Con Law II
New York Times v. US
"Pentagon Papers Case" The Nixon administration attempted to prevent the NY Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of US activities in Vietnam. The President argued that prior restraint was necessary to protect national security. Court held this was unconstitutional and a prior restraint - they can publish.
Allegheny v. ACLU
1989 establishment clause case that ruled as unconstitutional publicly funded Nativity scenes without secular items. However, the Chanukah display was appropriately secular when surrounded by non-secular holiday displays (Christmas tree, presents, etc)
The Free Exercise Clause
A First Amendment provision that prohibits government from interfering with the practice of religion.
New York v. Ferber
A NY child pornography law prohibited persons from knowingly promoting sexual performances by children under the age of 16 by distributing material which depicts such performances. An individual was convicted for showing 2 films of young boys masturbating. Court held law was constitutional. Government may prohibit the exhibition, sale, or distribution of child pornography even if it does not meet the test for obscenity (Miller). State has a compelling interest in safeguarding the physical/psychological wellbeing of a child and said that child pornography is closely related to child abuse.
Nebraska Press Association v. Stuart
A Nebraska state trial judge was presiding over a widely publicized murder trial and entered an order restraining the press from publishing or broadcasting accounts of confessions made by the accused to the police for the murder of 6 persons. Judge felt it necessary to guarantee a fair trial. Court held the order was invalid. Any prior restraint on expression comes with a heavy presumption against its constitutional validity - most serious and least tolerable infringement. Look to: (a) the nature and extent of pretrial news coverage, (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity, and (c) how effectively a restraining order would operate to prevent the threatened danger. Must balance the 1st amendment and 6th amendment rights.
Califano v. Webster
A Social Security Act provision that advantages women in calculating old-age insurance benefits does not violate the Equal Protection Clause if it is directed towards remedying the historical effects of economic discrimination against women in the workforce. A classification based on gender must serve an important government interest and be substantially related to achieving that interest. Citing the historical wage gap between men and women, the Court said that allowing women to eliminate three low-wage years from their calculation remedies some part of this discrimination
Santa Fe Independent School District v. Doe
A school in the Santa Fe School District permitted student-led, student initiated prayer before each home football game. Result: The student led prayer violates the Establishment clause as the public speech takes place on government property and government-endorsed events which means the prayer would also have to be promoted. This is unconstitutional. The school argued it was individual speech, but the Court found the school had created a forum and only allowed a single student to speak, the student that was praying
Nguyen v. Immigration and Naturalization Service
A father had to go through steps in a short period of time, while for the mother, the child is automatically a citizen. Nguyen argues that had his mother been a citizen, he would not be deported. Court held this was constitutional. Court uses intermediate scrutiny and said there was a governmental interest in showing that a biological parent-child relationship exists. This is easy with the mother because she gives birth, not so with fathers.
overbreadth doctrine
A law is unconstitutionally overbroad if it regulates substantially more speech than the Constitution allows to be regulated, and a person to whom the law constitutionally can be applied can argue that it would be unconstitutional as applied to others. "What I am doing might be outside the First Amendment, but this could also harm people engaged in lawful conduct"
Rostker v. Goldberg
A ruling that held that Congress may draft men but not women.al Looks like rational basis review because it is a low level of scrutiny; it is such a low level because Congress can raise and regulate the Army. Court deferred to Congress and its decision that any future draft would need combat troops, and women were not eligible for combat. Found that men and women were not similarly situated for purposes of a draft.
Rosenberger v. University of Virginia
A university violated the first amendment of its Christian magazine by denying them the same funding resources as provided to secular student-run magazines.
Pierce v. Society of Sisters
Act requires parents to send children to a public school and Ps sued because this would ruin private schooling. Court held the Act was unconstitutional Court protected liberty of parents to control where their children go to school. Also the Catholic School has a right to exist and there is a right of parent to control child rearing and education for their children.
Virginia Board of Pharmacy v. Virginia Citizens Consumer Council
Acting on behalf of all prescription drug consumers, the Virginia Citizens Consumer Council challenged a Virginia statute that declared it unprofessional conduct for licensed pharmacists to advertise their prescription drug prices. Court finds this unconstitutional, commercial speech is protected by the 1st Amendment. (first time that commercial speech was protected by SCOUTS) Economic interests of the speaker should not matter in deciding whether speech is protected by the 1st Amendment, and neither should whether it is factual/opinion and ideas.
R.A.V. v. City of St. Paul
After a black family moved into a predominantly white neighborhood, several skinhead teenagers burned a crudely fashioned cross on the family's lawn. The police charged one of the teens under a local bias-motivated criminal ordinance that prohibited the display of a symbol that "arouses anger, alarm, or resentment in others based on race, color, creed, religion, or gender." Court found statute unconstitutional because it is a content based regulation. Fighting words laws will be upheld only if it does not draw content based distinctions among types of speech, such as prohibiting fighting words based on race, but not on political affiliations. 2 exceptions where content based discrimination is allowed: Where the distinction advances the reason why the category is unprotected Where the speech is meant to prevent secondary effects (ex: speech that would anger, alarm, or cause resentment).
Alienage Classifications Related to Self-Government and the Democratic Process
Although strict scrutiny is the general rule when the government discriminates against aliens, if the alienage classification is related to self-government and democratic process, rational basis review is used. State may deny aliens right to vote, hold office, and serve on juries.
Texas v. Johnson
At a Republican Convention, Johnson burned an American flag to protest the Reagan administration's policies. He was tried/convicted under a Texas law outlawing flag desecration specifically to offend others, and was sentenced to 1 year in jail and a $2,000 fine. Court overturns conviction - unconstitutional. Court applied the O'Brien test. Court said there was no disturbance of the peace, and the interest in preserving the flag as a symbol of the nation/unity is related to suppression of expression, so "most exacting scrutiny" applies. Here, speech was targeted because of its content, so it failed the O'Brien Test number 3
Virginia v. Black
Black was prosecuted for burning a cross, and was convicted of the same by a jury, under the cross-burning statute of Virginia. The statute bans cross burning with the object of creating fear in a person or a group. Such an action is taken to be prima facie evidence of such an intention, under a section of the law. Court held a ban on cross burning with intent to intimidate is constitutional, but using it as prima facie evidence of intent makes the statute unconstitutional.
Brandenburg v. Ohio
Bradenburg, a leader of the KKK, made a filmed speech at a rally and was later convicted under an Ohio Criminal Syndicalism Statute. The law made illegal advocating the "duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism." Court held this statute unconstitutional. Need to prove: Imminent harm, A likelihood of producing illegal action (reasonably likely to occur), and An intent to cause imminent illegality.
Saenz v. Roe
California could not require a new resident to wait a year before being eligible for welfare benefits that exceeded those available in the state from which the new resident came. The right to travel is a fundamental right protected under the Constitution The constitutional right to travel embraces 3 components: Right of a citizen of one state to enter and leave another state; Right to be treated as a welcome visitor rather than an unwelcome and; and Right to be treated like other citizens of the state (for those who wish to become permanent residents)
Geduldig v. Aiello
California has a public short-term disability program, but it does not cover disabilities from pregnancies. Court uses Rational Basis review here because they don't see this as a gender classification. Under constitution - pregnancy discrimination is not the same as gender classification. (I hate them) (I think this is from Erica's old outline and I love that she put that in) Under Title VII though, pregnancy discrimination is gender discrimination
Equal Protection Analysis, Classification
Can exist on the face of the law or can be facially neutral with a discriminatory impact. Need both discriminatory impact and proof there is an unlawful discriminatory purpose behind the law. Need either a facial classification or both disparate effects and an intent to discriminate. Hard to prove in gender and race cases.
Gratz v. Bollinger
Case in which Supreme Court held that University of Michigan's undergraduate admission program was not sufficiently "narrowly tailored" to consider race as a factor in admission decisions in order to achieve goal of a diverse student body. Court found the 20 point plus given to minorities on a 150 point total scale was closer to a quota than a mere plus factor
Chaplinsky v. New Hampshire
Chaplinsky, a Jehovah's Witness, called a city marshal a "********ed racketeer" and "a damned fascist" in a public place. He was arrested and convicted under a state law for violating a breach of the peace. Court upheld conviction. Fighting words are unprotected. Fighting Words - words that inflict injury or tend to incite an immediate breach of the peace - are not protected by the first amendment. Court identified 2 situations where speech constitutes fighting words: 1) When it is likely to cause a violent response against the speaker, and 2) When it is an insult likely to inflict immediate emotional harm. Since this case, the Court has never upheld a fighting words conviction. The scope of fighting words has narrowed. Usually found unconstitutional on vague/overbroad grounds or impermissible content-based restrictions of speech.
Ashcroft v. Free Speech Coalition
Child Pornography Prevention Act prohibited "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct," and any sexually explicit image that is advertised, promoted, etc. in a way that conveys the impression it depicts a minor engaging in sexually explicit conduct. Court found this statute unconstitutional. In order to be considered child pornography, the material must actually use children in its production. Government can only ban child pornography based on children being used in the making of the material.
Due Process Clause
Clause in the Fifth Amendment limiting the power of the national government; similar clause in the Fourteenth Amendment prohibiting state governments from depriving any person of life, liberty, or property without due process of law.
The Establishment Clause
Clause in the First Amendment that says the government may not establish an official religion. May different interpretations as to what the Establishment Clause means
Cohen v. California
Cohen was convicted for disturbing the peace for having a jacket that on its back the words, "**** the Draft" in a courthouse. Court overruled conviction. Fighting words only occur if the speech is directed at a specific person and likely to provoke a violent response.
Types of Less Protected Speech
Commercial Speech (can regulate if intermediate scrutiny is met) Sexually oriented speech
Central Hudson Test
Commercial Speech Test: 1) Does the speech advertise illegal activities or constitute false or deceptive advertising that is unprotected by the 1st Amendment? If yes, gov if free to regulate. If not, moved to prongs 2-4 2) Is the government's restriction justified by a substantial governmental interest? 3) Is the regulation of speech no more extensive than necessary to achieve the government's interest? 4) Is the regulation of speech no more extensive than necessary to achieve the government's interest? A regulation must pass all four parts to be upheld
Reno v. ACLU
Communications Decency Act of 1996 made it a federal crime to transmit obscene or indecent material over the Internet in a manner that is likely to be accessible by a minor. Specifically, it (1) prohibited sending obscene or indecent material to persons under 18 years of age and (2) prohibited sending patently offensive messages to persons under 18 years of age. Court held the prohibition unconstitutional. Court used strict scrutiny here. This was overbroad because it includes indecent material on top of patently offensive material.
When is Conduct Communicative?
Communicative Conduct Test: Is there intent to convey a specific message that is present? Is there a substantial likelihood that the message would be understood by those receiving it?
West Virginia Board of Education v. Barnette
Compelled speech case; decision by the Supreme Court of the United States holding that the Free Speech Clause of the First Amendment to the United States Constitution protected students from being forced to salute the American flag and say the Pledge of Allegiance in school.
Holder v. Humanitarian Law Project
Congress passed the Anti-Terrorism and Effective Death Penalty Act, which made it a federal crime to "knowingly provide material support or resources to a foreign terrorist organization." The Secretary of State designated 30 groups as terrorist organizations, including the Kurdistan Workers Party and the Tamil Tigers which engage in terrorism and humanitarian activity. People challenged the law, arguing that they could not train members of the groups on humanitarian aid. Court upheld statute - material support can be used for terror. Government's interest in combating terrorism is urgent and material support furthers terrorism.
Content-based restrictions
Content-based restrictions do not apply equally to all speech, but only restrict certain speech content. (Yards signs are allowed, but they can't be political) Content-based restrictions are subject to strict scrutiny.
Vagueness Doctrine
Court declares laws to be void on vagueness grounds "when they are so ambiguous that the reasonable person cannot tell what expression is forbidden and what is allowed." Vague laws provide insufficient notice, risk selective prosecution, or gives minimal guidance to law enforcement officials (giving them lots of discretion). It is unfair to punish a person without providing clear notice as to what conduct is prohibited.
Protected, but low value speech
Court has indicated that there is a category of sexual speech that does not meet the test for obscenity and is protected, but is of low value. Government has latitude to regulate such expression. The Court has repeatedly upheld zoning ordinances that restrict the placement of adult stores and clubs
Limited Public Forum
Court recognizes limited/designated forums - at some point, Government opened it up for some type of expression (ex: public schools). No viewpoint discrimination, but reasonable regulations are okay. Once the Government opens up a location to being a public forum, the same rules for public forums apply. The only thing that is different is that opening up for a specific purpose does not mean all purposes - can still have restrictions for being a limited public forum.
Bowers v. Hardwick
Court ruled that the constitution did not protect the practice of sodomy between homosexuals, and that the states could ban sodomy. Later overturned in Lawerence v. Texas
The Brandenburg Test
Current test used to evaluate whether speech is unprotected as inciting violence. Need to prove: 1) Imminent harm, 2) A likelihood of producing illegal action (reasonably likely to occur), and 3) An intent to cause imminent illegality.
US v. Windsor
DOMA says the words "marriage" and "spouse" refer to legal union between one man and one woman. Windsor is the widow and sole executor of the estate of her late spouse, Spyer, who died in 2009. Spyer left her estate to Windsor and because federal law did not recognize their marriage, the government imposed $363,000 in taxes (okay but do you know how big of an estate it must have been that they paid $363,000 in TAXES?? they had some moooooooney). Had their marriage been recognized, no taxes would have been imposed. Court held DOMA is unconstitutional. Court said it is up to states to recognize marriage, not the federal government. Court is unclear what standard of review is being used. Same-sex marriage is not declared a fundamental right. Court implies Congress was acting with animus towards same-sex couples. Held that the purpose and effect of DOMA was to disadvantage same-sex couples in violation of EP.
Young v. American Mini Theaters
Detroit adopted a zoning ordinance that restricted the location of adult movie theaters. The adult movie houses were not to be located within 1,000 ft. of any 2 other regulated uses and was to be located more than 500 ft. from a residential area. Court held zoning ordinance constitutional. Law does not limit the communication of the material; just the location of the message. Court did not apply strict scrutiny.
Equal Protection Analysis - Application of Scrutiny
Does the government action meet the level of scrutiny? (means ends analysis) Look to whether underinclusive or overinclusive. Underinclusive - does not apply to individuals who are similar to those whom the law does apply. Overinclusive - applies to those who need not be included in order for the government to achieve its purpose. *However, just because a law is underinclusive or overinclusive does not make it invalid. This does not matter in rational basis review. Equal protection not very effective for striking down laws subject to rational basis classifications.
Due Process/Equal Protection as a basis for protecting a fundamental right
Due Process - If a law denies a right to everyone, Due Process is best. Equal Protection - If the law denies a right to some while allowing it to others, Equal Protection is best.
Schneck v. United States
During WWI, Schenck mailed circulars to draftees. The circulars said that the draft was a monstrous wrong against humanity by Wall Street, and said, "Do not submit to intimidation." However, it advised peaceful petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to violate the Espionage Act by attempting insubordination in the military/obstructing recruitment. Court held the statute constitutional. Clear and Present Danger Test (NO LONGER GOOD LAW)- 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. Context and circumstances? Country is at war. Intended effect? To interfere with the draft.
City of Erie v. Pap's A.M.
Erie, Pennsylvania adopted an ordinance banning public nudity. When adopted the ordinance prohibiting public nudity, it was done with the clear objective of shutting down "Kandyland" a nude dancing club. Court held the ordinance constitutional. Court said that the city was justified in prohibiting nude dancing so as to stop the undesirable secondary effects such as crime, associated with the activity.
Rumsfield v. Forum for Academic and Institutional Rights
Forum for Academic and Institutional Rights is an association of law schools and faculties. They want to restrict military recruiting on their campuses because the object to a policy with respect to homosexuals in the military. Solomon Amendment states that if schools do not allow the military to recruit, they will not receive any federal funding. Court held this was constitutional. The Solomon Amendment limits conduct, not speech. Look to whether the alleged compelled speech violation results in the complaining speaker's own message to be offended (not from this case)
Fronterio v. Richardson
Frontiero, a lieutenant in the US Air force, sought a dependent's allowance for her husband. Law provided that the wives of members of the military automatically became dependents; however, husbands of female members were not dependents unless they were dependent on their wives for over ½ of their support. Frontiero's husband was slightly over ½ and her request was denied. Court held this was unconstitutional, but did not confirm that strict scrutiny was the standard for gender cases. Court found the government's interest in administrative convenience could not justify discriminatory practices. Only 4 votes for strict scrutiny (needed five for those of you keeping score at home).
Gender Classifications Benefitting Women
Gender classifications benefitting women based on role stereotypes will generally NOT be allowed. Gender classifications benefitting women designed to remedy past discrimination and differences in opportunity are generally permitted.
Age classifications
Gets rational basis review. Only race, national origin, gender, alienage, or legitimacy is a heighted scrutiny.
Substanative due process
Government must justify infringement by showing that its action is sufficiently related to adequate justification.
Procedural Due Process
Government must provide adequate procedures if it takes away a person's life, liberty, or property.
O'Brein's Test
Government regulation is justified if: If it is within the police power. It further a substantial governmental interest It is unrelated to content, and It is no broader than necessary.
Griswold v. Connecticut
Griswold gave information, instruction, and other medical advice to a married couple concerning birth control and was convicted under a Connecticut law that criminalized counseling for purposes of preventing pregnancy. Court holds this is unconstitutional. Although Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create a zone that establishes a right to privacy. First in long line of seminal cases to establish and build on an inherent right to privacy in the Constitution
Obegefell v. Hodges
Groups of same-sex couples sued their relevant state agencies in Ohio, Michigan, Kentucky, and Tennessee to challenge the constitutionality of those states' bans on same-sex marriage or refusal to recognize legal same-sex marriages (lookin' at you Ohio) that occurred in jurisdictions that provided for such marriages. Court held 14th Amendment requires a state to license a same-sex marriage and recognize a same-sex marriage between two people licensed in another state. Court decides marriage is a fundamental right (well its about ****ing time, right?). 4 Principle Fundamental Rights Test Is it inherent to the concept of individual autonomy? It protects the intimate association between 2 people It safeguards children and families, and It is a foundation of social order.
Procedural Due Process Evaluation
Has there been a deprivation? Is it of life, liberty, or property? Is it without due process of law?
Prior Restraint Doctrine
Highly suspected for the Court. An administrative system or a judicial order that prevents speech from occurring. Administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur. Basically, restriction on speech prior to it occurring. Exceptions - National Security and "judicial determination-type stuff."
types of unprotected speech
Incitement of illegal activity Fighting words Obscenity
Discrimination Against Non-Marital Children
Intermediate scrutiny applies. Laws that deny benefits to all non-marital children always violate Equal Protection. Ex: nonmarital children unable to sue under wrongful death statue, mom unable to sue for child's wrongful death, nonmarital children not able to receive public assistance. Laws that provide a benefit to some nonmarital children -apply intermediate scrutiny and determine whether there is an important interest served and whether the law is substantially related to that goal.
Stanley v. Illinois
Invalidated Illinois law under which a non-marital father was not a father, and the children were deemed orphans when the mother died, even though the couple had lived together throughout the children's lifetime. Court held Peter was entitled to Due Process Court says right to conceive/raise a family is a fundamental right.
Fundamental Right Test
Is a claimed liberty sufficiently important to be regarded as fundamental, even if it is not mentioned in the text of the Constitution? If a right is deemed fundamental under either Due Process or Equal Protection, strict scrutiny applies.
Framework for Analyzing Fundamental Rights
Is there a fundamental right? If a right is fundamental, government will be able to prevail only if it meets strict scrutiny, but if it is not fundamental, rational basis review applies. Judiciary will defer to the legislature unless there is discrimination against a "discrete and insular" minority or infringement of fundamental right (Carolene) Is the right infringed? If there is a right, has it been infringed upon? In evaluating if there is a violating of a right, it considers the "directness and substantiality of the interference. Is the government's action justified by a sufficient purpose? If a right is fundamental, government must present a compelling interest to justify the infringement; if it is not fundamental, only a legitimate purpose is needed. Are the means sufficiently related to the goal sought? Under strict scrutiny, government not only has to just prove a compelling purpose behind the law, it also has to prove the law is necessary to achieve the objective - requires that government show it could not attain the goal through any less restrictive means.
Mississippi University v. Hogan
Joe Hogan, a registered male nurse and qualified applicant, was denied admission to the Mississippi University for Women School of Women School of Nursing's program on the basis of sex. MUW was the oldest state-supported all-female college in the US. Court found this unconstitutional. Gender classification is permissible only by "exceedingly persuasive justification and that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.
San Antonio Independent School District v. Rodriguez
Large discrepancies in funding for school in Texas because school district funding is based on real estate taxes. Court held this form of school district funding was constitutional. Education is not a fundamental right, and no strict scrutiny for it. This did pass rational basis review.
Distinguishing Procedural and Substantive Due Process
Look at the remedy that is being sought. If arguing for more process, it is procedural due process. If arguing the government cannot do something, it is substantive due process.
Rational Basis Review
Lowest level of scrutiny used by the court, by the far the most deferential to the legislator. Any conceivable legitimate purpose is sufficient. Court will uphold laws even if they seem over or under inclusive as long as there is a conceivable legitimate purpose
Micheal M v. Superior Court
Michael M., a 17.5-year-old male, was found guilty of violating California's statutory rape law, which defined unlawful sexual intercourse as "an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years." Thus, only men could be held liable. Court held this was constitutional. Court found that the state had a strong interest in preventing "illegitimate pregnancy." Moreover, the risk of pregnancy itself constitutes a substantial deterrence to young females; no similar natural sanctions deter males.
Miller v. California
Miller conducted a mass mailing campaign to advertise the sale of "adult" material, and was convicted of violating a California statute that prohibited the distribution of obscene material. Court held the mailing was NOT protected by 1st Amendment. Miller Test: Describe/Depict sexual activity as defined by the state. If the average person, using "contemporary community standards," would find that the work, taken as a whole, appeals to a prurient interest, A prurient interest is one that excited lustful thoughts, and is defined by a community standard (wherever the crime is prosecuted). Must depict the sexual activity in a patently offensive way, AND If the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (Lacks societal merit - look to national standards for this) Social value is determined by a national standard.
How is discriminatory purpose shown?
Need racial impact and discriminatory intent or purpose. If discriminatory purpose is even 1 factor in the decision, the law is not upheld. Look to: Historical background Sequence of events leading up to decision Departures from usual procedural sequence. Substantive departures Legislative or administrative history Testimony by member/official.
US v. O'Brien
O'Brien burned his draft card at a Boston courthouse in order to express his opposition to war. He was convicted under a federal law that made the destruction or mutilation of draft cards a crime. Court held this was constitutional. Court said when there are speech and non-speech elements there is a government interest in regulating the non-speech element and intermediate scrutiny is applied. O'Brien Test - Government regulation is justified if: If it is within the police power. It further a substantial governmental interest It is unrelated to content, and It is no broader than necessary.
Skinner v. Oklahoma
Oklahoma has a 3 strike policy with criminal offenses and sterilization. Court struck this down. The right to procreate is a fundamental right. Strict scrutiny applies. Court notes that the statute makes no difference between other crimes like larceny, fraud, etc.
Daniels v. Williams
P slipped on a pillow left on the stairs by a correctional officer in prison. P argues that because the state is entitled to the defense of sovereign immunity, he is deprived of liberty without due process. Court disagrees, no violation. Need more than just negligence for a procedural due process claim. Not enough that monetary damages are not available.
Planned Parenthood v. Casey
Pennsylvania Abortion Control act required informed consent and a 24-hour waiting period prior to an abortion. Additionally, a minor seeking an abortion required the consent of one parent (with judicial bypass), and a married woman seeking an abortion had to indicate that she had notified her husband of the abortion. Court upheld Roe, but discarded the trimester framework and replaced it with an "undue burden" standard. Pre-Viability --> State may not regulate if undue burden (purpose/effect of a substantial obstacle) Court says that to be an "undue burden," an abortion regulation has to have 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. Post-Viability --> State may prohibit with exceptions for woman's life/health. (Same as Roe) Abortion is not a fundamental rights. Strict Scrutiny overturned
Categories of Fundamental Rights examples
Protecting family autonomy, Sexual activity/orientation, Medical care decision making, Traveling, Voting, Access to courts
public forum
Public Forums can include a number of different locations, such as roadways, sidewalks, parks, etc. - where public gatherings typically happen. No viewpoint discrimination, content based regulations - S/S, content neutral regulations - I/S, Reasonable time, place, and manner regulations are okay.
Central Hudson Gas & Electric Corp. v. Public Service Commission
Public Service Commission of New York, in the interest of conserving energy, enacted a regulation that prohibited electric utilities from promoting electricity use. The regulation distinguished promotional advertising from informational advertising, which was permitted (promotional was not). Central Hudson Gas and Electric challenged the regulation. Court held this is unconstitutional for failing #4 of the test. Commercial Speech Test - Similar to intermediate scrutiny: Does the speech advertise illegal activities or constitute false or deceptive advertising that is unprotected by the 1st Amendment? Is the government's restriction justified by a substantial governmental interest? Does the law directly advance the government's interest? Is the regulation of speech no more extensive than necessary to achieve the government's interest? Government has the burden of proof under this test. Also, you do not use the least restrictive means, just a good fit.
The right to procreate
Recognized as a fundamental right, apply strict scrutiny
Graham v. Richardson
Richardson was a lawfully admitted resident alien who emigrated from Mexico and resided in Arizona. She became totally disabled, applies for benefits, but was denied because she did not live in the country for 15 years. Court held this was unconstitutional. Classifications based on alienage, like nationality or race, are inherently suspect and subject to close judicial scrutiny. Strict scrutiny applies They are part of a discrete and insular minority. Aliens, as well as citizens, are persons for equal protection.
Roe v. Wade
Roe, a Texas resident, wanted to get an abortion. Texas law prohibited abortions except to save the pregnant woman's life. Court held that a woman's right to an abortion fell within the right to privacy and that the law violated DP. Court found that there has to be a balance between the child's rights and the parent's rights. It notes that the birth could lead to a distressful life and effects on mental and physical health, BUT the mother's right is NOT absolute. Trimester framework: No regulation is permitted during the first trimester, That regulations designed to protect the woman's heath (not state's interest in potential life) are permitted during the second trimester, and That when the fetus is viable, prohibitions are permitted provided the life/health of mother is not at stake.
Employment Division of Oregon v. Smith
Smith was a drug rehabilitation counselor and attended a Native American church where they consumed peyote as a hallucinogenic in accordance with their religious beliefs. Their employer drug tested them and fired them. They filed for unemployment compensation and they were denied. Oregon court used Sherbert and other cases and required benefits be given. Supreme Court held that they could not receive unemployment benefits regardless of religious purpose. Court held no strict scrutiny for these cases. Said the other cases involved hybrid rights - claims involving free exercise and other fundamental rights (ex: free speech, parental rights, etc.) Held only when free exercise is combined with another fundamental right is there enough to overturn a valid law. Held if the government already has in place a system of exemptions for categories, then they must also have an exemption for religion. Government cannot target people because of their faith. This will get you strict scrutiny. If a law is neutral and generally applicable, you cannot state a free exercise objection to it. You don't even get Rational Basis review - you just lose. Need a hybrid claim or individualized exemption claim. Only protection is being targeted because of your faith.
Fighting Words
Speech that is directed at another and is likely to provoke a violent response, unprotected by the 1st Amendment.
US v. Stevens
Stevens was convicted under federal law for "knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain." His conviction stems from an investigation into the selling of videos related to illegal dog fighting. He appealed his conviction, arguing that the law was unconstitutional because it violated his free speech under the 1st Amendment. Court held statute unconstitutional because overbroad. The Court will not create a new category of unprotected speech. They denied using a balancing test of relative social costs and benefits.
Scrutiny Applied for Fundamental Rights
Strict Scrutiny
Equal Protection Analysis - Scrutiny Level
Strict scrutiny - a law is upheld if it is proven necessary to achieve a compelling government purpose. Need a tight fit and no less discriminatory alternative. Discrimination based on race or nation origin (sometimes), or against aliens. Intermediate scrutiny - law is upheld if it is substantially related to an important governmental purpose. Discrimination based on gender and nonmarital children. Rational Basis Test - Law will be upheld if it is rationally related to a legitimate governmental purpose. Just need to suggest a plausible purpose. Immutable characteristics warrant heightened scrutiny Court considers ability of the group to protect itself through the political process. History of discrimination also relevant.
Classifications based on race and national origin
Strict scrutiny is used when government discriminates against people on the basis of their race/country of ancestor origin. Need to prove facial discrimination or facially neutral with a discriminatory purpose and impact.
Orr v. Orr
Struck down law requiring men to pay alimony but exempted similarly situated women from the same obligation as a benefit for women based on stereotypes
Loving v. Virginia (1967)
Struck down state's law banning interracial marriage as violation of the 14th Amendment equal protection clause. Even though this law is facially neutral, this was a racially discriminatory impact with a discriminatory intent. Court also can be read as saying marriage is a fundamental right.
Washington v. Davis
Supreme Court ruled that a test that has an adverse impact against a protected class is legal if it is job-related. This statute was neutral on its face with no discriminatory purpose. Even though there were disparate impacts, no intent to discriminate
Whole Women's Health v. Hellerstedt
Texas Bill requires abortion doctors to have admitting privileges at a hospital within 30 miles and have the minimum standards required for ambulatory surgical centers. Court found this violates woman's right to decide to have an abortion. Unnecessary regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right. Not using rational basis review - this is a balancing test.
Lawerence v. Texas
Texas statute makes it illegal for two people of the same sex to have a sexual relationship. When responding to a reported weapons disturbance on a private residence, Houston police entered Lawrence's apartment and witnessed him having sex with another man and he was convicted. Court held this is unconstitutional - violates due process. Right to privacy protects a right to engage in private consensual homosexual activity. Expressly overrules Bowers. Justice O'Connor concurs, would have upheld Bowers, but struck down the Texas statute as violation of equal protection.
Craig v. Boren
The 1976 ruling in which the Supreme Court established the "intermediate scrutiny" standard for determining gender discrimination. An Oklahoma law prohibited the sale of "non-intoxicating" 3.2 percent beer to males under the age of 21 and to females under the age of 18. Court holds this is unconstitutional. Establishes intermediate scrutiny - To withstand constitutional challenge, previous cases establish that classifications by gender (1) must serve important governmental interests and (2) must be substantially related to achievement of those objectives.
McIntyre v. Ohio Elections Commission
The Court held that an Ohio statute that prohibits anonymous political or campaign literature is unconstitutional. Anonymous materials are protected by the 1st Amendment - especially when there are leaflets advocating for a politically controversial viewpoint.
Palmer v. Thompson
The Court held that the city's decision to close public pools rather than segregate them, was constitutional because the closures affected all races equally and there had not been a sufficient showing of discriminatory purpose
Right to an education
The Supreme Court has declined to hold that education is a fundamental right entitled to constitutional protection. Classifications burdening access to education, therefore, are judged under the rational basis test. .
Brown v. Board of Education
The Supreme Court overruled Plessy v. Ferguson, declared that racially segregated facilities are inherently unequal and ordered all public schools desegregated.
Compelled Speech
The act of forcing someone to participate, either directly or indirectly, in speech to which they object; generally not allowed by the Supreme Court.
Palmore v. Sidoti
The court held that the court oder, which granted custody to the dad solely because the mom was living with a black man, was an unconstitutional racial classification because protecting the child from the "stigma" of an interracial marriage is not a compelling interest. Cannot look to hypothetical effects of private racial prejudice. Effects of racial prejudice cannot justify a racial classification removing an infant from the custody of its natural mother when she is appropriate for custody.
The Miller Test
The current judicial test for obscenity cases that considers community standards, whether the material is patently offensive, and whether the material taken as a whole lacks serious literary, artistic, political, or scientific value. (Personally I think this is a patently stupid test but I'm not SCOTUS so...) If the average person, using "contemporary community standards," would find that the work, taken as a whole, appeals to a prurient interest, A prurient interest is one that excited lustful thoughts, and is defined by a community standard (wherever the crime is prosecuted). Must depict the sexual activity in a patently offensive way, AND If the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (Lacks societal merit - look to national standards for this) Social value is determined by a national standard.
Michael H. v. Gerald D.
The right of a potential natural father to assert parental rights over a child born into a woman's existing marriage with another man is not traditionally recognized in historical jurisprudence and is not a fundamental right protected by the Due Process Clause of the Fourteenth Amendment. Court framed the right very specifically by saying "the right of an adulterous biological father" is not a fundamental right. Framing the rights as narrowly as it was here would eliminate many rights. The more narrow, the less likely; the broader, the more likely it is to receive protection.
Lemon Test
The three-part test for Establishment Clause cases that a law must pass before it is declared constitutional: it must have a secular purpose; it must neither advance nor inhibit religion; and it must not cause excessive entanglement with religion. (Antonin Scalia is still in his grave crying about it)
Alienage classifications
This is different from national origin classification that discriminate against individuals because of the country that a person, or his or her ancestors, come from. General rule is that strict scrutiny is used to evaluate discrimination against non-citizens. However, there are exceptions such as alienage classifications related to self-government/democratic process = rational basis review; discrimination against aliens = rational basis review, etc.
US v. Virginia
VMI boasted a long and proud tradition as Virginia's only exclusively male public undergraduate higher learning institution. The US brought suit, alleging male-only admissions was unconstitutional. Virginia proposed a separate Virginia Women's Institute for Leadership. Court used intermediate scrutiny and held VMI's admissions policy was unconstitutional and that VWIL was not enough. Used a higher level of intermediate scrutiny here 🡪 "exceedingly persuasive justification" for the action.= (Ruthie almost got us to strict scrutiny)
Sorrell v. IMS Health, Inc.
Vermont restricts the sale, disclosure, and use of pharmacy records. Court finds this unconstitutional. This is content based and viewpoint discrimination. States justification not enough under strict scrutiny. Usually, commercial cases do not get heightened scrutiny, so this is rare in that regard.
Troxel v. Granville
Washington allows any person to apply for visitation rights and children's paternal grandparents did. Their mother opposed this. Court held this Washington law is unconstitutional. The Supreme Court ruled that the due process clause of the Constitution protects against government interference with certain fundamental rights and liberty interests, including parents' fundamental right to make decisions concerning the care, custody, and control of their children.
Richmond v. J.A. Croson Co.
Without evidence of past particular race-based discrimination, a city may not enact a plan to provide a race-based set-aside to exclusively promote minority business enterprises, as this does not constitute narrowly-tailored means geared towards accomplishing a compelling state purpose.
Gender Classifications Standard
`Intermediate Scrutiny (I'm sorry Maddie I think it sucks too)
Fisher v. University of Texas
a case which ruled that strict scrutiny should be applied to determine the constitutionality of a race-sensitive admissions policy.
Grutter v. Bollinger
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. Court allowed the university's "critical mass" test, stating that it was not the same as a quota. Court says for "narrowly tailored," this is not a quota and not a racial track, it is a plus-program that uses race merely as a factor; believes it is a sufficiently narrow approach.
Burwell v. Hobby Lobby
exemptions for 'closely held' corporations regarding denial of health coverage for contraception because of the free exercise clause. The Court found the law was not narrowly tailored
Designated Public Forum
not traditionally open for speech, but government opens it for that purpose. Same restrictions as public forums
