the pregnancy. 2. The historical reasons for criminalizing abortion are outdated: - Victorian social concern to discourage illicit sex - outmoded - Abortions were hazardous for women - advances in technology changed this - State's interest in protecting fetus / unborn life - state still has this interest; but it is limited. 3. Abortion is a fundamental right; therefore the State can only limit such rights when they have a compelling governmental interest that is narrowly drawn. 4. The Court finds the right to an abortion using Substantive Due Process of the 14th - cites line of cases: Pierce (religious upbringing of children), Meyer (right to livelihood), Loving (interracial marriage), Skinner (gov. can't force sterilization), Eisenstandt/Griswold (contraception; choice of reproduction). 5. These cases represent the idea of "family relationships" and give rise to the idea that a woman can control her family and reproductive destiny. 6. The state essentially has two interests that become more important at different times: An interest in maternal health. An interest in the protection of potential life (Court doesn't decide the underlying question of when life begins: conception or birth; refers to fetus as 'potential' life) 7. Trimester Framework: - 1st Trimester - abortion is safer than normal childbirth; state has a minor interest and can lightly regulate abortion - ex. 24 hour waiting period, minor notification - 2nd Trimester - abortion no longer safer than childbirth; the state may regulate abortion to the extent that the regulation furthers the interest of maternal health. - 3rd Trimester - the state has a compelling interest in maternal health and can ban abortion for the most part (must have exception for life of mother). 8. The state's interest in the health of the potential fetus becomes compelling at the point of viability (when there is possibility for meaningful life outside the womb) - at this point, the State can ban abortion to save potential life, unless the life of the woman is at risk. Douglas - Concurring: Woman should have autonomous control over her life. Freedom of choice in the basic decisions of one's life concerning marriage, divorce, procreation...all protected by the liberty component of the 14th Amendment's Due Process clause. Stewart - Concurring: He dissented in Griswold, so his shift is important. Accepts that Griswold was decided under the 14th Amendment's substantive due process clause; he now agrees with it. White - Dissent: The State's right to regulate abortion trumps the judiciary; this is a policy decision which should be left to the legislature Rehnquist - Dissent: TX statute meets rational basis review (holds privacy not a fundamental right, so doesn't get strict scrutiny)

Reed v. Town of Gilbert

A restriction on speech that is content-based on its face is subject to strict scrutiny regardless of the government's benign motive or justification. The Town of Gilbert (defendant) passed an ordinance regulating the posting of signs in the town. The ordinance created different categories of signs, including "Ideological Sign[s]," "Political Sign[s]," and "Temporary Directional Signs Relating to a Qualifying Event." The ordinance applied different restrictions to each category. The ordinance is content-based on its face because the level of the regulation a sign receives is entirely dependent on the message the sign contains. The ordinance is thus subject to strict scrutiny regardless of any benign motive or justification on the part of the town. Ordinance was found to be unconstitutional not narrowly tailored to serve their interests.

Wisconsin v. Yoder

A state law mandating school attendance by children 16 and under is unconstitutional as applied to Amish children whose parents take them out of school after eighth grade.

Historical Background- 3 views

Accomodationists: The Establishment Clause meant to forbid the establishment of an official state church; therefore there should be an absolute prohibition of preferences showed by the governmentModern scholars such as Justice Scalia argue that the Establishment clause was meant to forbid government from preferring one sect to another. Separationists: Jefferson and Madison endorsed this view - both religion and the state will suffer when they are mixed together; must keep them separate. Shows reflection of the experience of the Early Colonists who fled religious persecution. Middle Course: There are some circumstances where you can have religion in the public sphere, but those circumstances are determined by the factual context of the issue

United States v. Eichmann

After Johnson, Congress tried to pass the Flag Protection Act, but it was again shot down by the court by the same reasoning.

Marsh v. Chambers

Burger- prayer at the beginning of legislative session serves a historical ceremonial purpose; doesn't advance religion; legislators are adults with freedom to leave

Allegheny County v. ACLU

Blackmun allowed the menorah next to the X-mas tree, but struck down the nativity scene which sat by itself on the courthouse steps; applied the Endorsement Test, also led to the 'Reindeer Rule' Kennedy diss.- endorsement test is flawed, should use coercion test, which this passes. Facts - this was two cases. One in which a crèche was displayed on the Allegheny County Courthouse steps by itself. The other display was a Chanukah menorah placed in front of the City-County Building right next to a Christmas tree. Holding (Blackmun) - allowed menorah, struck down crèche - Blackmun applied the Endorsement Test. - He found the critical difference to be that the menorah was surrounded by other kinds of Christmas displays; this made it OK. The singular nativity scene at the foot of the courthouse violated the Establishment Clause. - This has led to the Reindeer Rule - if you have a display that is circled with all kinds of other stuff (Santa, reindeer, Christmas trees, candy canes), then its OK. Dissent (Kennedy, Scalia, Rehnquist) - Kennedy argued that the standard should be the Coercion test. Scalia thought this was a good test; this is what made him so mad when Kennedy used the coercion test against the non-separationists in Santa Fe.

Morse v. Frederick

Bong hits for Jesus case. Roberts majority - Tinker established that student expression must not be restricted unless it is disruptive, but Fraser established that there is a distinction between political vs. offensive, non-political speech. Should defer to the school's interpretation of the banner. Thomas concurs - The Tinker standard doesn't apply and should be eliminated. Alito concurs - ruling is narrow, only restricts speech that a reasonable observer would interpret as advocating illegal drug use. Breyer concurs - this case should have been decided on qualified immunity grounds. Stevens dissents - content based censorship should be subjected to strict scrutiny.

Whole Women's Health v. Hellerstedt

Breyer- Relying on Casey, the U.S. Supreme Court struck down a Texas law that imposed onerous operating requirements on abortion clinics, including requirements that clinics have the same facilities as ambulatory surgical centers and that doctors have admitting privileges at a local hospital. See Whole Women's Health v. Hellerstadt, 136 S. Ct. 2292 (2016). As Justice Breyer explained for the Court, these requirements imposed an undue burden because they dramatically curtailed the number of doctors in the state who could lawfully perform abortions without a sufficiently compelling medical justification for doing so.

Flagg Brothers v. Brooks

Brooks evicted from her house, her property was seized by the police and placed in a private warehouse. A statute authorized the warehouse to impose a lien and foreclose if she didn't pay to pick it up (no due process). Is the warehouse's sale of the goods an action attributable to the state? Rule - Eviction and storage is not state action; Flagg Brother's actions may not be attributable to the state. - NY did not delegate a power exclusively and traditionally reserved to the states (solving disputes). There were many options to solve the dispute. - The dispute did not have to be settled by the sale; the owner could have brought an action for replevin or sued for damages. Rehnquist majority: eviction and storage dispute are NOT state action even though state delegated authority to another entity. That entity is only deemed a state actor if the action is normally exclusively reserved for the states. Did not compel, only permitted. Stevens dissent - the state should control nonconsensual deprivation of private property and should be subject to due process. Storage facility's authority to sell these goods is derived solely from the state by a statute that permits it.

Paris Adult Theatre I v. Slaton

Burger majority, no right to show obscene movies to consenting adults in a place of public accommodation. [states have an interest in the quality of public life and the total community environment, the tone of commerce in the great city centers, and public safety itself. Regarding the last interest, a congressional report actually notes the existence of a link between obscene material and crime. Thus, the state legislature can reasonably assume, based on this report, that the reading of obscene books and the watching of obscene displays of conduct could lead to corruption and anti-social behavior]

Abington School District v. Schempp

Clark, majority: prayer in public school may not be initiated, encouraged, led or required by a teacher or student in a public school. Can accommodate, but not so much as to reach the point of entanglement. Brennan concurs - ruling is correct, but should not be read to imply that other involvements of gov't and religion are per se unconstitutional.

1st Amendment- Commercial Speech

Commercial speech was traditionally unprotected in the early 20th century, but there has been a major transformation in the law and commercial speech has received increasing protection (Central-Hudson = intermediate scrutiny; now trend toward strict-scrutiny - 3 justices support this position in 44 Liquormart) Defined - Commercial speech is speech which proposes a business transaction. The modern view is to look at commercial speech as speech which informs consumers. Until VA Board of Pharmacy, commercial speech was a category completely outside protection of the 1st Amendment. (Christensen) The 1st Amendment was thought of as protecting political speech and public deliberation; not commercial transactions . Themes that emerge from commercial speech cases: The right of the public to have information (VA Pharm, Liquormart) Protect the public from intrusive or overreaching information (Bates) State cannot use advertising restrictions to encourage or discourage otherwise legal behavior

Religious Freedom Restoration Act (RFRA)

Congress passed a law attempting to effectively overrule aspects of Smith (which of course they cannot do), and re-instating the pre-1990 Sherbert strict scrutiny test for any neutral law of general applicability. So, under RFRA, any law whether facially neutral or one that targets religion specifically, would get strict scrutiny.

Structure of Speech Regulation generally

Content based restrictions are subjected to strict scrutiny (compelling governmental interest narrowly tailored); meaning they will normally be struck down. A restriction is content-based if it aims at the communicative impact of the expression. To determine whether the law is content-based the Court will analyze it facially, and then consider the intent. 1. Unprotected categories - the regulation will probably survive strict scrutiny. Ex. obscenity, fraud, defamation, subversive speech, fighting words (but, see RAV) 2. Protected categories - content-based regulation presumed to be unconstitutional. The regulation will only be sustained if it meets strict scrutiny. Three Part Test to allow a content-based regulation: 1. Regulation serves a compelling governmental interest 2. Regulation is narrowly tailored to serve that interest 3. Government must leave open alternative channels for communicating that info Content v. Viewpoint Discrimination - Content discrimination involves subject matter - Viewpoint discrimination involves perspective (Ex. law that states only Republican can have TV ads.) - Although some content-based speech regulation is allowed (if it passes strict scrutiny), virtually no view-point discrimination is allowed.

US v. Ballard

Douglas- Under the First Amendment, the judiciary may only inquire into whether a person sincerely holds religious beliefs, not whether those beliefs are factual. As part of showing the requisite respect for the freedom of individuals to believe, the judiciary may not attempt to establish the truth or reasonableness of a particular religious belief. Any conviction on these grounds could not be sustained.

Posadas v. Puerto Rico (1986)

Facts - Puerto Rico wanted to keep its citizens' participation in gambling at a minimum, so it regulated the advertisement of gambling in Puerto Rico. Holding Rehnquist - The Court upheld the regulatory scheme, applying the Central-Hudson Test. They found the regulations valid because the state had a substantial interest in paternalism - protecting its residents from vice. "Greater includes the lesser argument " à Rehnquist seemed to say that because PR could ban gambling all together, they could therefore highly regulate its speech. [this theory rejected by 44 Liquormart]

Facial v. As-Applied Challenges

Facial challenge - the law is unconstitutional as applied to everyone (one would argue a law is overbroad, even if the law was constitutional as applied to him) As Applied - the law is unconstitutional as applied to me in this particular case.

Mueller v. Allen

Fact - The Court upheld a law that provided for a tax deduction on parent's state income taxes for expenses incurred for tuition, textbooks and transportation of kids to school. Holding - the defraying of the costs is a secular and legitimate purpose. The Court holds that the beneficiary class is ALL parents. The deduction was available to all parents regardless of whether their children attended public or private school. Dissent - points out that the only one who are going to claim these deductions are those parents who have their children in parochial schools. Therefore, it has a direct and immediate effect on advancing religion.

Licensing in the Public Forum

Generally, licenses have to be content-neutral. - There must be standards for issuing licenses - Due Process Issues - there cannot be too much discretion given to the licensee-giver. Avoids vague/arbitrary discretion. - There cannot be a prerequisite for the permit that requires the permit-seeker to pay for the law enforcement which will be needed to protect a parade; the city can charge for the administrative costs of the license, but not the extra-security

Categorical Approach

Generally, the Court has adhered to the view that certain defined categories of speech are not protected by the 1st Amendment. There are exceptions. Categorical approach - certain defined categories of speech are not protected by the 1st

Cruzan v. Director of Missouri Dept. of Health

Facts - A Missouri law required clear and convincing evidence that a brain-dead person wanted or would have wanted life-support to be removed when they were competent. Holding - (Rehnquist) MO law upheld 1. The Court upholds the law requiring clear and convincing evidence (a high standard) of the patient's wish. 2. Note - Rehnquist took leadership role in this field; authored Cruzan, Glucksberg, Quill 3. There is a liberty interest at stake here, and a competent person should be allowed to refuse treatment. 4. Note - the Court does not call this a fundamental right and does not apply strict scrutiny. Rather, the Court balances the interest of the state in protecting life v. the liberty interest in the individual of choosing their own destiny 5. Withdrawing treatment is not the same as assisting death. - Forcing someone to stay on treatment is akin to restraint and invasion of bodily integrity. - *There is a right for a competent person to refuse life-saving treatment (Washington v. Harper) - When it comes to a minor, the state will always require that the child be given the treatment to save their life even if the parents object (even if object on Con. Law grounds such as religion). The state will make the child a temporary warden of the state and give them the treatment needed to save their life. - Vaccinations - Court has held that the State's police power to ensure the health of its citizens is enough to require mandatory inoculations, even against the wishes of the parents, unless the State allows a religious exemption (which many do) Concurring - O'Conner: She suggests either writing a living will (only as good as the situations you can anticipate) or giving durable health power (appoint someone to make decision for you) Concurring - Scalia: States once again that he doesn't believe in Substantive Due Process. Holds the Constitution doesn't apply in this case. There is no difference between passive and active action.This statute is valid because there is no history or tradition in this nation of allowing suicide. Scalia is scared about the State becoming a killer, or sanctioning suicide. Dissent - Brennan: The clear and convincing evidence standard is an unconstitutional burden. The burden is set too high. Dissent - Stevens: Concerned about the best interests of the patient being served - some people want to die to make it easier on their family emotionally and financially. He is worried the Court is only looking at the State's interest and not the patient's.

Rosenberger v. Rector and Visitors of UVA [Government subsidized speech]

Facts - A Virginia policy excluded religious organizations from its subsidy program for student publications. Holding - the subsidy program was held to be a Limited Public Forum, and the University engaged in impermissible viewpoint discrimination. The court held that the State couldn't deny funding based on the viewpoint of the publication (whether it be religion or some other viewpoint). The government in this situation is acting like the sovereign and restricting speech based on viewpoint. In Rust the government itself was the one doing the speaking. The government can decide whether or not to fund student publications, but it cannot decide which ones to fund. It must fund all or none. Important difference - this is not the government speaking like in Rust (government sponsored speech). This is private speech which is subsidized by the government.

44 Liquormart v. Rhode Island

Facts - A liquor store challenged a RI statute prohibiting any advertising of liquor prices except for tags displayed with the merchandise, not visible from the street. Holding - Statute unconstitutional; all 9 justices agreed. Rule - No blanket prohibition against truthful, non-misleading speech about a lawful product. The Court applies Central-Hudson Test and strikes the law down. The "greater includes the lesser" argument is rejected by the Court. Rejects paternalism - The court is now more and more taking the approach that, you're on your own in deciding what is good or bad. Its not the role of the state to place limits on the spread of this information unless it's fraudulent Thomas - Concurring - Absolutist view - would adopt a 'per se' rule against paternalistic regulations of speech. No regulation can be justified by the notion that government is "protecting consumers for their own good." Part IV - commercial speech cannot be misleading, but commercial nature does not automatically preclude protections. Stevens, Kennedy, Ginsburg Part V - ban is sufficiently related to the state interest as there is no evidence that it actually reduced liquor consumption. Stevens, Kennedy, Thomas, Ginsburg Part VI - You can't keep information from people. Stevens, Kennedy, Thomas, Ginsburg Scalia concurs - Central Hudson is the appropriate test, but this ruling is paternalistic. Thomas concurs - any attempts to dissuade the public from making legal choices by keeping them ignorant is impermissible.

Lovell v. City of Griffin

Facts - A statute forbade the distribution of literature of any kind without a permit. Defendant was convicted of violating the statute for distributing religious information. Holding - the Court struck down the law on its face - Court found the law unconstitutional because it gave the city manager censorship power. - This case illustrates the need to have standards whereby the governmental official can issue licenses in a non-arbitrary fashion.

Arkansas Educational Television Commission v. Forbes

Facts - Broadcaster held a candidate debate and limited who could participate (allowed the Dem. and Rep. candidates, but not the independent candidate, Forbes). Forbes challenged, holding that the TV was a public forum. Holding - The TV debate was a Non-Public Forum. Forbes could be excluded as long as it was reasonable and viewpoint-neutral because it was a journalistic/editorial decision.

Chaplinsky v. New Hampshire

Facts - Chaplinsky called the city marshal a racketeer and a fascist. He was convicted under a statute aimed at keeping offensive speech of city streets Holding: Murphy majority- Court upheld the conviction because the words were likely to provoke the average person to retaliate. Rule - Fighting words are not protected by the 1st Amendment Fighting words are of such little social value that any benefit derived from them is outweighed by the social interest in order and morality. Definition - Fighting words are words "by which their very utterance inflict injury or tend to incite an immediate breach of the peace."

Cincinnati v. Discovery Networks

Facts - Cincinnati wants the sidewalks to be less cluttered so they forbid commercial magazine racks, but not newspaper racks. Holding Stevens- ordinance overturned because the aesthetic benefit was marginal. Distinction between newspaper and commercial racks was meaningless. The Court refused to let the city use the protected status of commercial speech as the basis for regulation.

Cohen v. California

Facts - Cohen wore a jacket stating "F*** the draft!" in a state courthouse where women and children were present. He was convicted of disturbing the peace. Holding - Harlan majority: Court reversed the conviction finding the jacket was not obscene (because not erotic use of 'f***') and people could "avert their eyes." Rule - State cannot restrict speech simply because its offensive unless it is likely to incite lawlessness and violence. "F*** the draft" were not fighting words because they didn't offend one particular person or a class of people; didn't cause outbreak of violence. Even though children saw it, they were unlikely to be able to read jacket; not a captive audience so others in the courthouse could "avert their eyes" **This case shows that we protect the cognitive and emotional aspects of speech. The 1st Amendment extends to expression/appealing to people with emotive force. **Hate speech is generally protected. Blackmun dissent - this is well within Chaplinsky and should be decided in the same manner.

Virginia v. Black

Facts - Cross burnings. VA statute says that its unlawful to burn a cross with the intent to intimidate. Statute also said that all cross burning was evidence of an intent to intimidate (circular logic) Holding - O'Conner upholds the statute, but strikes the part that presumes intent Hate speech by itself is not punishable, but hate speech with the intent to intimidate is punishable. Not all cross burnings are meant to intimidate; they can be a sign of KKK solidarity. O'Conner's opinion suggests there is a new category of speech that can be banned; "True Threats." True threats encompass statements where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence to a particular group. O'Connor plurality - any cross-burning statute with a prima facie intent provision is a violation. Although cross burning is inherently a symbol of hate, this provision regulates thoughts, as it is not always meant to intimidate. Stevens concurs - cross burning with the intent to intimidate is not protectable, but the prima facie proof of intent is not permissible. Scalia concurs/dissents - there is no way this law would sweep up anyone without intent to intimidate, so it should stand. Souter concurs/dissents - prima facie evidence of intent provision is facially unconstitutional. Thomas dissent - cross burning should never be protected.

United States v. American Library Association (2003)

Facts - Federal statute stated that if libraries wanted to get a reduced rate for Internet connection, they had to install a filtering system that screened all obscenity and pornography that is inappropriate to children. The filter could be turned off by an adult upon request (ALA argued this would make adults uncomfortable, chill speech) Holding - Plurality held the filtering program was facially upheld because when the government funds speech it has the right to determine its parameters.Libraries should not be subject to forum analysis - library is neither a traditional public forum or a designated public forum (not a free speech zone to the public, free speech zone for authors of books).The plurality (Rehnquist) applied a rational basis test - found the use of the filter was a rational way to restrict restrictable speech from children and still allow adults to hear/see protected speech.If one could show that a site couldn't be un-blocked by the librarian, perhaps an as-applied challenge could be raised.

Dennis v. United States

Facts - High ranking member of Communist Party in U.S. who teaches violent overthrow; convicted of conspiracy under Smith Act. 9 month public trial - big deal. On the surface, Vinson adopts the CPD test, but in reality, his application of the test isn't very speech protective. Vinson rejects Holmes' contention from Gitlow that the success or probability of success is a criterion in determining whether the speech is protected. An attempt to violently overthrow the government is punishable, even if its doomed from the start due to small numbers or resources. **Frankfurter Concurrence - Expressly rejects CPD test and formulates the "reasonableness test" - Advocates a balancing approach for cases where the values of freedom of expression and national security are in conflict. Congress should 'weigh the value of speech' - To him there are varying levels of protection of speech. Some speech is low-value other speech is high-value. - Also urges judicial restraint - justices shouldn't make policy decisions. Vinson majority - employs a Hand Formula balancing test (how likely/severe is the danger?) Frankfurter concurs - defer to the legislature; hardline rules on Free Speech are not practical. Jackson concurs - this is a conspiracy to overthrow the gov't, which is a crime, not speech. Black dissents - this decision was based off fear; unfettered communication during difficult times may be dangerous, but the founders felt it was worth the risk. Douglas dissents - petitioners were merely organizing people to teach Marxist/Leninist doctrine, which is protectable speech.

R.A.V. v. City of St. Paul (under-broad)

Facts - Minor burns a cross on the lawn of a black family. Prosecuted under MN law preventing actual or symbolic speech that "arouses anger, fear, alarm, resentment, on the basis or race, color, religion, gender." Holding - Scalia majority Court says the statute is facially unconstitutional because it impermissibly discriminates on the basis of viewpoint. Rule - Gov. may not regulate speech, including speech that can be totally banned (fighting words), based on hostility or favoritism toward the underlying message. Even though the MN court interpreted the statute as applying only to fighting words, Scalia held that the state could not regulate even unprotected speech based on its content/viewpoint. Under-inclusion - Scalia wrote that the State can ban an entire category of speech (ex. fighting words). But if you take a small sub-division of that category (particular kind of fighting word - cross burning), and the reason you select the small category isn't the same as the reason you banned the larger category; the state is effectively regulating on the basis of content, which is prohibited unless it can pass strict scrutiny. Scalia rejected the argument that MN was just trying to regulate the secondary affects of the speech. Mere reactions to racism are not secondary effects. Writes that secondary effects argument applies to pornography - leads to prostitution, crime. Note - Chaplinksy is NOT overruled. As long as you have a fighting-words statute that is broadly termed, then it is constitutional. Concurring Opinions - White: Would use traditional overbreadth doctrine to declare law unconstitutional. There can be some cross-burnings that arouse only regular anger and do not incite an immediate breach of the peace. Ex. cross burnings part of Scottish heritage.

Zelman v. Simmons-Harris

Facts - OH created a government program to give vouchers to all parents in order to utilize public money for public/private school choice. They were given to children under a certain economic-level in the Cleveland school district. Holding - [Rehnquist] Ultimately, the parents have a CHOICE on where to send their children using the government vouchers; not all the schools where the vouchers can be used are religious. The statute is facially NEUTRAL. - Neutrality - the program is constitutional because it is neutral in its design; there were no restrictions on where the school vouchers could be used; could be used at prep-schools, parochial schools, boarding schools, etc. - Choice - the money is given to parents who ultimately make a choice in whether to use the vouchers; and which schools to send their children to (religious or not) - Circuit Breaker Rule 1. Neutral Program + Some Aid + Private Choice = Constitutional 2. If government money is being funneled to religious institutions; it will be constitutional as long as there are some secular choices involved. 3. There is a private decision maker as a "circuit breaker" that ultimately makes a CHOICE where to spend the money. 4. If its the government that makes the decision where the money goes; unconst. O'Connor concurs - Lemon test is still the central tool (also emphasized Agostini analysis). Practical, student-oriented approach is preferable. Thomas concurs - Ohio passes the stringent test employed by the court here, but the 1st Amendment doesn't apply to the states, so it's not even relevant. Stevens dissent - the severe education crisis in Cleveland prior to this ruling should have no bearing. This program authorizes public funds to pay for indoctrination of kids in religious faiths and is a violation of the Est clause. Souter dissent - No tax, in any amount, can be levied to support religious activities/institutions, whatever form they may adopt. This encourages parents to send kids to parochial schools and is therefore a violation. Breyer dissent - emphasizes the divisiveness and religious strife argument.

NY Times v. US

Facts - The Times and The Post wanted to publish "Pentagon Papers." The government sought an injunction. Holding - The Court, in a per curium decision, held that the government was not entitled to an injunction. Each member of the court wrote an opinion.The court did not look at this as a national security. Embarrassment, yes, but not a huge threat. Rejected argument that it fit the Near exception for prior restraints. **Rule - Prior restraints on expression are presumptively unconstitutional, and will only be permitted when the government meets the heavy burden of showing that the restraint is justified. Publication is allowed. Black, Douglas (Free Speech Absolutists) - Prior restraints never valid Brennan, Stewart, White, Marshall thought there could be prior restraints in extraordinary circumstances, which was not the case here. They wanted a virtual certainty that grave damage to the country would result if publication were enjoined. "Will surely result in direct, immediate, and irreparable damage to our nation or its people." Burger, Blackman, Harlan (dissent) believed that the injunction may be an appropriate use of prior restraint in this case. Burger criticized the speed with which the Court heard the case. Harlan developed a test: If the subject matter is within the President's Foreign Relations power, and he determined that disclosure would irreparably impair the national security, the Court should grant the injunction.

Virginia State Board of Pharmacy v. Citizen's Consumer Council Inc. (1976)

Facts - VA law prohibited pharmacists from advertising the prices of prescription drugs Holding Blackmun- statute unconstitutional.Rule - Commercial speech is not wholly devoid of 1st Amendment protection. Consumers have the right to know/hear accurate information. Well-informed public is important to functioning economy. There is a strong social interest in the free flow of commercial information. Commercial speech can be subject to more regulations because: [also reasons why commercial speech gets intermediate-type scrutiny instead of strict scrutiny] The veracity of the commercial speech is easily ascertainable There is a profit motive involved, therefore its not as likely to be chilled. Advertising, however tasteless and excessive it sometimes may seem, involves the dissemination of information Dissent: Rehnquist- First Amendment only protects the dissemination of political, social, and public speech, not commercial speech

Feiner v. New York

Facts - left wing student insulted president; taunted audience, encouraged violence. The police asked him to leave because people were threatening him. Holding - student's words were inviting a riot; could lawfully be silenced. Dissent - Black wrote that even if violence was imminent, the police should arrest the people threatening the speaker, not the speaker. **Generally, current law holds there is no heckler's veto. There is no point at which so much heckling from the crowd should cause the speaker to be silenced. The government must absorb this risk. At some point, the speaker may become an 'inciter,' (like the student in this case) then he may be shut down.

Village of Skokie v. National Socialist party (Skokie Cases)

Facts - the Nazi's wanted to march in an area highly populated by Jews and holocaust survivors. The city argues the parade full of swastikas will provoke a hostile reaction. Holding - display of swastika is symbolic political speech; not fighting wordsIn this case there was advance notice of the parade and common knowledge that something potentially offensive was coming; residents could avert eyes, stay indoors. - Jewish residents of Skokie were on notice of the demonstration - The residents of Skokie were not a "captive audience" unable to turn away.

Rust v. Sullivan (1991)

Facts - the government was providing federal funding for family planning services. The act stated that none of the funds could be used for programs were abortion was a method of family planning. The employees argued that this is a restriction on their freedom of speech and expression. Holding - (Rehnquist) - the Court upholds the restriction on speech. The government can selectively fund programs; it is allowed to spend its money however it wants, and have its own opinions. This is a limited-purpose forum; gov. can forbid pro-abortion speech. The employees are simply surrogates for the government.We are only talking about what the government says; after 5:00 when the employees are off-the-clock, the employees can say whatever they want.*This deals with a government program, not gov. subsidy. Dissent - the Court shouldn't tolerate a governmental restriction just because it is limited to the funded workplace. Criticized because encourages public ignorance.

1st Amendment Fighting Words

Fighting words are outside the protection of the 1st Amendment However, hate speech generally is protected, as long as it doesn't rise to the level of fighting words. (Cohen) Arguments to ban hate speech - the 1st Amendment is meant to encourage the communication of ideas; hate speech is aimed at silencing a group of people. By tolerating hate speech, we are encouraging it. Hate speech causes emotional harm. Argument for hate speech - The point of the 1st Amendment is to protect ideas that we do not like. It is good to let hate speech enter the marketplace of ideas, because lose-out to "truer" or "better" speech. Its bad to push bad ideas underground because they will boil over into a bigger problem later. Most countries take the view that hate speech shouldn't be protected; US is unique.

Fighting Words Doctrine

Fighting words are words "by which their very utterance inflict injury or tend to incite an immediate breach of the peace."

Jackson v. Metropolitan Edison Co.

Forms the modern 'Public Function' test and uses the Nexus Test Rehnquist majority: government monopoly/regulation is NOT state action; reformulates the public-function test and uses the Nexus Test. There must be a seriatim connection between the specific challenge action and the state in order to call it state action. Marshall dissent: state involvement with the utility company is sufficient to satisfy state action. We would not allow public utility to discriminate, so should not allow this. Holding - Private utility company did not have to provide procedural due process before it terminated a customer's service. Rule - The presence of a natural or granted monopoly is not sufficient to transform the utility's service into state action despite the fact monopolies are heavily regulated. Regulation alone isn't state action. The nexus in this case between the government and the company is the regulation, and the complaint has nothing to do with the regulation; so no nexus.

Marketplace of Ideas Model

Formulated in Holmes' dissent in Abrams; "marketplace of ideas" Free, open, unregulated speech fosters debate and the best ideas win out. Product of Laisse-Faire or Social Darwinism outlook on the world. Free open, unregulated debate fosters debate and the best ideas win-out. Laissez-Faire Cons - not always equal access to the market, media can manipulate Downfalls / Cons - not always equal access to the market, the media can manipulate ideas. The controller of the mouthpiece controls information.

2 general parts of 1st Amendment

Freedom of Expression - freedom of speech, press, association Freedom of Religion - Free Exercise Clause and Establishment Clause

Criticisms of Lochner

Institutional Objections: 1. The Court is stepping outside its role - judicial activism. 2. The Court doesn't have fact-finding ability (like Congress), isn't democratically elected; therefore, they shouldn't be making these kinds of decisions 3. The Court is making up rights that don't actual exist - reading into the Substantive Due Process a freedom of contracting. Substantive Objections: 1. Freedom of contract really isn't a private sphere. 2. This legislation is a proper exercise of police power because it protects the health of the workers. 3. Freedom of contract not available to adhesion contracts like this one.

Judicial Action/Excessive Entanglement Test/ Shelley v. Kramer Test

Is the government enforcing rules which violate the Constitution?

Nexus Test

Is there a sufficiently close nexus b/t state and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the state itself? See Jackson

Thomas v. Review Board of IN

Jehovah's fired for refusing to transfer to munitions factory; denied unemployment comp.; Burger majority - coercive impact exists even if indirect. Burden may only be justified if it's the lease restrictive means of achieving a compelling state interest. - Unconstitutional to deny him unemployment benefits If an individual genuinely feels that the conflict with his belief is central; his claim should be upheld even though most members of the same sect would consider the belief to be peripheral. Basically, the Court doesn't want to get into judging the merits of religions. Rehnquist dissent - generally applicable law with the purpose and effect of advancing secular goals; this ruling results in the state favoring Thomas because of his religion.

Town of Greece v. Galloway

Kennedy- Prayer at the beginning of a legislative meeting is constitutional (adults, voluntary, non-coercive) as long as the town policy is one of nondiscrimination, the town does not have to go "beyond its borders" to find non-Christian prayer givers. Such a quest would involve the government in a "form of entanglement" which would be "far more troublesome than the current approach."

Edwards v. Aguillard

LA creationism act required creationism to be taught whenever evolution was, but not the other way around. Struck down. Brennan majority employs Sham Test (where systems are created to look secular on the surface but aren't). Very narrow. Scalia dissent - we must accept the state's expressed purpose. Facts - the LA Creationism Act compelled teachers to teach creationism along side evolution. So, whenever evolution was taught, creationism had to be taught; but whenever creationism was taught, it didn't mandate that evolution was taught. Holding - [Brennan] - statute unconstitutional - While the legislature said the goal of the act was to advance academic freedom; it was clearly not as it didn't mandate evolution be taught when creationism was. - The primary purpose of the creationism act is to endorse a particular religious view - Sham Test - almost as bad as Jaffree. They legislature didn't spell out that they favored creationism; but might as well. The law is not objectively what the legislature says it is. Dissent [Scalia] - there was a secular purpose. Scalia wanted to apply the strict "purpose" and "effect" test; wanted a similar analysis from Jaffree; here there was no express statement of legislative intent, so Court should stay out of the business of trying to figure out the leg.'s motive.

Vagueness

Laws need to be drawn clearly so a reasonable person would understand what types of activity is proscribeable. Vagueness causes self-censorship. This is a procedural Due Process concern - it's only fair that people are on notice and understand what is prohibited. Vague laws tend to be overboard; but overbroad laws do not have to be vague. Laws need to be drawn clearly so a reasonable person would understand what types of activity are proscribable. The line of prohibition must be drawn precisely. If X doesn't know if he can speak or not, he is less likely to speak; thus producing a "chilling affect." Vagueness is a question of procedural due process - Use Objective Standard.If you are going to get in trouble for something, its only fair that you understand what is prohibited. The reasonable person must be on notice. If a law is vague, it tends also to be overbroad, but this isn't always the case. To be overbroad, a law doesn't need to be vague. Overbreadth is a 1st Amendment issue; Vagueness is a 14th Am. Due Process issue

Gitlow v. New York

Leftwing Manifesto; Court incorporates the 1st Am. into the 14th Am.; Sanford majority - the statute is specific enough to be constitutional, court should defer to the legislature; danger doesn't need to be imminent to justify state restriction. Holmes dissents - 'every idea is an incitement' he argues that the Court must look at how likely it is that the speaker will effectuate the speech. Facts - Socialist published "Leftwing Manifesto" which advocated the overthrow of the government in violation of NY's anarchy laws. Different from Abrams because not during wartime. *Court officially incorporates the 1st Amendment into the 14th Amendment's Due Process Clause against the states The Court affirms the conviction anyway, but leans toward a CPD analysis. Justice Sanford is skeptical of the CPD test because he doesn't believe it protects the continuation of the country. Doesn't want to wait until revolution starts to ban speech. Court gives a lot of deference to the legislature when deciding what is "dangerous" Holmes' Dissent: Argues there is no CPD because the Manifesto didn't call for an overthrow of the government; it only expressed Gitlow's beliefs that an overthrow would be needed. Famously states "every idea is an incitement." Says that all speech is big-talk. Court must look at how likely they are to effectuate the speech. In this case he belittles Gitlow, calling his speech "redundant discourse." He doesn't think anyone is going to believe or take Gitlow seriously.

History of 1st Amendment

Middle Ages - political authority derived its legitimacy from religious authority; if you criticize the King, you were criticizing the divine; thus no freedom of expression England - Henry VIII separated from Church, so England formed different view; they restricted speech and expression through. Seditious libel restrictions - couldn't speak out against the King. "The truer the libel, the worse the crime" **Leads to American RevolutionLicensing restrictions - if you wanted to print things, you had to get a license from the Crown; a form of censorship Colonies - generally brought their intolerance of speech with them; but:Peter Zenger Trial - Freedom of expression begins; a jury held truth held to be a defense to defamation action First Amendment Passage - not much historical record, but alien and sedition acts were passed right after the 1st Amendment, so Framers may have allowed some speech restrictions.

Miller v. California

Miller Test - Burger majority 1. Whether an average person, applying contemporary community standards find the work, taken as a whole appeal to the prurient interest - community standard 2. The work depicts or describes in a patently offensive way sexual conduct specifically defined by state law - community standard 3. The work taken as a whole lacks serious literary, political, or scientific value - objective standard

Reynolds v. United States

Mormon prosecuted for polygamy; court held the Free Exercise Clause protected only beliefs, not conduct or practices. Facts - A Mormon was prosecuted for violating anti-polygamy laws. He argued that his religion obliged him to practice polygamy. Holding - The statute did not violate the Free Exercise clause; the court distinguished between beliefs, which are protected by the Clause, and conduct/practices which are not.

Moose Lodge No. 107 v. Irvis

NO STATE ACTION A private club refused to serve a member's black guest. Guest argued that since the state had given the club one of a limited number of liquor licenses, the licensing was enough to constitute state action. Rule - Generally, licensing or regulation is not "significant involvement" therefore not state action [rule consistently followed] The mere fact that the state grants a license doesn't mean the club's actions become state action. Distinguished Burton because here there was no symbiotic relationship. An exception to this rule could also be found in a Kramer-type situation; where a regulatory scheme requires enforcement of rules which violate the Constitution (ex. if license required bars to not serve blacks and required government to enforce this rule = state action). Rehnquist majority: licensing or government regulation is NOT state action, even where establishments licensed by the state are discriminating. This discrimination is not being endorsed or encouraged by the state. Douglas dissent: the quota for liquor licenses is now full and no more club licenses can be obtained, so this restricts the ability of black people to obtain liquor. When the state issued the liquor license, they became active participants in the discrimination.

Tests for Significant State involvement

Nexus Test: If government is sufficiently involved in the private actor's conduct or encourages that conduct, or benefits from it, the private party's act is state action. Ex. Burton Symbiotic Relationship Test: There is a mutually beneficial relationship between the state and private discriminator Excessive Entanglement Test: The state is so heavily involved or entangled with the private action that even though the state doesn't benefit from or encourage private conduct, the court will nonetheless attribute the private conduct to the state

Agostini v. Felton

O'Connor - same facts as Aguilar, but re-opened; Reformulates the Lemon Test; collapsing the 3rd prong into the 2nd; however, lower courts haven't followed this test; they stick to Lemon. - Purpose - law must have a secular purpose - Effect - law's primary effect must neither advance nor inhibit religion 1. Excessive entanglement 2. Indoctrination - is the government trying to indoctrinate anyone Souter dissent - white the extra cost of keeping this program out of sectarian schools is a concern, constitutional lines must be drawn. Aguilar should control. Facts - Regarded essentially the same exact facts as Aguilar. Holding [O'Conner] - program is upheld; overrules Aguilar. - O'Conner wrote that the previous cases were based on assumptions that are not true anymore: that public employee's would be "contaminated"; that the presence of public employees creates a symbolic union of church and state - The direct aid of education functions is not necessarily invalid; the mere presence of public teachers in parochial schools doesn't violate the Establishment Clause. **O'Conner Modifies the Lemon Test": - she collapses the 3rd prong (entanglement) into a factor of the 2nd prong. So now we have: Purpose - law must have a secular purpose Effect - laws primary effect must neither advance nor inhibit religion - Excessive EntanglementIs the government trying to "indoctrinate" anyone? Dissent: (Souter, Stevens, Ginsberg, Breyer)This was basically a religious subsidy Note - most courts still follow the 3 prong Lemon Test; no mention of the magical 4th-Schnieder prong.

Holder v. Humanitarian Law Project

OUTLIER. Remains the only non-overruled opinion upholding a strictly content-based reg. Probably based on relation to 9/11 and terrorism. Roberts majority rules that a federal law that prohibits individuals and groups from giving "material support" to certain foreign organizations designated as engaging in terrorist activities does not violate the First Amendment. providing aid to terrorists is not protected, even if that aid is not intended to further violent extremism (because it can be diverted). Breyer dissent - this is merely communication and advocacy of political ideas.

Cleveland Board of Education v. Loudermill

Once a protected interest if conferred, protection of that interest is a constitutional matter, not legislative. Mere expectation of employment not property interest. - Facts - A security guard applied for a job at a school and failed to reveal his past criminal history. The school found out and fired him. - Holding: Justice White - Courts not legislatures determine due process. 1. Rejects taking the bitter (lack of process) with the sweet (having a property interest). 2. **The nature of the procedures required by due process is a constitutional question to be answered by the judiciary, not a statutory question for the legislature. I.e. - courts get to determine what process is needed when. 3. State law cannot define the constitutional standard for due process; the federal constitution defines due process and sets minimum procedural requirements

Broadrick v. Oklahoma

[Substantial Overbreadth]**Current Law - Lays down the "substantial overbreadth" requirement; narrows the overbreadth doctrine. Facts - A statute prevented civil servants from being-in and contributing to political parties. Broadrick had campaigned for a superior, challenged law Holding - Court rejected his claim, requiring that the law be "substantially overbroad" to invalidate it on its face, when the defendant is constitutionally allowed to be regulated. A party whose alleged conduct falls within a statute's legitimate bounds cannot challenge the statute on the grounds that it might be unconstitutionally overbroad, if applied to other persons or circumstances not before the court.

Prior Restraint

Prior restraints - limitations or prohibitions on speech before it is published/spoken. Ex. injunction against publishing something; administrative regulations Subsequent punishments - penalties imposed after the speech has been published The original understanding of the 1st Amendment applied only to prior restraints Prior restraints have a gross impediment on the marketplace of ideas - Chilling affect on free speech - Denies the opportunity for public appraisal or criticism The court greatly disfavors prior restraint; would error on the side of letting the speech out, then dealing with the ramifications after-the-fact; ex. impose penalty on publisher. In a case, just because a Court rules that prior restraint is improper does not mean that the publisher/speaker won't be punished after the information is published. Prior restraints are usually in the form of an injunction (civil remedy); they are relatively easy to get and there are less procedural safeguards: No trial-by-jury; only one party appears and asks judge for the injunctionLesser burden of proof - preponderance of the evidence Collateral Bar Rule - if you think a law violates your 1st Amendment rights and then you violate the law, you can raise a constitutional argument. But, if you ask the judge first, an injunction is issued, then you violate the injunction, you are in deep shit. Prior restraints are limitations on speech before it is published/spoken; this was the original understanding of the 1st Am. (licensing laws in England); they have a chilling effect on free speech; are greatly disfavored

Significant State Involvement Theory

Private conduct is deemed state action when that conduct is significantly facilitated, supported or encouraged by the state.

Lemon Test

Purpose - statute must have a secular legislative purpose Effect - its primary effect must neither inhibit nor advance religion Entanglement - no excessive entanglement between government and religion *Political Divisiveness - does it cause this? Schneider thinks this is a factor. Even though O'Conner reformulated this test in Agostini; many lower courts still think it's the law and follow it. The non-separationists really hate the Lemon Test because it is too broad.

United States v. Progressive

[Upheld Prior Restraint] Facts - Magazine wished to publish technical information about how to build a hydrogen bomb; but the info was so technical and access to supplies so limited, no one would be able to actually build the bomb. Holding - Prior restraint upheld because a threat to national security.Here, there was statutory power to enjoin the publication (none in Pent. Papers). The government's rationale seemed greater than Pentagon Papers because this wasn't simply historical or political; rather truer issue of national security.

City of Boerne v. Flores

RFRA unconstitutional use of the 14th's §5 enforcement clause; [invalidates federal RFRA law as a violation of Congressional power to enforce the scope of constitutional rights under Section 5 of the 14th Amendment] [only the court can define the scope of first amendment rights—absent an amendment, Congress must adhere to this scope by enacting congruent and proportional legislation to remedy violations or to preemptively protect the scope of the right defined] But, with regard to the federal government, RFRA is constitutional; so the federal government must pass strict scrutiny when it passes neutral laws of general applicability that have the incidental effect of burdening the Free Exercise of religion.

Hosanna Tabor v. EEOC

Roberts- [purely religious organizations can fire their ministerial employees without worry of violating federal employment laws—ministerial control within the church space is reserved as a free exercise interest] [federal employment law would otherwise be a means by which to hamstring congregations in their discretion on ministers] Roberts majority - even where an individual performs some secular, status as a commissioned minister outweighs the secular aspects of the job. Ministerial exception not limited to hiring and firing decisions made for religious reasons. Thomas concurs - court does not have authority to determine who is a minister. Church decides. Alito concurs - ministerial exception applies to any employee who conducts worship services.

Manhattan Community Access Corp. V. Halleck

[a private actor can only be a state actor only when it presents a function traditionally attributable to the state—operating public access channels is not automatically state action]

Church of Lukumi Babalu Aye v. Hialeah

Santeria church wanted to open church in a Florida city; city passed law banning animal sacrifice; [application of Smith to a Florida ordinance prohibiting animal killing that clearly targeted religious animal sacrifice while exempting other forms of animal slaughter] Kennedy majority - law is not facially neutral if it refers to a religious practice without a secular meaning, must apply strict scrutiny; reaffirmed test in Smith for neutral laws. Scalia concurs - 1st Am meant to go to the effects of the law, not the purposes of the legislature.

Ashcroft v. ACLU II

[government must articulate a compelling interest and use least restrictive means in enacting content-based regulations—this merits analysis was used to decide whether to award or grant an injunction] [the statute criminalizing internet distribution of pornography was overbroad—blocking and filtering were alternative and less restrictive means by which Congress could have prevented the material from being viewed by minors]

Three categories of justices

Separationists: Stevens, Souter, Ginsberg. Most likely want a separation between government and religion Non-Separationists: Scalia, Rehnquist, Thomas. Will argue that the law is a permissible accommodation; will uphold law unless it shows a preference to one sect over another. Non-preferntialists. Dislike the Lemon Test Swing Voters - O'Conner - reformulated Lemon Test in Agostini; creative in characterizing the issue in Elk-Grove; "civic deism" 1. Most influential swing voter; very PRAGMATIC, reformulated the Lemon Test in Agostini. Also creative in Elk-Grove Pledge of Allegiance case - "civic deism" 2. Started off as a non-separationist; but has moved more toward the middle. 3. Separationist Views - separationist with regard to prayer and aid to private schools without any safeguards. See Santa Fe, 10 Commandments Cases 4. Non-Separationist View - school aid as long there are safeguards. See Agostini - Kennedy - critical swing vote in 10 Com. Cases; pissed off Scalia in Weisman 1. Separationist Views - prayer in public. Lee v. Weisman 2. Non-Separationist Views - government aid to religious groups 3. Has taken a new approach - invented the "Coercion Test" in Lee v. Weisman which pissed off Scalia; this test gained acceptance in Santa Fe - Breyer - aligned with O'Conner in governmental aid cases; side with non-separationists.Tends to be a separationist with regard to prayer; but not for sure. - General Rule: Mushy Middle takes separationist stance with regard to prayer in public. Mushy Middle takes non-separationist stance with regard to federal aid.

Mathews v. Eldridge

Social Security benefits are not a property interest. How do we determine which due process procedures are required? - The importance of the interest that will be affected by the action; - The risk of erroneous depravation balanced against the value of additional safeguards; - The government's interest, including the fiscal/administrative burden of additional protections. - Balancing test for deciding what procedures are required when life, liberty or property is deprived. Three parts: 1. Private Interest - the importance of the interest to the individual. The more important the interest, the more required procedural safeguards. 2. Ability of additional procedures to increase the accuracy of fact-finding. The more the Court believes additional procedures will lead to better, more accurate decisions, the more the Court will require them. 3. Government's Interest - look at burden imposed on the government by requiring procedures. The more expensive the procedures, less likely they will be applied

Brentwood Academy v. Tennessee Secondary School Athletic Association

Souter majority - state action may be found if, though only if, there is such a close nexus between the state and the challenged action that seemingly private behavior may be fairly treated as that of the state itself. Thomas dissent - Entwinement is not properly defined and therefore the scope of this ruling is unpredictable and potentialmccly overbroad. This should only be applied where gov't is encouraging constitutional violations by private entities.

Edenfeld v. Fane

State ban on in-person CPA solicitation was struck down. CPA's are not trained in the art of persuasion. CPA clients are not 'unusually vulnerable'

Peel v. Illinois

State cannot ban someone as advertising themselves as a trial-specialist. There was a complete absence of deception.

Ohralik v. State Bar

States may ban all in-person solicitation for pecuniary gain (ambulance chasing)

Bates v. State Bar

States may not ban all advertising by lawyers

FCC v. Pacifica (media broadcast)

Stevens majority: even protected speech (indecent speech) can be subject to limited time, place, manner restrictions in contexts where it is particularly offensive; especially when children (impressionable) are a captive audience (can't avert ears).

U.S. v. Carolene Products Footnote #4 (1938)

Stone- Regulatory legislation affecting ordinary commercial transactions is not per se unconstitutional. If there is rational basis, it's fine. There is no discussion of whether or not the analysis would be different if minorities were affected. - The Court says they have given up on Lochnerian substantive due process. - The Court changes its focus; outlines its agenda for the next few decades - will focus on protecting rights of discrete and insular minorities. - The Court basically bifurcates substantive due process: 1. Lochnarian economic due process - dead 2. Civil rights substantive due process - alive and well.

Central Hudson v. Public Service Commission

The First Amendment permits governments to impose a complete advertising ban if the ban advances a substantial government interest and is narrowly tailored to achieve that interest. Powell defines commercial speech as expression related solely to the speaker's and the audience's economic interests Powell sets for an intermediate scrutiny test: Is the expression protected by the 1st Amendment? [test applied to determine whether the commercial speech can be regulated: (1) whether the expression is protected by the first amendment because it concerns lawful activity and is not misleading (2) whether the asserted governmental interest is substantial (3) determine whether the regulation directly advances the asserted government interest (4) law must require least restrictive alternative] Blackmun concurs - Court should always allow a more limited restriction, but may not promote energy conservation by keeping the public in ignorance. Government cant restrict expression merely because of the effect that the message might have on the public, absent a clear and present danger Stevens concurs- Commercial speech should me more narrowly defined, to prevent speech deserving greater constitutional protection from being subject to suppression as commercial speech Rehnquist dissents - this is economic activity and not subject to 1st Am. protection.

Tinker v. Des Moines School District

Students wore black armbands to protest war, school banned them; students don't shed their Const. rights at the schoolhouse gate. Fortas majority: students may express opinions if they do so without 'materially/substantially interfering with the requirements of appropriate discipline in the operation of the school'There must be more than mere apprehension that there will be a material and substantial disruption, there must be a reasonable forecast if it. Black/Harlan dissent - the power to control pupils should be determined by school officials.

Jenkins v. Georgia

[juries must determine obscenity narrowly—relegated to only hard core and patently offensive sexual conduct]

Symbiotic Relationship test

Test: Is there a mutually beneficial relationship between the state and private discriminator? One nexus alone might not qualify, but in the aggregate if there is a symbiotic relationship, and then state action will be found. See Burton v. Wilmington Parking

State action history

The Civil Rights Cases - Issue involved whether a private RR could prohibit blacks from riding. - Court held that the 14th Amendment applies only to the government, not to private conduct. Congress lacks power to regulate private conduct. - Private action is governed by state law, not by the US Constitution - Therefore, the RR could forbid blacks from using it because the RR is a private company, and not the state. - Justice Harlan's dissent becomes famous - he develops the "nascent public function test" arguing that while the RR is technically a private company, it is the infrastructure of the country, is open to the public, and it is big enough to act like a government.

Current State of Law

The Court has never disavowed the majority rationale in RAV; but to some extent Mitchell and Black seem unwilling to take the extreme approach taken by Scalia in RAV. Perhaps the RAV principal remains in full force in the context of regulations targeting speech or highly expressive conduct, where there is reason to believe that under-inclusiveness is to express State disapproval of a particular viewpoint.

Court packing scheme

The Court was striking down all of FDR's New Deal legislation, so he proposed adding a justice for every one that was over the age of 70. This scared the Court into radically changing its position

Overbreadth

The government may not regulate what it has the power to regulate by means that sweep unnecessarily broad, reaching both constitutionally protected as well as unprotected activity. Test = "substantial overbreadth" Broadrick v. Okalahoma Court has an exception to the standing rules for overbreadth in the speech context; allows one to raise the rights of another; Court wants to avoid chilling 1st Am. rights, Court is scared of self-censorship. The government may not regulate what it has the power to regulate by means that sweep unnecessary broadly, reaching both constitutionally protected as well as unprotected activity. Test = "Substantial overbreadth" Broadrick Overbreadth is especially important in the free speech concept. The Court doesn't want to prohibit any protected speech, so they have carved out an exception to ensure that overbroad statutes are quickly struck down: Standing: Generally, one has to have standing to bring a claim before the Court; that is, they are the one who has been wronged by the law. Must have "case-in-controversy" 1st Amendment Exception -> in 1st amendment cases, one can raise the rights of another. For example, a law targets a certain type of speech, X violates the law. Even though the law is constitutional as applied to X, X may argue that the law is facially unconstitutional, and raise the rights of Y (a person in a different situation, and as applied to that person the law would be overbroad).The Court wants to avoid chilling 1st Amendment rights; they don't want Y to be fearful of speaking. Main goal is to curb self-censorship.

1st Amendment Public Forum Doctrine

The public forum issue arises when the government passes a law that restricts speech on public or governmental areas; when the law singles out the location of the speech. Without the public forum doctrine the government might argue that it owns the land and it can regulate speech on the land as a use regulation.

Content-based Regulation

This is regulation that involves subject matter. Strict Scrutiny: (1) the regulation serves a compelling governmental interest (2) it is narrowly tailored to serve that interest Exception - government may regulate or even prohibit certain content-based categories that fall outside the 1st Amendment's protection: ex. threats, fighting words, obscenity, actual child porn, national security info, some defamation, false or misleading commercial information

Nebbia v. New York

Turning Point - (Roberts, majority) some redistributive means are acceptable - states can regulate the price of milk; - "Substantive Due Process Requires laws must not be unreasonable, arbitrary or capricious; and that the means should have a substantial relation to the ends." - Facts: Nebbia is convicted of selling 2 quarts of milk below the minimum price set by a milk control board. - Issue: Can states regulate the price of milk? - Holding: Yes - there is a right to be free to enter into contracts; but it isn't absolute. 1. Substantive due process requires that laws must not be unreasonable, arbitrary or capricious; and that the means should have a substantial relation to the ends. This law isn't unreasonable as there is a general concern for milk price during Depression. 2. *Paradigm shift for Court - laws that further some redistributive ends are permissible. Carves out an exception for social welfare. 3. Court is saying that the legislature can play a more active role in the marketplace during the Depression. Step back from the strict Laisse-Faire Lochner values. 4. After Nebbia, we still have economic substantive due process issues, but the tide has substantially turned.

Roman Catholic Diocese of Brooklyn v. Cuomo

[COVID-19 restrictions cannot treat churches and religious institutions differently than secular businesses—zoning and 10-to-25-person limit issue that burdened religious groups not deemed "essential businesses"]

Obergefell v. Hodges

Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, states must issue marriage licenses and recognize lawful out-of-state marriages for same-sex couples. Kennedy Majority- Same-sex couples have a constitutional right to marry protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Marriage is a fundamental right protected by the Due Process Clause. Ultimately, the four principles underpinning the protection of the right to marry apply equally to opposite and same-sex couples: (1) the right to choose whether and whom to marry is "inherent in the concept of individual autonomy"; (2) the right serves relationships that are equal in importance to all who enter them; (3) assuring the right to marry protects children and families, which implicates the myriad of rights related to procreation and childrearing; and (4) lastly, marriage is the very "keystone of our social order" and foundation of the family unit. Though marriage has historically been viewed as between opposite-sex couples, the institution has changed over time, including through the changing legal status of women. Refusing to allow same-sex couples to marry denies them a myriad of legal rights, including those related to taxation, insurance benefits, intestate succession, spousal evidentiary privileges, child custody and support, etc. In this instance, the liberty interest protected by due process intersects with the right to equal protection, and same-sex marriage bans violate both.

City of Renton v. Playtime Theaters

[Content-neutral" time, place and manner regulations on adult theatres are acceptable under the First Amendment so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication] [such regulations are primarily meant to regulate the secondary effects of speech without specifically targeting and banning the speech]

Florida Bar v. Went For It Inc.

Upheld a 30 day waiting period before tort-lawyers could send targeted direct mail solicitation to accident victims and their relatives. Cooling off period protects the interests of the victims and families in tough-times; protects public confidence in field of law

Zauderer v. Office of Disciplinary Council of SC of OH

Upheld state disciplinary rule when lawyer failed to disclose in his ads that in contingency-fee cases, if the case didn't succeed, the client would have to pay the costs.

Viewpoint Discrimination

Viewpoint discrimination involves perspective and is subjected to the highest level of scrutiny; if viewpoint discrimination found, almost always shot down by Court. Prior Restraints

Time, Place, and Manner Restrictions

Ward v. Rock Against Racism - a regulation of time, place and manner of protected speech must be reasonable and narrowly tailored to serve a legitimate Content-Neutral governmental interest, but it need not be the least restrictive means [intermediate scrutiny]

Bowers v. Hardwick

White, majority) Court upheld sodomy statute; no fundamental right to sodomy; used history and tradition. Blackmun dissent, this case is about an individual's right to decide how to engage in consensual sexual activity. Facts - GA statute prohibited all sodomy, not limited to homo's or hetero's. Police came to question a man for a traffic ticket, opened door, walked in on 2 guys having sex. They arrested Hardwick. Even thought DA didn't prosecute, Hardwick challenged the statute. Holding - Statute upheld. - The Court framed the issue as - whether there is a fundamental right to engage in homosexual sodomy. Court answered - No. - The Court decided the issue citing history and tradition - civilization in general is against homosexual conduct.

Ibanez c. FL Department of Business and Professional Regulation, Board of Accountancy

With regard to the placement of credentials in the yellow pages and on letterhead, the Court held that the state may only ban false, deceptive, or misleading advertising commercial speech

Brandenburg v. Ohio

[Current Law]Per curium opinion never mentions the CPD test; most speech protective test to date **Imminent Lawless Action Test** - The speaker must intend to incite imminent lawless action and - Such action is likely to result imminently (like Gitlow - court must weigh probability) Black concurs - we should do away with the clear/present danger test altogether. Douglas concurs - there should be no distinction between advocacy of ideas vs. action. Facts - KKK had a clan rally in Lebanon, OH; Klan member made violent threat remarks and was convicted under the Ohio Criminal Syndicalism Act Holding - statute unconstitutional because it punished 'mere advocacy'.Court issued a per curium opinion in which they never mentioned the CPD test. Formulation of the current test - Imminent Lawless Action Test The speaker must intend to incite imminent lawless action and Such action is likely to result imminently Most speech protective test; allows teaching an abstract doctrine of anarchy or violence. Opinion seems to flow from the pre-Dennis, Brandeis-Holmes line of opinion, but doesn't mention CPD, or expressly overrule Dennis

Marsh v. Alabama

["Company Town case"] - STATE ACTION The town was owned an run entirely by the company and refused to allow solicitation without prior written permission. Jehovah's witnesses were arrested. They invoked the 14th/1st (religion) Amendment, the company town argued that there was no state action and it wasn't applicable. Rule - Running a city is a public function therefore it must be done in compliance with the Constitution. The more an owner opens up his property for use by the public in general, the more his rights become circumscribed by the Constitution.

Everson v. Board of Education

[Black] - Establishment Clause incorporated to the 14th; upholds public bussing to religious schools; safety-issue; law is religion-neutral as it provides for transportation for all kids to all schools; fire trucks come when church burning. Rutledge dissent - this law helps gets get to a place that indoctrinates them, therefore it is a violation of the establishment clause. We're paying for religious teaching, indirectly. Facts - Program reimbursed parents for the money they spent to transport their children to private school on public busses. Rule - Establishment Clause first incorporated against the states through the 14th Am; a general program which pays the fares of children attending public and parochial schools is constitutional; it is public welfare legislation. Holding [Black] - Court uphold the reimbursement scheme. 1. The Court frames the issue as one of safety - the fire trucks come to the church when its burning down. 2. This law provides the secular benefit of transportation to the schools and was completely NEUTRAL between secular and religious schools. 3. Recognizes that some degree of religion in the public sphere is OK. 4. Black is a proponent of a strong 1st Amendment (absolutist in speech)

Lemon v. Kurtzman

[Burger] statute allowing government to supplement income of teachers in private schools who teach secular subjects unconstitutional. Facts - Statute allowed the government to supplement to income of teachers in private schools who teach secular subjects. Holding - the statute violated the Establishment clause Rule - Lemon Test 1. Purpose - the statute must have a secular legislative purpose 2. Effect - its principal or primary effect must be one that neither advances nor inhibits religion 3. Entanglement - there must not be "excessive entanglement" between government and religion. - Ex. state decides to pay the salary of teachers as long as they don't teach about religious beliefs; state would have to monitor teachers; leads to entanglement - Note - this prong is merged with the second prong in Agostini. 4. *Political Divisiveness - will the statute cause political divisiveness? - Not really part of the test, but Schneider says its there. - O'Conner doesn't talk about it in AgostiniIt is resurrected in Santa Fe Scalia dissent - this test is too squishy to be effective.

Ashcroft v. ACLU I

[COPA community standards approach did not violate the constitution because it clearly targets obscene material and exempts material of serious artistic, literary, religious, political. or social value]

Texas v. Johnson

flag burning case; guy burnt flag outside RNC in protest of Reagan; the court does NOT apply the O'Brien test, holding that the state law banning the burning of the flag was aimed at speech, not conduct. Brennan majority - it is not the verbal or nonverbal nature of expression which defines it, but the gov't interest at stake, that helps to determine whether a restriction on that expression is valid. - The O'Brien test is only applicable where the gov't interest is unrelated to the suppression of free expression, which is not the case here. - When the government's interest in restricting expression is based on a desire to suppress the viewpoint of the speech, strict scrutiny applies. - **Flag burning is expression/speech, not conduct, therefore the O'Brian test is inapplicable. Flag burning goes to the essence of communication. - The statute was based on the content of the message looking directly at the audiences response. No heckler's veto. - Dissent - argue that the action caused a breach of the peace (no evidence of rioting) and that the flag is different because represents nationhood and unity. - Congress tried to counter this decision by passing the Flag Protection Act, (United States v. Eichman), but the Court struck it down again because it regulated expression. Kennedy concurs - this is speech, in both the technical and fundamental meaning is therefore protected. Even if it's offensive, it must still be permitted. Rehnquist dissent - flag burning is not political speech, it is an act intended to antagonize and get attention; its evil and profoundly offensive. Stevens dissent - the value of the flag as a symbol is a significant state interest.

Roth v. US

foundational case holding that obscenity is not protected under the first amendment

O'Brien v. United States

guy burned his draft card to protest the Vietnam War. Warren majority formulates test and finds that the government had an important interest in making the draft work efficiently, it wasn't related to limiting speech and the restriction was no greater than necessary to keep the draft running. Facts - O'Brien burned his draft card to protest the Vietnam War. Federal law required that men have their draft cards with them at all times to ensure efficient conscription. Rule - the O'Brien test for expressive conduct. Conduct can be regulated if: 1. The government has a constitutional power to promulgate the law 2. The regulation furthers a substantial/important governmental interest 3. The interest is unrelated to the suppression of free expression, and 4. The incidental restriction on alleged 1st Amendment freedoms is no greater than is essential to the furtherance of that interest. *The O'Brien test is used when the government regulates conduct and the conduct has an incidental impact on speech/expression [look for cases that blend conduct and speech] The Court says that there are certain types of situations where the conduct is infused with the idea; the government can regulate the conduct (the action), even though the action may indirectly involve some expression. Here, the Court holds that the government has a compelling interest in making the draft work efficiently; even though this law incidentally impacts the man's speech the government has a higher interest in keeping people from burning their draft cards.

Employment Division v. Smith

guys fired for eating peyote, then were denied unemployment compensation; Scalia reformulates Sherbert test: - Neutral laws of general applicability (especially criminal laws) that have the effect of burdening a particular religious practice only get Rational Basis review; exceptions: 1. Hybrid cases - Free Exercise + Some Other 1st Am. Claim (ex. Free Speech) 2. Unemployment compensation cases like Sherbert Laws that are not facially-neutral to religion -> still get strict scrutiny Facts - Oregon law criminalized the possession of peyote, refused to give exemptions to Indians who used the drug for religious purposes. Two drug counselors were fired for using peyote, and the state denied them unemployment benefits. Rule - Neutral laws of general applicability [especially criminal laws] that have the effect of burdening a particular religious practice only need to pass RATIONAL BASIS review. Two Exceptions: 1. Hybrid cases - where there is more than one constitutional interest involved. Ex. Yoder Free Exercise Claim + Free Speech Claim. 2. Unemployment cases where there is an "individualized governmental assessment" not dealing with the violation of a criminal law. Holding -[Scalia] the State could deny unemployment benefits in this case. - *Scalia took great heed of the fact this was a CRIMINAL law; he distinguishes this situation where the employees were denied unemployment benefits for breaking a criminal law, from that of Sherbert and other unemployment cases where they broke no law, but were simply fired to work because of their religion. - So, Smith lays down the test for a facially neutral law of general applicability and requires only rational basis with two exceptions. - Regarding laws that are not religious-neutral (that is, the effect on Free Exercise is made explicit in the law itself) à still get STRICT SCRUTINY. Concurring [O'Conner] O'Conner agrees these employees could be fired and denied unemployment compensation, but would do so using the normal strict scrutiny standard from Sherbert. State has compelling interest in drug laws, this is least rest. means. - She accuses Scalia of making this rule up out of no-where; the Court has never talked about hybrid claims before. Note - this case caused a huge public outcry; all religious people thought it wasn't protective enough of religious liberty.

Santa Fe Independent School District v. Doe

struck down student initiated and led prayer at football game after school voted for it and chose kid to say prayer. Stevens mixed together Endorsement, Coercion, and Lemon Test (political divisiveness prong). Looks to the "real purpose" of the practice (i.e. to find a "back door" way to return prayer to football games). This does not impact private student religious activity, only school sanctioned activity clearly designed to circumvent the system. Rehnquist dissent - Coercion test only applies to prayer "directed and controlled" by school officials. This is private speech, protected by the 1st Am. Facts - the Court struck down a student initiated and student led prayer at a football game. The school held a vote to determine whether students wanted a prayer, and then decided who should deliver it. Holding [Stevens] - struck down the school prayer - The Court didn't consider the invocations to be private speech because it was authorized by government policy (school vote) and took place on government property during a government sponsored event. - The voting process ensured that a minority view could never bet the speaker - this goes to the Political Divisiveness prong of the Lemon Test - Steven's kind of mixes together three tests: the Lemon Test, Coercion and the Endorsement Test

Aguilar v. Felton

teachers employed by the state to teach remedial education to dumb kids in parochial schools. Court struck down these programs because school would contaminate the teachers; teachers would have to change style; excessive entanglement; led to trailers. In Aguilar v. Felton, 473 U.S. 402 (1985), this Court held that the Establishment Clause of the First Amendment barred the city of New York from sending public school teachers into parochial schools to provide remedial education to disadvantaged children pursuant to a congressionally mandated program. Facts - Both cases concerned programs in which teachers were employed by the state to teach remedial education to disadvantaged students in parochial schools. Holding - the Court struck down these programs - The Court held that if you allow math/science teachers who were paid for by Title I of ESEA, they may feel they have to tailor their program as not to offend the religious beliefs of the school they were teaching in. That is, the school would "contaminate" the teacher. This is basically an excessive entanglement argument. - This case led to "Trailor Education" where trailers were parked outside parochial schools where the remedial teachers could tutor kids. - O'Conner dissented in this case- it drove her crazy that so much money was being spent on trailers instead of education. She gets her way in Agostini.

Incorporation

the 1st Amendment has been entirely incorporated by the 14th Amendment against the states. Applies to both State and Federal Action.

O'Brien Test

the O'Brien test for expressive conduct. Conduct can be regulated if: 1. The government has a constitutional power to promulgate the law 2. The regulation furthers a substantial/important governmental interest 3. The interest is unrelated to the suppression of free expression, and 4. The incidental restriction on alleged 1st Amendment freedoms is no greater than is essential to the furtherance of that interest. *The O'Brien test is used when the government regulates conduct and the conduct has an incidental impact on speech/expression [look for cases that blend conduct and speech]

Ashcroft v. Free Speech Coalition

the court struck down the law banning virtual child porn. Ferber was more about preventing child abuse than preventing pedophilia. Scalia holds that it is not enough to say that it encourages unlawful behavior as this assertion is too speculative. [struck down aspects of the CPPA as overbroad] [Can't ban virtual child porn that is constitutionally protected as a means to ban unprotected speech (child porn made by using real children) merely b/c it is becoming impossible to tell the difference] [No crime with virtual child porn (no victim) and not enough to ban speech by saying it has a mere tendency to encourage unlawful acts]