POLS 353 Constitutional Rights and Liberties

Regents of the University of California v. Bakke APPELT JURISDICTION LOOK UP STRICT SCRUTINY TEST -compelling governmental interest -by least restrictive means to achieve the interest, narrowly tailored

(Equal Protection: Affirmative Action) Schools can't use admission quotas and admit students solely on the bais of their race. STRICT SCRUTINY IS THE THE TEST FOR RACE Facts: Bakke, had twice applied for admission to the University of California Medical School at Davis. He was rejected both times. The school reserved sixteen places in each entering class of one hundred for "qualified" minorities, as part of the university's affirmative action program, Bakke's qualifications (college GPA and test scores) exceeded those of any of the minority students admitted Question: Did the University of California violate the Fourteenth Amendment's equal protection clause, and the Civil Rights Act of 1964, by practicing an affirmative action policy that resulted in the repeated rejection of Bakke's application for admission to its medical school? Holding: No and yes. There was no single majority opinion. Four of the justices contended that any racial quota system supported by government violated the Civil Rights Act of 1964. deciding vote ordering the medical school to admit Bakke. However, in his opinion, Powell argued that the rigid use of racial quotas as employed at the school violated the equal protection clause of the Fourteenth Amendment. The remaining four justices held that the use of race as a criterion in admissions decisions in higher education was constitutionally permissible. Powell joined that opinion as well, contending that the use of race was permissible as one of several admission criteria. So, the Court managed to minimize white opposition to the goal of equality (by finding for Bakke) while extending gains for racial minorities through affirmative action In City of Richmond v. J.A. Croson Co. (1989), the Court addressed a city's set-aside program and applied Strict Scrutiny (the Court struck down the program). However, in Metro Broadcasting v. FCC (1990), the Court applied Intermediate Scrutiny to the federal set-aside and affirmative action program. These cases led to a strange result where the test depended on whether the defendant was a State (or political subdivision), or, the Federal Government. Adarand Constructors, Inc. v. Pena (1995), the Court held that Strict Scrutiny was the appropriate test for affirmative action cases, regardless of whether the affirmative action program was in the States or the Federal Government.

Grutter v. Bollinger

(Equal Protection: Affirmative Action) Grutter held that educational diversity constitutes a compelling state interest. As long as race is a "plus" factor, it can be used. affirmative action case STILL Constitutional (lost) ; race could be used as a factor in admissions as long as there was no point system and race was not a major factor; upheld Bakke case HOLISTIC REVIEW case in which Supreme Court held that University of Michigan's law school admission program was sufficiently "narrowly tailored" to consider race as a factor in admission decisions in order to achieve goal of a diverse student body Facts: Grutter, a white resident of Michigan, applied for admission to the University of Michigan Law School. Grutter applied great scores She was denied admission. The Law School admits that it uses race as a factor in making admissions decisions because it serves a "compelling interest in achieving diversity among its student body." Question: Does the University of Michigan Law School's use of racial preferences in student admissions violate the Equal Protection Clause of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964? Holding: No. the Court held that the Equal Protection Clause does not prohibit the Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. The Court reasoned that, because the Law School conducts highly individualized review of each applicant, no acceptance or rejection is based automatically on a variable such as race and that this process ensures that all factors that may contribute to diversity are meaningfully considered alongside race.

Romer v. Evans

(Equal Protection: Gay rights) Voided a state constitutional amendment that denied homosexuals protection against discrimination Prevents any state from discriminating against homosexuals. Facts: Colorado voters adopted Amendment 2 to their State Constitution precluding any judicial, legislative, or executive action designed to protect persons from discrimination based on their "homosexual, lesbian, or bisexual orientation, conduct, practices or relationships." Following a legal challenge by homosexual and other aggrieved parties, the state trial court entered a permanent injunction enjoining Amendment 2's enforcement. The Colorado Supreme Court affirmed on appeal. Question: Does Amendment 2 of Colorado's State Constitution, forbidding the extension of official protections to those who suffer discrimination due to their sexual orientation, violate the Fourteenth Amendment's Equal Protection Clause? Holding: Yes. In a 6-to-3 decision, the Court held that Amendment 2 of the Colorado State Constitution violated the equal protection clause. Amendment 2 singled out homosexual and bisexual persons, imposing on them a broad disability by denying them the right to seek and receive specific legal protection from discrimination, Justice Anthony Kennedy noted that oftentimes a law will be sustained under the equal protection clause, even if it seems to disadvantage a specific group, so long as it can be shown to "advance a legitimate government interest." Amendment 2, by depriving persons of equal protection under the law due to their sexual orientation failed to advance such a legitimate interest. Justice Kennedy concluded: "If the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."

Lawrence v. Texas

(Equal Protection: Gay rights) Bowers v. Hardwick (1986), Court held the State of Georgia's sodomy statute (as applied to homosexuals) was constitutional. The Court's 5-4 decision found that there was no fundamental right to homosexual sodomy. Burger's concurring opinion: "Condemnation of [homosexual conduct] is firmly rooted in Judeao-Christian moral and ethical standards...To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching." Following his retirement, Justice Powell indicated he "probably made a mistake" joining the majority opinion. Justice Blackmun dissented and hoped the Court would "reconsider its analysis." A Texas law prohibiting homosexual sodomy violated the privacy and liberty of adults under the due process clause of the 14th Amendment, to engage in private intimate conduct. Facts: Responding to a reported weapons disturbance in a private residence, Houston police entered John Lawrence's apartment and saw him and another adult man, Tyron Garner, engaging in a private, consensual sexual act. Lawrence and Garner were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct Question: Do the criminal convictions of John Lawrence and Tyron Garner under the Texas "Homosexual Conduct" law, which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples, violate the Fourteenth Amendment guarantee of equal protection of laws? Do their criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment? Should Bowers v. Hardwick, 478 U.S. 186 (1986), be overruled? Holding: No, yes, and yes. held that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. After explaining what it deemed the doubtful and overstated premises of Bowers, the Court reasoned that the case turned on whether Lawrence and Garner were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause.

United States v. Windsor

(Equal Protection: Gay rights) Facts: The Defense of Marriage Act (DOMA), enacted in 1996, states that, for the purposes of federal law, the words "marriage" and "spouse" refer to legal unions between one man and one woman. Since that time, some states have authorized same-sex marriage. In other cases regarding the DOMA, federal courts have ruled it unconstitutional under the Fifth Amendment, but the courts have disagreed on the rationale. Edith Windsor is the widow and sole executor of the estate of her late spouse, Thea Clara Spyer, who died in 2009. The two were married in Toronto, Canada, in 2007, and their marriage was recognized by New York state law. Thea Spyer left her estate to her spouse, and because their marriage was not recognized by federal law, the government imposed $363,000 in taxes. Had their marriage been recognized, the estate would have qualified for a marital exemption, and no taxes would have been imposed. On November 9, 2010 Windsor filed suit in district court seeking a declaration that the Defense of Marriage Act was unconstitutional. At the time the suit was filed, the government's position was that DOMA must be defended. Question: Does the executive branch's agreement with the lower court that the act is unconstitutional deprive the Supreme Court of jurisdiction to decide the case? Does the Bipartisan Legal Advisory Group of the House of Representatives have standing in the case? Does the Defense of Marriage Act, which defines the term "marriage" under federal law as a "legal union between one man and one woman" deprive same-sex couples who are legally married under state laws of their Fifth Amendment rights to equal protection under federal law? Holding: Yes, unanswered, yes. Justice Anthony M. Kennedy delivered the opinion of the 5-4 majority. The Supreme Court held that the United States Government, despite the executive branch's agreement regarding DOMA's unconstitutionality, retains a significant enough stake in the issue to support Supreme Court's jurisdiction. Because the judgment in question orders the U.S. Treasury to refund tax money, the Government stands to suffer a real economic injury and therefore maintains standing in the case. The Bipartisan Legal Advisory Group (BLAG) presented substantial arguments for the constitutionality of DOMA that reflected an actual controversy under Article III, which allowed the Supreme Court to address the case without needing to decide whether BLAG would have had standing before a lower court. The Court also held that states have the authority to define marital relationships and that DOMA goes against legislative and historical precedent by undermining that authority. The result is that DOMA denies same-sex couples the rights that come from federal recognition of marriage, which are available to other couples with legal marriages under state law. The Court held that the purpose and effect of DOMA is to impose a "disadvantage, a separate status, and so a stigma" on same-sex couples in violation of the Fifth Amendment's guarantee of equal protection. DOMA unconstitutional

Reed v. Reed RATIONAL BASIS USED

(Equal Protection: Gender) Court in Reed had two important principles to the holding: 1 Court held that administrative convenience is no justification for equal protection violation. 2 Court held that laws containing stereotyped, sex-based assumptions violation the equal protection clause. Court utilized "rational basis test" in Reed. Facts: The Idaho Probate Code specified that "males must be preferred to females" in appointing administrators of estates. After the death of their adopted son, both Sally and Cecil Reed sought to be named the administrator of their son's estate (the Reeds were separated). Question: Did the Idaho Probate Code violate the Equal Protection Clause of the Fourteenth Amendment? Holding: In a unanimous decision, the Court held that the law's dissimilar treatment of men and women was unconstitutional. [T]he choice in this context may not lawfully be mandated solely on the basis of sex.

United States v. Virgina

(Equal Protection: Gender) Note that the Court did not adopt "strict scrutiny" for gender discrimination in the VMI case. The Court did, however, inject the requirement of an "exceedingly persuasive justification" into the Intermediate Scrutiny test for gender cases 1996 - Sex-based "separate but equal" military training facilities violate the Fourteenth Amendment's Equal Protection Clause. Facts: (VMI) boasted a long and proud tradition as Virginia's only exclusively male public undergraduate higher learning institution. The United States brought suit against Virginia and VMI alleging that the school's male-only admissions policy was unconstitutional insofar as it violated the Fourteenth Amendment's equal protection clause. Question: Does Virginia's creation of a women's-only academy, as a comparable program to a male-only academy, satisfy the Fourteenth Amendment's Equal Protection Clause? Holding: no,the Court held that VMI's male-only admissions policy was unconstitutional. Because it failed to show "exceedingly persuasive justification" for VMI's gender-biased admissions policy, Virginia violated the Fourteenth Amendment's equal protection clause.

Craig v. Boren INTERMEDIATE SCRUTINY TEST USED TODAY FOR GENDER DISCRIMINATION

(Equal Protection: Gender) The Court in Boren established that in gender discrimination cases, the Court would utilize an "Intermediate Scrutiny Test." 1 Important governmental objective. 2 Governmental action must be substantially related to achievement of those objectives. This is the test utilized to present day. Facts: An Oklahoma law prohibited the sale of "nonintoxicating" 3.2 percent beer to males under the age of 21 and to females under the age of 18. Curtis Craig, a male then between the ages of 18 and 21, and a licensed vendor challenged the law as discriminatory. Question: Did an Oklahoma statute violate the Fourteenth Amendment's Equal Protection Clause by establishing different drinking ages for men and women? Holding: held that the statute made unconstitutional gender classifications. The Court held that the statistics relied on by the state of Oklahoma were insufficient to show a substantial relationship between the law and the maintenance of traffic safety. Generalities about the drinking habits of aggregate groups did not suffice. In Mississippi University for Women v. Hogan (1982), the Court held a state-operated single-sex school (for women) could not deny admission to a male. In Hogan, the Court was particularly attuned to the state's usage of gender stereotypes.

Moose Lodge No. 107 v. Irvis

(Equal Protection: Race) Facts: Irvis, a black man who was a guest of a white member of the Moose Lodge No. 107, was refused service at the club's dining room because of his race. The bylaws of the Lodge limited membership to white male Caucasians. Question: Did the discriminatory practices violate the Equal Protection Clause of the Fourteenth Amendment? Holding: No. the Moose Lodge's refusal to serve food and beverages to Irvis because he was black did not violate the Fourteenth Amendment. The Court found that the Moose Lodge "a private social club in a private building," and thus not subject to the Equal Protection Clause.

Shelly v. Kraemer

(Equal Protection: Race) "State action" means some sort of state or federal governmental involvement in the discrimination. In Shelley, the Court adopted a broad approach to the "state action" requirement, at least in the area of restrictive covenants. - In this case, the Supreme Court ruled that courts could not enforce private "covenants" meant to exclude blacks from residential neighborhoods. Facts: The Kraemers were a white couple who owned a residence in a Missouri neighborhood governed by a restrictive covenant. This was a private agreement that prevented blacks from owning property in the Kraemers' subdivision. The Shelleys were a black couple who moved into the Kraemers neighborhood. The Kraemers went to court to enforce the restrictive covenant against the Shelleys. Question: Does the enforcement of a racially restrictive covenant violate the Equal Protection Clause of the 14th Amendment? Holding: State courts could not constitutionally prevent the sale of real property to blacks even if that property is covered by a racially restrictive covenant. Standing alone, racially restrictive covenants violate no rights. However, their enforcement by state court injunctions constitute state action in violation of the 14th Amendment

Burton v. Wilmington Parking Authority LOOK AT 14TH FOR EQUAL PROTECTION STUFF FOR TEST

(Equal Protection: Race) Burton demonstrated the Warren Court's willingness to impose an expansive view on the state action question. gov't owned facility + discrimination = state action Facts: Burton, an African-American, entered the Eagle Coffee Shoppe, a restaurant leasing space within a parking garage operated by the Wilmington Parking Authority, and was denied service solely because of his race. The Parking Authority is a tax-exempt, private corporation Question: Did the Eagle Coffee Shoppe's refusal to serve Burton constitute a violation of the Equal Protection Clause of the Fourteenth Amendment? Holding: Yes. the restaurant, as a recipient of assistance by the Parking Authority, clearly benefited from the city's aid and "constituted a physically and financially integral and, indeed, indispensable part of the State's...plan to operate its project as a self-sustaining unit."

Parents Involved in Community Schools v. Seattle School District No. 1

(Equal Protection: Race) Facts: The Seattle School District allowed students to apply to any high school in the District. Since certain schools often became oversubscribed when too many students chose them as their first choice, the District used a system of tiebreakers to decide which students would be admitted to the popular schools. The second most important tiebreaker was a racial factor intended to maintain racial diversity. Question: 1) Do the decisions in Grutter v. Bollinger and Gratz v. Bollinger apply to public high school students? 2) Is racial diversity a compelling interest that can justify the use of race in selecting students for admission to public high schools? 3) Does a school district that normally permits a student to attend the high school of her choice violate the Equal Protection Clause by denying the student admission to her chosen school because of her race in an effort to achieve a desired racial balance? Holding: No, no, and yes. the Court applied a "strict scrutiny" framework and found the District's racial tiebreaker plan unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. held that the student assignment plan of Seattle Public Schools and Jefferson County Public Schools does not meet the narrowly tailored and compelling interest requirements for a race-based assignment plan because it is used only to achieve "racial balance." Public schools may not use race as the sole determining factor for assigning students to schools. equitable remedy- something not connected with personal injury, fix the floor because you sliped *******Milliken v. Bradley (1974) indicated that equitable remedies typically could not be used in the de facto segregation situation (as opposed to de jure segregation).

Loving v. Virginia

(Equal Protection: Race) Recall that in order to have an Equal Protection Clause violation, you must demonstrate "invidious discrimination. In Washington v. Davis (1976), the Court held that a successful constitutional challenge under the Equal Protection Clause requires proof of discriminatory intent. In other words, disparate impact is not enough to establish an Equal Protection violation. 1967 strikes down states ability to outlaw interracial marriage . cited as a denial of equal protection (14th amen) clause becomes the go to argument for any race based case Facts: two residents of Virginia, Mildred Jeter, a black woman, and Richard Loving, a white man, were married in the District of Columbia. The Lovings returned to Virginia shortly thereafter. The couple was then charged with violating the state's antimiscegenation statute, which banned inter-racial marriages. Question: Did Virginia's antimiscegenation law violate the Equal Protection Clause of the Fourteenth Amendment? Holding: Yes. distinctions drawn according to race were generally "odious to a free people" and were subject to "the most rigid scrutiny" under the Equal Protection Clause. The Virginia law, the Court found, had no legitimate purpose "independent of invidious racial discrimination. violated the Due Process Clause of the Fourteenth Amendment.

Brown v. Board of Education(I)

(Equal Protection: Race) trying to move away from the "separate but equal doctrine and plessy. Supreme Court appeared willing to make this move, given its rulings regarding discrimination in higher education (e.g., Sweatt v. Painter). Both Browns gutted the plessy decision Facts: Black children were denied admission to public schools attended by white children under laws requiring or permitting segregation according to the races. Questions: Does the segregation of children in public schools solely on the basis of race deprive the minority children of the equal protection of the laws guaranteed by the 14th Amendment? Holding: Yes. Despite the equalization of the schools by "objective" factors, intangible issues foster and maintain inequality. The long-held doctrine that separate facilities were permissible provided they were equal was rejected. 1954 - The Supreme Court overruled Plessy v. Ferguson, declared that racially segregated facilities are inherently unequal and ordered all public schools desegregated.

Brown v. Board of Education (II)

(Equal Protection: Race) How the task of brown 1 be accomplished Facts: After its decision in Brown I which declared racial discrimination in public education unconstitutional, the Court convened to issue the directives which would help to implement its newly announced Constitutional principle. Given the embedded nature of racial discrimination in public schools and the diverse circumstances under which it had been practiced, the Court requested further argument on the issue of relief. Question: What means should be used to implement the principles announced in Brown I? Holding: The Court held that the problems identified in Brown I required varied local solutions. Chief Justice Warren conferred much responsibility on local school authorities and the courts which originally heard school segregation cases. They were to implement the principles which the Supreme Court embraced in its first Brown decision. "with all deliberate speed." The primary duty for ending segregation rested with local school boards. Oversight responsibility for the process rested with the local district courts. District courts were to impose plans tailored to a district school's specific conditions. Ending segregation was to happen with "all deliberate speed." Many districts (in the South) dragged their feet and resented the process. Because of the feet-dragging, Brown did not have an immediate impact. See Table 13-1 on page 627.

Swan v. Charlotte-Mecklenburg Board of Education

(Equal Protection: Race) South dragging its feet to end segregation in schools Facts: After the Supreme Court's decision in 1954 in Brown v. Board of Education, little progress had been made in desegregating public schools. One example was the Charlotte-Mecklenburg, North Carolina, system in which approximately 14,000 black students attended schools that were either totally black or more than 99 percent black. Question: Were federal courts constitutionally authorized to oversee and produce remedies for state-imposed segregation? Holding: the Court held that once violations of previous mandates directed at desegregating schools had occurred, the scope of district courts' equitable powers to remedy past wrongs were broad and flexible. The Court ruled that 1) remedial plans were to be judged by their effectiveness, and the use of mathematical ratios or quotas were legitimate "starting points" for solutions; 2) predominantly or exclusively black schools required close scrutiny by courts; 3) non-contiguous attendance zones, as interim corrective measures, were within the courts' remedial powers; and 4) no rigid guidelines could be established concerning busing of students to particular schools. Court's decision in Swann reaffirmed the broad powers of district courts in implementing desegregation. Plans imposed by the courts can affect teacher placement, school construction and maintenance, staff assignment, and funding equalization. Judges could use the overall racial composition of the district's students to set goals for racial balance. The Court did indicate limits to the district courts' powers. Judicial remedies could: 1 Only be used when there was a determination of a constitutional violation (de jure discrimination). 2 Remedies imposed must be tailored to compensate for the equal protection violation. ***** de jure violation; de facto discrimination was not a basis for crafting remedies (See Milliken v. Bradley (1974)). Segregation may exist de facto, but may not be the result of past or continuing de jure discrimination.

R.A.V. v. City of St. Paul, Minnesota

(Freedom of Speech: Hate Speech) "hate speech," speech that arises from hostile, discriminatory, and prejudicial attitudes toward another person's innate characteristics, such as sex, race, ethnicity, religion, or sexual orientation. Facts: Several teenagers allegedly burned a crudely fashioned cross on a black family's lawn. Charged one teen under local bias display symbol arouses anger alarm or resentment in others on the basis of race, color, creed, religion or gender Question: Is the ordinance overly broad and impermissibly content-based in violation of the First Amendment free speech clause? Holding: yes the justices held the ordinance invalid on its face because "it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses." Under the ordinance, for example, one could hold up a sign declaring all anti-semites are bastards but not that all Jews are bastards. Government has no authority "to license one side of a debate to fight freestyle, while requiring the other to follow the Marquis of Queensbury Rules." Basis of content no discrimination Facial Challenge???? View point discrimination?? Content discrimination?? Over breath doctrine- Void for vagueness- statue that isn't reasonably specific is void was a United States Supreme Court case involving hate speech and the free speech clause of the First Amendment to the Constitution of the United States; The St. Paul Bias-Motivated Crime Ordinance was struck down both because it was overbroad, proscribing both "fighting words" and protected speech, and because the regulation was "content-based," proscribing only activities which conveyed messages concerning particular topics. Judgment of the Supreme Court of Minnesota reversed.

Snyder v. Phelps

(Freedom of Speech: Hate Speech) Public or private concern Facts: The family of deceased Marine Lance Cpl. Matthew Snyder filed a lawsuit against members of the Westboro Baptist Church who picketed at his funeral. The family accused the church and its founders of defamation, invasion of privacy and the intentional infliction of emotional distress for displaying signs Question: Does the First Amendment protect protesters at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased? Holding: Yes. The Court held that the First Amendment shields those who stage a protest at the funeral of a military service member from liability. Diversity Jurisdiction- if two parties are from the same states and over $15,000 it can go to federal court. obnoxious and hateful utterances are protected, as long as such communication remains within the realm of expression. speech was public because wasn't geared toward particular family, relates to public concern, 100 ft away, family couldn't see signs, peacful demonstration

Schenck v. United States(1918)

(Freedom of Speech: Public Safety and Order) Facts: During World War I, Schenck mailed circulars to draftees that suggested the draft was a monstrous wrong motivated by the capitalist system. Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment. question: Are Schenck's actions (words, expression) protected by the free speech clause of the First Amendment? Holmes concluded that Schenck is not protected in this situation.The character of every act depends on the circumstances. Clear and Present danger test was used in this case.If the words used in circumstances and are of such a nature as to create a clear and present danger that they will bring about the problems the law is aimed to prevent. Must look to content, but also context. Established the "clear and present danger" principle. "Yelling fire in a crowded theater" Violation of freedom of speech? No because endangered public. The Sedition Act of 1798- made it a crime to write, print, utter, or publish malicious material that would defame the federal government,the president, or the members of Congress.The Act expired in 1801. Espionage Act of 1917- prohibited any attempt to "interfere with the operation or success of the military or naval forces of the United States...to cause insubordination...in the military or naval forces...or willfully obstruct the recruiting or enlistment service of the United States."

Brandeburg v. Ohi0

(Freedom of Speech: Public Safety and Order) Facts: Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," Question: Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments? Holding: The Court's Per Curiam opinion held that the Ohio law violated Brandenburg's right to free speech. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action." The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. -The Brandenburg test is now the test the Court uses in free speech-public order cases. -Test: If the advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action, the State can prohibit the speech. Generally, in theses cases the Court has taken the position that the degree of protection offered by the First Amendment varies according to: 1 Nature of the speech-The Court gives the highest priority to speech directed at political and social issues. Political speech receives "strict scrutiny" protection. "Lesser" speech, like commercial speech (advertising) receives a lower standard (intermediate scrutiny; 2 Place where speech occurs- Traditional Public Forum: streets, parks, traditionally public areas (strict scrutiny).Designated or Limited Public Forum: areas that the government has dedicated to expression ex. city auditoriums.Non-Public Forums: Jails rational basis. 3 Interests the Government is pursuing- pg 228-229 4 Kind of regulation Government impose-Content-based vs. Content-neutral regulations. Content-based regulations: Strict scrutiny. Content-neutral regulations: Reasonable time, place, and manner restrictions permissible to meet a legitimate governmental interest.

United States v. O'Brien

(Freedom of Speech: Public Safety and Order) Facts: David O'Brien a pacifist could not kill and three others burned their draft cards on the steps of a South Boston courthouse. The four were charged with violating a 1965 Amendment to the Selective Service Act of 1948 that made it illegal to "destroy or mutilate" draft cards. Issue: Whether the 1965 Amendment was unconstitutional as applied to O'Brien because his act of burning the draft card was protected "symbolic speech?" Holding: The criminal ban on burning draft cards did not violate O'Brien's First Amendment right to engage in symbolic speech, because the ban's impact on speech was only incidental and was justified by the significant governmental interest in maintaining an efficient and effective military draft system. Court's Reasoning: When "speech" and "nonspeech" elements are combined in the same expressive conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on speech. ****Governmental interest is justified if: 1 Regulation is within constitutional power of the government. 2 Regulation furthers an important or substantial interest. 3 Governmental interest is unrelated to the suppression of free expression. 4 If the incidental restriction on First Amendment freedoms is no greater than is essential to the furtherance of that interest. the Court determined the government's power to raise and support armies was clearly a constitutional power Congress held. Further, the Court held that the preservation of draft cards was a substantial governmental interest

Cohen v. California

(Freedom of Speech: Public Safety and Order) Facts: Kid protested Vietnam War by wearing a jacket emblazoned with "F*CK THE DRAFT. STOP THE WAR" The young man, Paul Cohen, was charged under a California statute that prohibits "maliciously and willfully disturb[ing] the peace and quiet of any neighborhood or person [by] offensive conduct." Question: Did California's statute, prohibiting the display of offensive messages such as "**** the Draft," violate freedom of expression as protected by the First Amendment? Holding: Yes. the Court reasoned that the expletive, while provocative, was not directed toward anyone; besides, there was no evidence that people in substantial numbers would be provoked into some kind of physical action by the words on his jacket. "one man's vulgarity is another's lyric." In doing so, the Court protected two elements of speech: the emotive (the expression of emotion) and the cognitive (the expression of ideas). Local Governments may require permits: 1 Permits cannot be denied based on the content of the group's message. *****2 Permit procedures must be based on legitimate time, place, and manner considerations. Ward v. Rock Against Racism (1989), performing in Central Park to use city-supplied amplification equipment supervised by a city-authorized sound technician.

Gitlow v. New York

(Freedom of Speech: Public Safety and Order) Facts: During the Red Scare Gitlow, a socialist, was arrested for distributing copies calling for the establishment of socialism through strikes and class action of any form. punished advocating the overthrow of the government by force. Issue: Is the New York law punishing advocacy to overthrow the government by force an unconstitutional violation of the free speech clause of the First Amendment? Holding: Threshold issue: Does the First Amendment apply to the states? Yes, by virtue of the liberty protected by due process that no state shall deny (14th Amendment). On the merits, a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger. The rationale of the majority has sometimes been called the "dangerous tendency" test. (1925) Bill of Rights does apply to nation and states, incorporated the First Amendment and free speech Gitlow cases continued to move away from the "clear and present danger" test to the "Bad Tendency" test The Court used the "Clear and Present Danger" Test for only 8 months before moving on to another test, the Bad Tendency Test, asked: Do the words have a tendency to bring about evil consequences?

Hill v. Colorado

(Freedom of Speech: Public Safety and Order) In Adderley, about 200 Florida A&M students marched from the university to the county jail to protest the earlier arrest of several classmates.The Adderley Court held that because the jail was not a Traditional Public Forum, the state's interest in security surpassed the free speech rights of the individuals. Facts: A Colorado statute makes it unlawful for any person within 100 feet of a health care facility's entrance to "knowingly approach" within 8 feet of another person, without that person's consent, Leila Hill and others, sidewalk counselors who offer abortion alternatives to women entering abortion clinics claiming violations of their First Amendment free speech rights and right to a free press. Question: Does Colorado's statutory requirement that speakers obtain consent from people within 100 feet of a health care facility's entrance before speaking, displaying signs, or distributing leaflets to such people violate the First Amendment rights of the speaker? Holding: Colorado statute's restrictions on speech-related conduct are constitutional. concluded that the statute "is not a regulation of speech. Rather, it is a regulation of the places where some speech may occur." **Public Demonstrations_____Forum Analysis(free speech zones) Pg 246-247,227-228 Edwards v. South Carolina (1963), high school and college students marched from a church to the State Capitol Building to submit a protest. ***Okay because it happened at a Traditional public Forum Adderley v. Florida, jail protest not okay because jail isnt a Traditional public forum

Dennis v. United States

(Freedom of Speech: Public Safety and Order) Related Cases: United States v. Carolene Products- the Court appeared to move toward greater free speech protections. Important******Carolene Products contained a footnote - Footnote Four - which discussed the protection of "Preferred Freedoms." In short, these freedoms were freedoms so central to the constitutional order, that greater protection should exist for them (including, free speech under the First Amendment). *****Preferred Freedoms- means the judiciary will apply special scrutiny to laws that appear to restrict freedom of expression, especially as those laws related to the articulation of unpopular political views. The Court, in essence, will assume a special role for protecting civil rights and civil liberties and be vigilant in the protection of the rights of minorities and the politically unpopular. Facts: the leaders of the Communist Part of America were arrested and charged with violating provisions of the Smith Act. The Act made it unlawful to knowingly conspire to teach and advocate the overthrow or destruction of the United States government. Question Did the Smith Act's restrictions on speech violate the First Amendment? Holding: the Court upheld the convictions of the Communist Party leaders and found that the Smith Act did not "inherently" violate the First Amendment. Dennis displays the Court's differing views about what standard to apply. A plurality of the Court accepted Chief Justice Vinson's "clear and probable danger" test. Absolute Freedoms Test.

Chaplinksy v. New Hampshire

(Freedom of Speech: Public Safety and Order) "Fighting words" are outside the protection of the First Amendment. ****Fighting words are defined as those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. "fighting words" doctrine: the government may regulate words which by their very utterance inflict injury or tend to incite an immediate breach of peace. never been overruled or expanded. Facts: Jehovah's Witness member Walter Chaplinsky was selling biblical pamphlets and religious literature on a public street. A crowd assembled and several took offense to Chaplinsky's comment. breaking a law prohibiting the use of "any offensive, derisive, or annoying word to any other person who is lawfully in the street." Issue: Did the application of the New Hampshire statute violate Chaplinsky's First Amendment rights to free speech? Holding: No, the statute did not impermissibly abridge Chaplinsky's free speech rights.

Texas v. Johnson

(Freedom of Speech: Public Safety and Order) A 1989 case in which the Supreme Court struck down a law banning the burning of the American flag on the grounds that such action was symbolic speech protected by the First Amendment. Facts: At the end of the protest march in dallas, Johnson unfurled an American flag, doused it in kerosene, and set it on fire. Authorities arrested Johnson, violating the Texas flag desecration law. Issue: Whether a statute that criminalizes the desecration of the American flag violated Johnson's First Amendment right to engage in symbolic speech? Holding: A state statute banning desecration of the American flag is unconstitutional under the First Amendment's protection for symbolic speech. Court determines flag burning is expressive conduct because such activity has an intent to convey a particularized message, and the likelihood was great that the message would be understood by those who viewed it. This test is how we know there is expressive conduct at issue. the Court says that the State alleges two interests: 1 Preventing breaches of the peace, and 2 Preserving the flag as a symbol of nationhood and national unity the most exacting scrutiny" applies "marketplace of ideas," where expressions are permitted to clash to see which position ultimately wins out in a public debate. Congress in response passed the Flag Protection Act of 1989 (a federal statutory attempt to reverse the decision;

**West Virginia Board of Education v. Barnette

(Freedom of Speech: Student Speech & Right not to Speak) Facts: The West Virginia Board of Education required that the flag salute be part of the program of activities in all public schools. All teachers and pupils were required to honor the Flag; refusal to salute was treated as "insubordination" and was punishable by expulsion and charges of delinquency. Question: Did the compulsory flag-salute for public schoolchildren violate the First Amendment? Holding: the Court overruled its decision in Minersville School District v. Gobitis and held that compelling public schoolchildren to salute the flag was unconstitutional. The Court found that such a salute was a form of utterance and was a means of communicating ideas Related cases: In Wooley v. Maynard (1977), the Court held that it violated a person's right not to speak to force them to display the State of New Hampshire's slogan "Live Free or Die" on that individual's license plate. Maynard was a Jehovah's Witness (as the students were in Barnette). The Court in Wooley determined that the State's slogan was not ideologically neutral, and lacked a compelling reason to justify the requirement that required individual

**Tinker v. Des Moines ICSD

(Freedom of Speech: Student Speech & Right not to Speak) Facts: Students decided to wear black armbands throughout the holiday season to show support of Vietnam war. School create a policy that stated that any student wearing an armband would be asked to remove it, with refusal to do so resulting in suspension.sued the school district for violating the students' right of expression and sought an injunction to prevent the school district from disciplining the students. injunction????? Question: Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the students' freedom of speech protections guaranteed by the First Amendment? Holding: held that the armbands represented pure speech that is entirely separate from the actions or conduct of those participating in it. The Court also held that the students did not lose their First Amendment rights to freedom of speech when they stepped onto school property. In order to justify the suppression of speech, the school officials must be able to prove that the conduct in question would "materially and substantially interfere" with the operation of the school The arm band in schools case; First Amendment applied to public schools, and that administrators would have to demonstrate constitutionally valid reasons for any specific regulation of speech in the classroom. [symbolic speech] Tinker standard-material and intentionally interfered View point and content discrimination???????? Related cases: Bethel School District No. 403 v. Fraser (1986), the Court held a student's speech, which was laden with sexual innuendo, in support of a classmate who was running for a student government position could be the basis of student discipline

Morse v. Fredrick

(Freedom of Speech: Student Speech & Right not to Speak) Facts: "bong hits for Jesus"At a school-supervised event, Joseph Frederick held up a banner with the message "Bong Hits 4 Jesus," suspended Frederick for ten days. Question: 1) Does the First Amendment allow public schools to prohibit students from displaying messages promoting the use of illegal drugs at school-supervised events? 2) Does a school official have qualified immunity from a damages lawsuit under 42 U.S.C. 1983 when, in accordance with school policy, she disciplines a student for displaying a banner with a drug reference at a school-supervised event? Holding: Yes and not reached. ruling that school officials can prohibit students from displaying messages that promote illegal drug use. held that although students do have some right to political speech even while in school, though "cryptic," the Court affirmed that the speech rights of public school students are not as extensive as those adults normally enjoy.

Rumsfeld v. Forum for Academic and Institutional Rights, inc.

(Freedom of Speech: Student Speech & Right not to Speak) not talked about that much Facts: The Solomon Amendment, withholds some federal funding from colleges and universities that deny U.S. military recruiters the same access to students that other employers are given. The Forum for Academic and Institutional Rights challenged the law, arguing that it violated the schools' First Amendment rights to expressive association by requiring them to assist in military recruitment. Question: Does the Solomon Amendment, which witholds certain federal funds from colleges and universities that restrict the access of military recruiters to students, violate the First Amendment? Holding: No. held that the Solomon Amendment regulated conduct, not speech, and was therefore constitutional. Including military recruiters in receptions and interviews does not necessarily indicate university endorsement of the recruiters, colleges and universities that accept federal funds must allow military recruiters on their campuses

Hazelwood School District v. Kuhlmeier

(Freedom of the Press) Prior restraint cannot be imposed on the mass media. Facts: The Spectrum, the school-sponsored newspaper of Hazelwood East High School, was written and edited by students. In May 1983, Robert E. Reynolds, the school principal, received the pages proofs for the May 13 issue. Reynolds found two of the articles in the issue to be inappropriate, and ordered that the pages on which the articles appeared be withheld from publication. Question: Did the principal's deletion of the articles violate the students' rights under the First Amendment? Holding: No. held that the First Amendment did not require schools to affirmatively promote particular types of student speech. Educators did not offend the First Amendment by exercising editorial control over the content of student speech so long as their actions were "reasonably related to legitimate pedagogical concerns." Related to tinker??? yes tired to tie in tinker test controls content published, regulations fall into those which require the press to exclude info, or those which require the press to include info. In Miami Herald v. Tornillo (1974), the Court struck down a Florida law that compelled newspapers to publish "response" articles by candidates for political office when the paper criticized or attacked those candidates' records. The Tornillo case essentially stands for the proposition that the government has no constitutional authority to order a newspaper to publish anything. In other words, Tornillo has come to stand for the principle that government in the United States should keep their "hands off" newspapers. In Red Lion Broadcasting v. FCC (1969), the Court addressed the issue of whether broadcast media (radio and TV) should receive the same protections under the First Amendment as print media. Red Lion centered on the "fairness doctrine," which was an FCC policy requiring radio and television broadcasters to discuss public issues on their stations and to provide fair coverage to each side of those issues. The broadcasting company argued this was an unconstitutional intrusion into their right to free press, and thus ability to choose content. The Supreme Court disagreed and upheld the "fairness doctrine." In FCC v. Pacifica Foundation (1978), the Court held that of all forms of communication, broadcasting has the most limited First Amendment protection. The electronic media, the majority held, differ from the print media because they have a pervasive presence that an invade the privacy of the home and because they are uniquely available to children. Pacifica Foundation dealt with George Carlin's "Filthy Words" comedic routine and the "7 Dirty Words."

New York Times v. United States

(Freedom of the Press) This case was an exception to prior restraint was the protection of national security Facts: In what became known as the "Pentagon Papers Case," the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. The President argued that prior restraint was necessary to protect national security. This case was decided together with United States v. Washington Post Co. Question: Did the Nixon administration's efforts to prevent the publication of what it termed "classified information" violate the First Amendment? Holding: Yes. In its per curiam opinion the Court held that the government did not overcome the "heavy presumption against" prior restraint of the press in this case. per curiam???????? other exmaples: Embedded war reporters WikiLeakes Edward Snowden and NSA surveillance Protection of whisteblowers

Branzburg v. Hayes

(Freedom of the Press) not talked about much Facts: Branzburg a reporter, wrote a story about people using drigs which appeared in a Louisville newspaper. On two occasions he was called to testify before state grand juries which were investigating drug crimes. refused to appear Question: Is the requirement that news reporters appear and testify before state or federal grand juries an abridgement of the freedoms of speech and press as guaranteed by the First Amendment? Holding: No.Requiring reporters to disclose confidential information to grand juries served a "compelling" and "paramount" state interest and did not violate the First Amendment. no reporter privilege, even if there is a state media shield law

Near v. Minnesota

(Freedom of the Press) three central issues to freedom of the press- prior restraint, government control of the press, and special rights of reporters. Facts: Jay Near published a scandal sheet in Minneapolis, in which he attacked local officials, charging that they were implicated with gangsters. Minnesota officials obtained an injunction******* to prevent Near from publishing his newspaper under a state law that allowed such action against periodicals. The law provided that any person "engaged in the business" of regularly publishing or circulating an "obscene, lewd, and lascivious" or a "malicious, scandalous and defamatory" newspaper or periodical was guilty of a nuisance, and could be enjoined (stopped) from further committing or maintaining the nuisance. Injunction??? Question: Does the Minnesota "gag law" violate the free press provision of the First Amendment? Holding: held that the statute authorizing the injunction was unconstitutional as applied.The Court held that the statutory scheme constituted a prior restraint and hence was invalid under the First Amendment. Thus the Court established as a constitutional principle the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding. Prior Restraint Near published a newspaper indicating that public officials were gangsters. The state ordered him to stop publishing such newspapers. Result: SC ruled that this directly violates Free Press in 1st A. *prior restraint* - may only punish after publication

New York Times v. Sullivan

(Limits of Free Speech: Libel & Defamation) Facts: Decided together with Abernathy v. Sullivan, this case concerns a full-page ad in the New York Times which alleged that the arrest of the Rev. Martin Luther King, Jr. part of a campaign to destroy King's efforts to integrate public facilities and encourage blacks to vote. . Sullivan, filed a libel action against the newspaper and four black ministers who were listed as endorsers of the ad, claiming that the allegations against the Montgomery police defamed him personally. Question: Did Alabama's libel law, by not requiring Sullivan to prove that an advertisement personally harmed him and dismissing the same as untruthful due to factual errors, unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections? Holding: The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity). Under this new standard, Sullivan's case collapsed 1964; established guidelines for determining whether public officials and public figures could win damage suits for libel. To do so, individuals must prove that the defamatory statements were made w/ "actual malice" and reckless disregard for the truth Individuals must prove that statements were "actual malice" and reckless disregard for the truth to win a libel suit. *******KNOW NEW YORK TIMES TEST KNOW CURTIS PULISHING COMPANY V. BUTTS-public figures KNOW GETZ v. WELCh-getz test ****ACTUAL MALICE USED In Rosenbloom v. Metromedia (1971), the Court held the New York Times Test applied to all stories of public interest, regardless of the individual's public status. There was a bit of an outcry against this ruling, and the Court began to reconsider it within a few years. In Gertz v. Welch (1974), the Court held a person will be considered "public" if: 1 An individual achieves such pervasive fame or notoriety that they become a public figure for all purposes in all contexts; or 2 An individual voluntarily injects themselves or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.

Hustler Magazine v. Falwell

(Limits of Free Speech: Libel & Defamation) Facts: Story in Hustler Magazine featured a "parody" of an advertisement, modeled after an actual ad campaign, claiming that Falwell, had a drunken incestuous relationship with his mother in an outhouse.won on emotional distress. Question: Does the First Amendment's freedom of speech protection extend to the making of patently offensive statements about public figures, resulting perhaps in their suffering emotional distress? Holding: Yes. public figures, such as Jerry Falwell, may not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement of fact which was made with "actual malice." ****INTENTIONAL INFLICTION OF EMOTIONAL DIStress (IIED) *******KNOW ACTUAL MALICE USED ruled in favor of the magazine and reversed the lower court decision that the public official who was targeted in the parody cannot recover damages because the parody would not be considered as serious by other people so there really was no libel. Public officials cannot recover damages for emotional distress caused to them by the press

New York v. Ferber

(Limits of Free Speech: Obscenity) **** look at pg 380 Child porn flat out ban Facts: A New York child pornography law prohibited persons from knowingly promoting sexual performances by children under the age of sixteen by distributing material which depicts such performances. Question: Did the law violate the First and Fourteenth Amendments? Holding: No. it found that the state's interest in preventing sexual exploitation of minors was a compelling "government objective of surpassing importance." The law was carefully drawn to protect children from the mental, physical, and sexual abuse associated with pornography while not violating the First Amendment. violation of the child pornography that forbade any sale performance of children 16 and under depicting sexual conduct, was convicted but appealed the court and was protected by the first amendment

Miller v. California

(Limits of Free Speech: Obscenity) ******Miller test became standard for obscenity even today Talked about most in class Facts: Miller, after conducting a mass mailing campaign to advertise the sale of "adult" material, was convicted of violating a California statute prohibiting the distribution of obscene material. Question: Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee? Holding: held that obscene materials did not enjoy First Amendment protection. The Court modified the test for obscenity established in Roth v. United States and Memoirs v. Massachusetts, holding that "[t]he basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest. . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." The Court rejected the "utterly without redeeming social value" test of the Memoirs decision. A 1973 Supreme Court decision to determine whether material is obscene in terms of appealing to a "prurient interest" and being "patently offensive" and lacking in value.

Brown v. Entertainment Merchants Association

(Limits of Free Speech: Obscenity) Facts: The plaintiffs brought the claim under the First and Fourteenth Amendments seeking to invalidate a newly- enacted law that imposed restrictions and labeling requirements on the sale or rental of "violent video games" to minors. Question: Does the First Amendment bar a state from restricting the sale of violent video games to minors? Holding: Yes. affirmed lower court "Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection." banning violent video games encroaches on 1st amendment (restricts ideas)

United States v. Williams

(Limits of Free Speech: Obscenity) Not talked about really at all in class *Protection act? Facts: Michael Williams was convicted in federal district court of "pandering" (promoting) child pornography. The PROTECT Act proscribes the pandering of "any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe" that the material is illegal child pornography. The Act represents Congress's attempt to outlaw sexually explicit images of children - including both images of real children and computer-generated images of realistic virtual children. Question: Does the PROTECT Act abridge First Amendment freedom of speech by outlawing the pandering of material that is believed to be, or claimed to be, illegal child pornography? Holding: No. held that the statute was not overly broad as written. offers to engage in illegal transactions are categorically excluded from First Amendment protection, and he characterized the speech of an individual claiming to be in possession of child pornography in this category of unprotected speech. Upheld the 2003 Protect Act that makes it a crime to offer or solicit sexually explicit images of child on the Internet, regardless of whether the material turns out to consist solely of computer-generated images, or digitally altered photographs of adults, or even if the material is fraudulent and the material does not exist at all.

Planned Parenthood of Southeastern Pennsylvania v. Casey

(Right to Privacy & Abortion) ***Pre Viability- undo burden test applies gov can not place an obstacle in with mother ****post liability- ****(**Tri mester to pre viability Undue burden test: the government cannot impose restrictions on abortion in the "pre-viability stage" if they constitute an "undue burden test outweighs the woman's personal liberty interest and abortion can be regulated, even going so far as to ban it (except for an exception for the life or health of the mother). Facts: Among the new provisions, the law required informed consent and a 24 hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. Question: Can a state require women who want an abortion to obtain informed consent, wait 24 hours, and, if minors, obtain parental consent, without violating their right to abortions as guaranteed by Roe v. Wade? Holding: the Court again reaffirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the justices imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Under this standard, the only provision to fail the undue-burden test was the husband notification requirement. The opinion for the Court was unique: It was crafted and authored by three justices. Gonzalez v. Carhart (2007), the Court upheld the federal Partial-Birth Abortion Ban Act. The law in Gonzalez did not include an exception for the health of the mother, yet the Court upheld it. Gonzalez "assumed" Roe was still good law. The result in Gonzalez is a shift in the Court toward greater restrictions on abortion As it stands now, Roe and Casey are still good law, though the Court is very divided on the issue (see Table 10-3 in the textbook). Since at least Casey, rather than a total overruling, there has been a gradual whittling away on the right to an again, it upheld Roe, but added new restriction (24 hour waiting period, mandatory counseling, and minors needed permission). It also created the undue burden standard - all new restrictions had to be judged by whether or not they create an undue burden for the mothers. State's legislature amended its abortion control law. Law required informed consent and a 24 hour waiting period prior to the procedure. A married woman must notify husband. A minor must receive parental consent. Court upheld most procisions, but made the "undue burden test" to test validity of laws restricting abortions.

Roe v. Wade

(Right to Privacy & Abortion) Look at slides!!! lecture 30 Right to privacy due process 14th amendment ***Roe trimester test (table 10-2 PG. 417) strict scrutiny Viability technology development Facts: Roe, a Texas resident, sought to terminate her pregnancy by abortion. Texas law prohibited abortions except to save the pregnant woman's life. After granting certiorari, the Court heard arguments twice. Question: Does the Constitution embrace a woman's right to terminate her pregnancy by abortion? Holding: The Court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment. The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters. As a result, the laws of 46 states were affected by the Court's ruling. established national abortion guidelines; trimester guidelines; no state interference in 1st; state may regulate to protect health of mother in 2nd; state may regulate to protect health or unborn child in 3rd. inferred from right of privacy established in griswald v. connecticut

Griswold v. Connecticut HUGE DECSION

(Right to Privacy & Abortion) substantive rights/ Due Process considerations about the meaning of "liberty" in the Fifth and Fourteenth Amendments Lochner v. New York (1905), the Court struck down a New York law prohibiting bakery employees from working more than ten hours per day and sixty hours per week. The Lochner Court held there was a right to contract that had been violated (the contract between an employee and employer). ******First time right to privacy in constitution existed nothing on it before the case Facts: Both she and the Medical Director for the League gave information, instruction, and other medical advice to married couples concerning birth control. Griswold and her colleague were convicted under a Connecticut law which criminalized the provision of counselling, and other medical treatment, to married persons for purposes of preventing conception. Question: Does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives? Holding: Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. The Connecticut statute conflicts with the exercise of this right and is therefore null and void. found a "right to privacy" in the Consitution that would ban any state law against selling contraceptives

Cruzan v. Director Missouri Department of Health

(Right to Privacy & Personal Autonomy) 10-4 Table g 444 "substituted judgments": permitting relatives or guardians to"surmise" what the patient would have wanted or to act in the "best interest" of the patient In re Quinlan: a New Jersey Supreme Court decided that the right to privacy includes the right to decline medical treatment. Facts: Nancy Beth Cruzan was involved in an automobile accident which left her in a "persistent vegetative state." When Cruzan's parents attempted to terminate the life-support system, state hospital officials refused to do so without court approval. Question: Did the Due Process Clause of the Fourteenth Amendment permit Cruzan's parents to refuse life-sustaining treatment on their daughter's behalf? Holding: the Court held that while individuals enjoyed the right to refuse medical treatment under the Due Process Clause, incompetent persons were not able to exercise such rights. Absent "clear and convincing" evidence that Cruzan desired treatment to be withdrawn, the Court found the State of Missouri's actions designed to preserve human life to be constitutional. Because there was no guarantee family members would always act in the best interests Cruzan decision very clearly ruled that the 14th Amendment's Due Process Clause permits a competent individual to terminate medical treatment. Cruzan also held, however, that as to incompetent patients, the majority of justices indicated that states may fashion their own standards, including those that require "clear and convincing evidence" of the patient's interests. The Court would later go on to evaluate claims involving individuals who were not incapacitated in making their end of life decisions. Court found it acceptable to require "clear and convincing evidence" for removal of life support. (Right to Privacy & Personal Autonomy) look at slides lecture 31 In Washington v. Glucksberg (1997) Court held that state laws which made it a crime to assist another to commit suicide were constitutional. In these cases, the Court found that states had legitimate interests in: 1 Preserving human life. 2 Protecting the integrity and ethics of the medical profession. 3 Safeguarding the vulnerable from coercion. 4 Ensuring the value of life, even of those who are ready to die. The Court clearly found that if a State bans assisted suicide, (Right to Privacy & Personal Autonomy) Gonzalez v. Oregon (2006), the Court held that the federal government could not prevent physicians from dispensing drugs for the purpose of an assisted suicide. The situation involved Oregon's "Death with Dignity Act." Federal government argued that the Control Substances Act (CSA) of 1970 criminalized the distribution of drugs for the purposes of supporting assisted suicide. Note: Gonzalez is not technically a constitutional case; it's a statutory interpretation case 10-4 table pg 452 2006 - The Controlled Substances Act does not prohibit physicians prescribing drugs for the assisted suicide of the terminally ill under state (Oregon) law.

Plessy v. Ferguson LOOK AT ALL THE EQUAL PROTECTION SLIDES AGAIN

(Equal Protection: Race) ***Enforcement clause 13 banned slavery Congress also has the power to give meaning to the amendment through an enforcement clause. 14th due process and equal protection clauses enforcement clause, 14th does not apply to the federal government on its face state,person, equal protection all elements must be met for their to be a violation of equal protection. -state- includes counties,cities, towns "state action" -person- means people not just citizens - Equal protection- amendment prohibits discrimination. people entitled to be treat equitably, People have the right to be free from arbitrary and unreasonable treatment at the hands of state governments. Yick Wo v. Hopkins (1886), the Court held that the Equal Protection Clause applies to persons other than African-Americans, also protecting non-citizens who are targets of discrimination by States. Yick wo v Hopkins other non citizens equal protection unlawful "discrimination." tests 1 Rational Basis. The traditional test for analyzing equal protection claims. Asks: "Is the challenged discrimination rational?" Very deferential standard to the government. Burden of proof for showing discrimination rests with the party challenging the law to establish the law is irrational. Hard for the plaintiff to win. 2 Intermediate Scrutiny. Governmental action must: A. Serve an important governmental objective, and B. Law must be substantially related to the achievement of those objectives. 3 Strict Scrutiny Test is used when the state discriminates on the basis of a criterion that is inherently suspect or when there is a claim that the discrimination adversely affects the exercise of a fundamental right. Test requires: 1 Compelling governmental interest, and 2 Least restrictive means of achieving that interest. There is a presumption that state action is unconstitutional under this standard. Burden of proof is on the government to demonstrate that the law is constitutional. Hard test to satisfy. Example of strict scrutiny application: Race-based categorizations. Strict Scrutiny applies when a "suspect class" is being discriminated against. A suspect class is a "discrete and insular minority" that has experienced a history of unequal treatment and a lack of political power. The notion of a "suspect class" comes from United States v. Carolene Products (1938) Bolling v. Sharpe (1954), the Court held that the Due Process Clause of the 5th Amendment The Court has generally held that whatever is included for equal protection under the 14th Amendment also applies to the federal government through the 5th Amendment. This has come to be known as "Reverse Incorporation." The 13th, 14th, and 15th Amendments have enforcement mechanisms that permits Congress to pass laws to effectuate equal protection. Congress has used these "enforcement provisions" to pass laws designed to give effect and extent constitutional guarantees. See Box IV-1 on pages 608-609 of textbook. Sometimes the Court has said Congress has overstepped its bounds in passing enforcement laws (recall Boerne). As a result, Congress has also passed several civil rights laws pursuant to its Article I, Section 8 powers to regulate interstate commerce Facts: The state of Louisiana enacted a law that required separate railway cars for blacks and whites. In 1892, Homer Adolph Plessy--who was seven-eighths Caucasian--took a seat in a "whites only" car of a Louisiana train. He refused to move to the car reserved for blacks and was arrested. Question: Is Louisiana's law mandating racial segregation on its trains an unconstitutional infringement on both the privileges and immunities and the equal protection clauses of the Fourteenth Amendment? Holding: No, the state law is within constitutional boundaries. upheld state-imposed racial segregation. The justices based their decision on the separate-but-equal doctrine, that separate facilities for blacks and whites satisfied the Fourteenth Amendment so long as they were equal. Justice Brown conceded that the 14th amendment intended to establish absolute equality for the races before the law. In short, segregation does not in itself constitute unlawful discrimination. Scott v, sandford (dred scott case)