con law cases pt 2

Washington v Davis

Blacks applied to be police officers They said that the proficiency test (reading, writing, etc) discriminated against them There is evidence that more blacks failed the test than whites Also they said that the test didn't reflect the job The central purpose of the equal protection clause of the fourteenth amendment is the prevention of official conduct discriminating on the basis of race Even if the statue is neutral on its face, it can still be bad But a class is not invalid under the EPC just because it affects a greater proportion of one race than of another The court must determine if it's a "racial classification" Strictest scrutiny The plaintiffs would be unlikely to win this claim if they based it on their individual failures The rule is designed to serve neutral ends Concurrence - frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor Test to let people into a police force Administered in a neutral way but it produces a disparate impact (it's disproportionately adversely affecting black applicants because more black applicants are failing the tests) P is going to fail unless they can show that the DC police meant for this impact (meant to exclude blacks from their police force) But what about Yig Wo? (neutral on face but disproportionate impact, so we infer a discriminatory motive, the san fran ordinance for laundry) In that case, it was OVERWHELMING, but in this case there are some blacks who pass the test Also, in that case it was obvious that the board of advisors were manipulating the application process; in this case, the test is graded the same Also, the police force has been actively trying to recruit blacks Adding all of this together, the court does not think that Ps have met their burden of demonstrating that the impact reflects a discriminatory motive of the police department DC has a legit interest in making their officers able to read and write well This test is used throughout civil service and it's not even DC's test

Terminello v Chicago

Cannot convict because speech "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance" A function of free speech is to invite dispute Calling people scum Category of fighting words is confined It's not enough for people to just be upset by the speech Not allowing for mob veto - even if people get upset and are threatening violence, that is not in itself a justification for suppressing violence FACTS: Father Arthur Terminiello, in an auditorium in Chicago, delivered a vitriolic speech in which he criticized various political and racial groups and viciously condemned the protesting crowd that had gathered outside the auditorium. Policemen assigned to the event were unable to prevent several disturbances by the "angry and turbulent" crowd. The police arrested Terminiello for "breach of the peace." He was then tried and convicted for his central role in inciting a riot. QUESTION: Did the Chicago ordinance violate Terminiello's right of free expression guaranteed by the First Amendment? CONCLUSION: In a 5-to-4 decision, the Court held that the "breach of the peace" ordinance unconstitutionally infringed upon the freedom of speech. Noting that "[t]he vitality of civil and political institutions in our society depends on free discussion," the Court held that speech could be restricted only in the event that it was "likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." Justice Douglas wrote that "a function of free speech under our system is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."

Schenck v. US

D sent out pamphlets to people who had been conscripted, so it would not have been sent unless it was intended to have the effect of encouraging draftees not to join the draft; wanted them to petition and assert that "a conscript is a convict," etc; they quoted famous men; "the character of every act depends upon the circumstances in which it is done," so it's not protected by the first amendment (like it normally would be); are the words used expressed in such circumstances and of such a nature as to present a clear and present danger? Yes, the country is at war; congress has the right to raise army FACTS: During World War I, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous wrong motivated by the capitalist system. The circulars urged "Do not submit to intimidation" but advised only peaceful action such as petitioning to repeal the Conscription Act. 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? CONCLUSION: Holmes, speaking for a unanimous Court, concluded that Schenck is not protected in this situation. The character of every act depends on the circumstances. "The question in every case is 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." During wartime, utterances tolerable in peacetime can be punished.

Brandenburg v Ohio

Established the standard for determining whether a particular speech constitutes incitement The test determined that the government may prohibit speech advocating the use of force or crime if the speech satisfies both elements of the two-part test: The speech is "directed to inciting or producing imminent lawless action," AND The speech is "likely to incite or produce such action." There's no bright line between advocacy and incitement, but there is some indication How detailed/specific are the words that the state wants to characterize as punishable incitement? The likelihood that those particular words that the state claims constituted excitement are to cause immediate harm The clan leader's words were just words without a concrete plan No real likelihood of a threat D invited a reporter to an event where they burned the cross and trash talked Jews and other groups, saying that the country is going to hell D is prosecuted for violating the Ohio Criminal Syndacism Acts (saying that he incited violence) SCOTUS overturns, even though he's preaching hate and it may be seen as inciting violence Does not rise to the level of incitement that the government can punish under the first amendment Can only be punished when it's directed to producing imminent lawless action AND is likely to incite such action FACTS: Brandenburg (defendant) was a leader of the Ku Klux Klan in the State of Ohio (plaintiff). Brandenburg was convicted under the Ohio Criminal Syndicalism Act (OCSA) for "advocating the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," and for "voluntarily assembling with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism." He was arrested after inviting a news reporter to attend a Ku Klux Klan rally. The reporter filmed Brandenburg in Klan regalia, burning a cross and uttering speech that was derogatory to African Americans and Jews. Brandenburg was convicted in Ohio state court, and was fined and sentenced to ten years' imprisonment. He challenged his conviction on the grounds that the OCSA violated his First Amendment right to free speech. ISSUE: Whether an Ohio statute that criminalizes syndicalism violates the First and Fourteenth Amendments. HOLDING AND REASONING: Yes. A state may only forbid speech that advocates violence or the use of force if that speech is directed and likely to incite imminent illegal activity without abridging the freedoms of speech and the press. While the Court upheld a similar criminal syndicalism statute in Whitney v. California, 274 U.S. 357 (1927), that decision was thoroughly discredited by later jurisprudence, including Dennis v. United States, 341 U.S. 494 (1951). These later cases established that the constitutional guarantees of free speech do not permit "a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." In contrast, the mere abstract teaching of a need to resort to force or violence is upheld as protected by the First Amendment because this activity is far different from preparing a group for violent action and encouraging it to commit that action. A statute that does not distinguish between the former and latter types of speech violates the First and Fourteenth Amendments because it is over-inclusive. The OCSA cannot be sustained because it punishes the mere advocacy and teaching of violence for accomplishing a political goal as an abstract concept. Nothing in the law distinguishes mere advocacy from actual incitement of imminent lawless action. As such, the statute is unconstitutional. Brandenburg's conviction is reversed and the prior decision in Whitney is overruled. CONCURRENCE: The "clear and present danger" test has proven problematic in its application. Judges applying the test have gone too far in taking "puny" threats seriously. Further, the Dennis Court distorted the test for political purposes, because Communists were on trial in the midst of the Cold War. States may not regulate beliefs, ideas, or advocacy, but states can regulate overt action. Speech ought to be, for the most part, "immune from prosecution." In this case, prosecution was warranted based on the overt acts that resulted from Brandenburg's actions. CONCURRENCE: The "clear and present danger" test relied on in Dennis should not be applied to First Amendment issues. The fact that the Court cites Dennis, however, does not mean the Court is approving that doctrine. ROL: Under the First and Fourteenth Amendments, a state may only regulate speech that advocates violence if the speech is intended and likely to incite imminent illegal activity.

Mt. Healthy City School District Board of Education v Doyle

Even though a teacher was not rehired because he had engaged in conduct protected by the first amendment, that did not necessarily mean that he was entitled to back pay The board had the burden to show that it would have reached the same decision even in the absence of the protected conduct The case introduced what has since become known as the "Mt. Healthy test" into similar cases that follow the Pickering line in asserting the First Amendment rights of public employees where the employer claims other, unprotected conduct motivated the adverse action, a two-prong process that shifts the burden of proof from plaintiff to defendant in the course of the action. First, the plaintiff must prove that the activity they were allegedly disciplined for was indeed protected speech. The defendant must then show by a preponderance that the adverse action would have occurred if the protected activity had never happened. FACTS: Fred Doyle was a certified teacher and employee of the Mt. Healthy City School District Board of Education from 1966 until 1971. In 1969, he was elected president of the Teachers' Association during a period of tension between the board and the Teacher's Association. Doyle was also involved with a series of incidents beginning in 1970 where he allegedly behaved inappropriately toward students and other staff members; in one incident, Doyle made obscene gestures to two students. Finally, in February 1971, Doyle conveyed the substance of an internal memorandum regarding a proposed staff dress code to a disc jockey at WSAI, a Cincinnati radio station. The disc jockey promptly announced the dress code as a news item. One month later, the superintendent of the school district recommended that the board not renew Doyle's contract, along with the contracts of nine other teachers. The board adopted the superintendent's recommendations. In response to Doyle's request for an explanation, the board stated that Doyle displayed a "lack of tact in handling professional matters," and cited both the call to the disc jockey and the obscene gestures Doyle made toward students. Doyle brought a § 1331 federal question action against the board for reinstatement with damages, claiming that the board's refusal to rehire him violated his rights under the First and Fourteenth Amendments. While the district court found that all of the incidents occurred, it held that Doyle was still entitled to reinstatement with backpay. The court concluded that Doyle's call to the radio station was protected by the First Amendment and that the call played a substantial part in the board's decision not to rehire Doyle, a violation of Doyle's rights under the First and Fourteenth Amendment. The United States Court of Appeals Sixth Circuit affirmed in a short per curiam opinion. QUESTION: 1. Was Mt. Healthy City School District Board protected by the sovereign immunity clause of the Eleventh Amendment? 2. Was Mt. Healthy City School District Board forbidden by the First Amendment from considering Doyle's phone call to a radio station in its decision not to renew Doyle's contract? CONCLUSION: No and no. Writing for a unanimous Court, Justice Rehnquist held that the school district was not entitled to sovereign immunity, which generally extended to the states themselves and to state officials in their official capacities. He reasoned that the board was more akin to a municipal corporation, given its independent power to issue bonds and levy taxes. While acknowledging that Doyle's claims were not defeated by the fact that he lacked tenure and that his call to the station was protected by the First and Fourteenth Amendments, the Court rejected the district court's conclusion that the board's consideration of the call in itself violated Doyle's rights. He questioned the "substantial part" rule used by the district court, expressing concern that it might prevent employers from properly and thoroughly assessing employees' performance when employers are aware of protected conduct. Instead, Justice Rehnquist held that the district court should have also determined whether the board showed by a preponderance of evidence that it would have reached the same decision if it had not considered Doyle's phone call to the radio station. Finally, although the school district argued that it was not a "person" for purposes of a § 1983 claim, Justice Rehnquist declined to answer whether Doyle's § 1331 federal question claim was limited by the terms of § 1983. He noted that Doyle demonstrated a proper federal question and claimed more than $10,000 in damages, given the potential value of his reinstatement.

Carolene Products Footnote

Even though the court had applied minimal scrutiny (rational basis review) for economic legislation in this case, Footnote Four reserved stricter standards of review for other types of cases Legislation aimed at "discrete and insular minorities" without the normal protections of the political process would justify a heightened standard of judicial review This has greatly influenced jurisprudence on the Equal Protection Clause jurisprudence First paragraph - legislation that infringes on values protected in bill of rights (legislation that on its face violates a provision of the constitution; facial challenge) Second paragraph - legislation cannot restrict processes that would ordinarily bring about the repeal bad legislation; legislation that attempts to distort or rig the political process Third paragraph - statutes who are against minorities; legislation that discriminates against minorities, particularly those who lack sufficient numbers or power to seek redress through the political process This higher level of scrutiny is now called strict scrutiny

Virginia State Board of Pharmacy v Virginia Citizens Consumer Council

FACTS: A Virginia State statute prohibited the advertisement of prescription drug prices. The Virginia Citizens Consumer Council, Inc. (VCCC) (plaintiffs) brought suit in federal district court against the Virginia State Board of Pharmacy (VSBP) (defendants) on the grounds that the statute violated the First and Fourteenth Amendments. The district court agreed, and the VSBP appealed to the United States Supreme Court. ISSUE: Whether a Virginia State statute prohibiting the advertisement of prescription drug prices violates the First Amendment. HOLDING AND REASONING: Yes. The VSBP argues that the advertising ban is constitutional because it regulates only commercial speech. This argument is based on the Court's previous decision in Valentine v. Christensen, 316 U.S. 52 (1942), which held that the government could regulate commercial speech. However, Valentine was overruled by Bigelow v. Virginia, 421 U.S. 809 (1975), where the Court rejected the notion that speech is unprotected simply because it is commercial. This reasoning is controlling to the government regulation of the publication of prescription drug prices. Speech clearly does not lose its First Amendment protection simply because money is spent to project it, as in a paid advertisement of some form. Additionally, the fact that the advertiser's interest in projecting the speech is purely economic does not disqualify the speech from First Amendment protection. Consumers have a keen interest in the free-flow of commercial information; often times even more so than in political debates. Society in general also has a strong interest in the free flow of commercial information. Protecting this type of public interest in information is one of the primary purposes of the First Amendment. VSBP argues that Virginia's advertising ban is necessary to maintain professionalism among pharmacists. However, this argument is rejected because of the high professional standards already in place to govern pharmacists by the state's regulatory boards. Additionally, the advertising ban does not directly affect professional standards for pharmacists, as it has no impact on the ability of pharmacists to perform their duties. Thus, there is no reason to hold that the First Amendment does not protect commercial speech of this variety. However, this does not mean that commercial speech can never be regulated in any way. For example, false advertisements and advertisements for illegal commercial activities are not protected. However, because neither of those categories of speech is at issue, the Virginia ban on commercial advertising of prescription drug prices is an unconstitutional infringement on the freedom of speech protected by the First Amendment. The decision of the district court is affirmed. DISSENT: The majority is wrong to elevate the interests involved in the buying and selling of goods to the interests of free marketplace of ideas (interests traditionally protected by the First Amendment). The majority's holding that the First Amendment protects commercial speech allows prescription drugs, liquor, cigarettes, and others to actively promote their product. The majority overrules a legislative determination that such advertising should not be allowed, and the majority's decision runs afoul of the historical view of the First Amendment as "primarily an instrument to enlighten public decision-making in a democracy." The First Amendment was enacted to protect speech relating to public decision-making about political, social, and other public issues, rather than the decision of a particular individual to purchase a particular kind of commercial product. The majority's decision cheapens the protections of the First Amendment, and risks opening the door to the advertisement of products deemed harmful to society. ROL: The First Amendment protects commercial speech relating to the advertisement of prescription drug prices. You cannot cut off advertisement problems by cutting off consumers and leaving them in the dark If you do limit things, then you have to leave open ample alternative channels of communication Example: Saying you can't have for sale signs. Assuming that it is a time, place, and manner restriction (it only restricts this one instance of communication), but the alternate communication is not abundant (they could put an ad in the newspaper or hire a realtor); the court said that the other means are more expensive and less convenient The solution is not to keep the info that homes are for sale from buyers So, the court struck it down

New York City Transit Authority v Beazer

FACTS: NYC Transit had a policy that it would not hire or employ anyone currently participating in one of NYCs methadone maintenance programs (about 40k people were participating). treatments were administered mainly to treat withdrawal symptoms of heroin addicts. P and three other persons brought suit because they weren't allowed a job there, or had been fired. The district court rules in favor of P; the appellate court affirmed. Does the refusal to employ/hire persons participating in a methadone maintenance program amount to unconstitutional discrimination in violating of the Equal Protection Clause. No. P's argument was not that the transit authority should not be permitted to enact a special rule governing the employment of all narcotics users. Rather, P argued that the users of meth should not be included in the general class of 'narcotics users." But the district court noted that substantial differenced exist between those who use meth and those who don't use meth/ Also, lots of people who enrolled in the program will not complete it; so there's a big risk of relapse among these people. It would be impossible for the transit authority to distinguish among meth users and which people are most likely to present continuing drug use risks. There is a legit interest in not employing narcotics users. Given the risk of relapse or lingering effects of people who recently used narcotics, it is reasonable for the transit authority to enact a policy of total exclusion. P says the rule was unconstitutional because it was overbroad and potentially excluded from employment meth users that are not relapses and would likely complete their programs. However, the general rule serves general objectives of safety and efficiency. The rule discriminates against a general class of persons (not a more defined suspect class of persons). Because of all of this, it is not constitutionally significant that the degree of rationality for excluding meth users is not as great as for others. The regulation of employment for an entire class is rationally related to legitimate safety and efficiency interests, and thus the decision of the court of appeals is reversed. Concurrence/Dissent - Powell - they should not be able to discriminate from people who have successfully graduated from the program. the majority didn't talk about this, they only partially decided the issues, so the case should have been remanded. Dissent - White/Brennan - it would have been easy for them to find people who were a year into the program or had successfully completed the program. those people should have been hired. It's hard to do anything more specific than a blanket policy in this case Rational basis scrutiny (look over levels of scrutiny) - this means it's plausible, you wouldn't have to be out of your mind to think this is a good idea - because it's not a suspect class What about the argument that there are other people who pose a risk as well (alcoholics, epileptics) and the city does not categorically exclude them (it considers them on a case by case basis) - meth abuse is more of a prevalent problem for them; it's not as big of a deal for them to deal with the others on a case by case basis This type of lax argument is allowed because of the lax level of scrutiny

PruneYard Shopping Center v Robbins

FACTS: PruneYard (defendant) operates a large, privately owned shopping center. It has a policy prohibiting people from engaging in any "publicly expressive activity" on the premises, including circulating petitions. One day, a group of high school students (students) (plaintiffs) set up a table and distributed pamphlets and asked people to sign a petition concerning a United Nations resolution. They were peaceful and orderly, but a PruneYard security guard asked them to leave on account of the PruneYard policy. The students brought suit seeking to enjoin PruneYard from denying their ability to distribute pamphlets. The California Supreme Court ruled in favor of the students. PruneYard appealed. ISSUE: Is the right to exclude others from property so essential to the economic value of a shopping center's property that a state-authorized limitation of it amounts to a taking? HOLDING AND REASONING: No. A state's enforcement of individuals' freedom of speech on private property open to the public does not amount to a taking of the owner's property. In order to constitute a taking, the owner's right to exclude the individuals must be essential to the economic value of the property. In this case, the exclusion of the students is not essential, and may not even be relevant to the economic value of PruneYard's shopping center. The students were peaceful and orderly and there is no evidence that PruneYard patrons objected to the students' presence or that their presence adversely affected PruneYard's business in any way. In addition, the governmental action of enforcing individuals' freedom of expression is a noteworthy one. Therefore, because the government's enforcement of the students' speech rights is important and because it does not impair the economic value of PruneYard's business, the judgment of the California Supreme Court is affirmed. CONCURRENCE: PruneYard's claim is that common law rights such as trespass may not be altered by the government. Such a claim would impede legislative progress as it would allow no room for improvement in the common law. Thus, the majority was correct in its holding. CONCURRENCE: Although it is true that the government may not force a private individual to provide a platform for a belief he does not hold, there is no way that patrons of PruneYard would impute the views or statements of the students to PruneYard or its owner. ROL: In making a determination on whether a taking has occurred, courts look to the character of the governmental action and the economic impact of the restriction in terms of the investment-backed rate of return of the owner. A taking - an action by the federal government, as a regulatory ruling, that imposes a restriction on the use of private property for which the owner must be compensated Owners of the shopping center cite Wooley v Maynard; the logic is if the Maynards have a right not to display life free or die, then they should have the right not to express a view at all Distinctions between Maynard and Pruneyard - Factual difference between the prevailing nature of a license plate versus the large shopping center with a small table Speakers have a right Business establishment, open to public Unlikely that people will think the booth speaks for the owners No specific state message is dictated The shopping center can place signs distancing themselves from the booth

Gooding v Wilson

FACTS: Wilson (defendant) was convicted in Georgia (plaintiff) on two counts of using "opprobrious words and abusive language" to insult two Georgia police officers during an antiwar demonstration in violation of a Georgia statute. He said "You son of a bitch. I'll choke you to death"; "White son of a bitch, I'll kill you"; and "You son of a bitch if you ever put your hands on me again, I'll cut you all to pieces." Wilson challenged his conviction against Gooding in federal district court. The district court set aside Wilson's conviction on the grounds that the Georgia statute was overly vague, and the court of appeals affirmed. Gooding appealed to the United States Supreme Court. HOLDING AND REAOSNING: The Georgia statute, prohibiting only speech ("opprobrious words and abusive language"), could only be upheld as constitutional if it prohibits words that fall into a narrow category of speech not protected by the First and Fourteenth Amendments. Under Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), states may punish the use of words or language that is blatantly insulting or meant to incite conflict ("fighting words"). However, even in such a limited class, states must still be careful to narrowly draw their statutes so that they do not infringe upon protected speech. Gooding argues that the Georgia statute is narrowly drawn to prohibit "fighting words"—a category of speech previously held as unprotected by the First Amendment in Chaplinsky. However, since Chaplinsky, no state statute that purportedly criminalizes fighting words have been upheld because they have a tendency to be too broad. The Georgia statute, in criminalizing "opprobrious" and "abusive" speech, is over-inclusive because it encompasses more speech than just "fighting words." In fact, the Georgia law has previously been misapplied by Georgia state courts and has criminalized several instances of speech that actually should have been protected by the First Amendment. The Georgia statute is unconstitutional and Wilson's conviction under it is improper. The decision of the court of appeals is affirmed. DISSENT: The majority reaches a bizarre result by invalidating the Georgia statute as void on its face not because of its text, but because of the way the Georgia state courts applied the statute in a few isolated cases, most of which were decided well before the decision in Chaplinsky, and were thereby overruled. The Georgia statute should be upheld as a constitutional prohibition of "fighting words." DISSENT: The speech uttered by Wilson to a Georgia police officer was incredibly offensive and derogatory. It thus seems unconscionable that the majority's holding would prevent him from being prosecuted for this speech. The Supreme Court of Georgia unanimously prosecuted Wilson for his speech, and anyone hearing Wilson's speech and reading the Georgia statute would have expected such a result by the state supreme court. The Georgia statute is clear and narrowly drawn, and should be upheld as a constitutional restriction of "fighting words."

McCleskey v Kemp

Facts: D was a black man and was convicted of armed robbery and murdering a white police officer; the jury recommended that he be sentenced to death for the murder, followed by two life sentences for the armed robbery charges D filed a petition for a writ of habeas corpus in federal district court, alleging that GA's capital sentencing process was administered in a racially discriminatory manner in violating of the 8th and 14th amendments D offered a statistical student that purported to prove a disparity in the imposition of death sentences in GA based on the race of the murder victim and the race of the D (when a white victim and a black D, the D was 22 times more likely to be sentenced to death than if the victim was also black); it also showed that prosecutors were significantly more likely to seek the death penalty for black Ds the district court denied his claim based on the study and the court of appeals affirmed the SCOTUS said that a criminal D alleging an equal protection violation has the burden of proving the existence of purposeful discrimination and that the purposeful discrimination had a discriminatory effect on him the study is too general and does not show something specific to him if the court believed the study, then there would be an equal protection violation every instance in which a black D is sentenced to death for killing a white victim there was no discriminatory purpose from GA because they did not select or reaffirm a particular course of action because of its adverse effects upon blacks dissent - there is overwhelming statistical evidence history shows has racist GA was portions of the GA capital sentencing system have already been invalidated for furthering racial discrimination three times over the past 15 years preventing racial discrimination in the criminal justice system was one of the primary concerns of the drafters of the 14th amendment ROL: A criminal defendant alleging an equal protection violation must prove the existence of a discriminatory purpose and a racially disproportionate and discriminatory effect. FACTS: McCleskey (defendant), an African American man, was convicted of two counts of armed robbery and one count of murdering a Caucasian police officer in Atlanta, Georgia. At trial, the jury recommended that McCleskey be sentenced to death on the murder charge and two consecutive life sentences on the armed robbery charges. The court followed this recommendation and sentenced McCleskey to death. McCleskey filed a petition for a writ of habeas corpus in federal district court, alleging that Georgia's capital sentencing process was administered in a racially discriminatory manner in violation of the Eighth and Fourteenth Amendments to the United States Constitution. To support his claim, McCleskey offered a statistical study that purported to prove a disparity in the imposition of death sentences in Georgia based on the race of the murder victim and the race of the defendant. For example, the study concluded that in instances where a Caucasian victim was killed by an African American defendant, the defendant was twenty-two times more likely to be sentenced to death than if the victim was also African American. The study also suggested that prosecutors were significantly more likely to seek the death penalty for African American defendants than for Caucasian defendants. The district court denied McCleskey's claim based on the study, and the court of appeals affirmed. The United States Supreme Court granted certiorari. ISSUE: Does statistical data that suggests racial motivations enter into capital sentencing determinations constitute an equal protection violation if a jury convicts the defendant? HOLDING AND REASONING: No. A criminal defendant alleging an equal protection violation has the burden of proving the existence of purposeful discrimination and that the purposeful discrimination had a discriminatory effect on him. McCleskey must prove that the decision makers in his case acted with a discriminatory purpose. McCleskey offers no evidence to prove this claim, relying entirely on the study results. If the study findings are accepted as evidence, then an equal protection violation would occur in every instance in which an African American defendant is sentenced to death for murdering a Caucasian victim. McCleskey argues that the study proves that the State of Georgia, as a whole, acted with a discriminatory purpose in adopting the capital punishment statute and allowing it to remain in force despite its allegedly discriminatory application. A discriminatory purpose implies that the decision maker selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group. McCleskey offers no evidence that the Georgia state legislature enacted the death penalty statute because of an anticipated racially discriminatory effect. The decision of the court of appeals is affirmed. DISSENT: The majority simply cannot ignore the overwhelming statistical significance of the death penalty study, which confirms that race plays a major role in determining whether a defendant will be sentenced to death. History confirms that Georgia practices a race-conscious criminal justice system dating back to the Civil War era. Portions of the Georgia capital sentencing system already have been invalidated for furthering racial discrimination three times over the past fifteen years. DISSENT: The majority upholds discriminatory practices pervasive in the Georgia criminal justice system as a whole. Fourteenth Amendment protections against racial discrimination are particularly important for criminal defendants in the courtroom because they are necessary to maintain the appearance of justice and the integrity of the judicial process. Preventing racial discrimination in the criminal justice process was one of the primary concerns of the drafters when enacting the Fourteenth Amendment, as the consequences of allowing racial bias to influence criminal sentencing decisions is particularly harmful.

Hurley v Irish-American Gay, Lesbian and Bisexual Group of Boston

GLIB wants to march in a St Patrick's day parade and say that they're proud of being Irish They want to march under their own banner Veteran's counsel (Hurley) says sorry nope we don't really have the same message, so you cannot join us and march with us LIB has no first amendment right to insert itself in a private entity's parade But because Massachusetts has chosen to confer on groups like GLIB the right to participate in parades Legislation says in circumstances like this, a group like the veteran's counsel cannot discriminate on the basis of sexual orientation So, the first amendment rights are not being asserted by GLIB, but rather by the veteran's counsel The court says yes, they do have a constitutional right to keep GLIB (specifically, GLIB's banner) out of the parade Says that there is a conflict/contradiction between the two group's messages GLIB: "It's great to be Irish." Veterans counsel: "It's better to be Irish and heterosexual." use of the state's power, however, violates the fundamental rule under the First Amendment that a speaker has the autonomy to choose the content of his or her own message. An important manifestation of the principle of free speech is that one who chooses to speak may also decide what not to say. Goes against Pruneyard State cannot compel private entities to include views in their ranks Unlike the veteran's council, Pruneyard was in the business of making money Veteran's council is more of an expressive association (an association that was formed for the purpose of exercising first amendment rights) It's much more feasible for a shopping center like Pruneyard to issue a disclaimer than it is for the people who run the parade ROL: A state may not require a private group of citizens to include in a parade a group whose message the organizers do not wish to promote. FACTS: The mayor of South Boston granted authority to organize and conduct an annual parade to the South Boston Allied War Veterans Council (Council), an unincorporated association of individuals. In 1992, the Irish-American Gay Lesbian & Bisexual Group of Boston (GLIB) (plaintiff) applied for and was denied an opportunity to march in the parade by the South Boston Allied War Veterans Council. It received a state court order overturning this decision, however, and marched in the parade without incident. In 1993, after GLIB was again refused an opportunity to march by the Council, the organization and its members filed suit in state court against John Hurley, the Council, and the city of Boston (defendants). GLIB alleged violations of a Massachusetts law prohibiting discrimination against sexual orientation in places of public accommodation. The trial court ordered the Council to include GLIB in the parade, and the Supreme Judicial Court of Massachusetts affirmed. The United States Supreme Court granted certiorari. ISSUE: Whether Massachusetts may require a private group of citizens who organize a parade to include among the marchers a group whose message the organizers do not wish to promote. HOLDING AND REASONING: No. The purpose of a parade is for the marchers to make some sort of collective statement, both to each other and to bystanders. Parades are thus a form of expression, and the inherent expressiveness of marching to make a point implicates cases involving protest marches. The Council permitted many groups expressing many different viewpoints to march in its parade. However, the mere fact that a private speaker combines many voices does not cause it to forfeit constitutional protections. Thus, the Council's selection of marchers in the parade constitutes an expressive statement. The dispute between the parties centers on the ability of homosexuals to march as members of GLIB as its own parade unit, under the organization's own expressive banner. Since every participating unit affects the message conveyed by the private organizers of the parade, the state court's application of the Massachusetts public accommodations law in this context essentially requires the Council to alter the expressive content of their parade. This use of the state's power, however, violates the fundamental rule under the First Amendment that a speaker has the autonomy to choose the content of his or her own message. An important manifestation of the principle of free speech is that one who chooses to speak may also decide what not to say. The Council's choice should be protected under the First Amendment. The decision of the state courts is reversed.

FCC v Pacifica Foundation

ISSUE: Can the Federal Communications Commission regulate a radio broadcast that is indecent but not obscene? FACTS: 12-minute monologue called "filthy words recorded before a live audience in a Cali theatre; he repeated 7 obscene words; later, a radio station played it at 2 in the afternoon and someone wrote a letter complaining to the commission because their son had been in the car with him and had heard it Radio station was like it's fine we advised listeners that it had "sensitive language that might be offensive to some" And radio station said he wasn't actually being obscene, but pointing out how silly our attitudes towards obscenities are No other complaints Commission said basically that the complaint would be "associated with the station's license file" and characterized the language as "patently offensive" though not necessary obscene and said that it should be regulated by principles analogous to those found in the law of nuisance Law generally speaks to channeling behavior more than actually prohibiting it Definition of indecent language - exposure of children to language that describes, in terms patently offensive as measured by contemporary standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience Court said language was indecent and prohibited by 18 USC 1464 (prohibiting the broadcasting of "obscene, indecent or profane language") Appellate court reversed USCOTUS reverses appellate and thus sustains the commission's action The issue is whether the words dealing with sex and excretion can be regulated because of content Government must be neutral So just because speech is offensive, doesn't mean we can censor it (Roth) If the speaker's opinion gives offense, there's even more of a reason to protect it But this isn't offensive because if political content or the fact that it satirized attitudes towards curse words, this is offensive because obscenities have no social value (Chaplinksy) The court is like this may be protected in another situation, but that doesn't mean it is protected in this situation One occasion's lyric is another's vulgarity (Cohen) Commission does not object to the monologue's point of view; commission objects to the way in which it is expressed If he had said it without obscenity or w/e Warning is not enough, because audience isn't always actively listening to the radio (turning off the radio when he hears indecent language is like saying the remedy for assault is running away after the first blow) Broadcast is accessible to children who cannot read Permeates more because you're tuning in and out of stuff, so you're more likely to stumble across profanity (you may not hear the warning before the profanity) (this goes against Cohen, where they held that criminal sanctions could not be imposed on Cohen for his political statement in a public place, rejecting the argument that his speech would offend unwilling viewers, partly because no unwilling viewers objected; in this case, there was a complaint and there was no criminal prosecution) Outside the home, the court may rule in favor of the speaker; but inside the home, with the right to privacy, there's more of a tendency to weigh for the listener Nuisance is a right thing in a wrong place (Sutherland about nuisance) This may be the right thing But 2pm was the wrong place Powell and Blackmun concurring Focuses on how it should have been not at 2pm, that commission wanted to "channel" the speech into other hours You cannot really separate children and adult's access to broadcast media (like you can for other medias) Broadcasting comes directly into the home, and people could have gone elsewhere to get this monologue But he doesn't think that the court should be saying what is or isn't "valuable" speech Brennan and Marshall dissenting When you turn on the radio, you give up your privacy interests in your home You cannot say you're protecting children but only keep them from ideas or images that officials think are unsuitable for them (this is going to reduce all public discourse to be suitable for children) The consumers can choose the communications worthy of their attention from a marketplace unsullied by the censor's hand Message cannot be divorced from words (Cohen) It's not obscene, so it's not indecent, so the commission lacked statutory authority to ban the radio monologue

Church of Lukmi Babalu Aye v City of Hialeah

Invalidated a city's ban on "ritual slaughter" as applied to animal sacrifices conducted by the church as part of its practice of the Santeria religion The court found that the background of the ban, and it's specific language and exemptions, demonstrated that "suppression of the central elements of the Santeria worship service was the object of the ordinances" The ordinances did not satisfy the "religious scrutiny" required of regulations that are not neutral or of general application because they were "not drawn in narrow terms to accomplish" the objectives of protecting animals from inhumane slaughter or avoiding unhealthy methods of disposing animal carcasses When a law discriminates against religion as such, it will automatically fail strict scrutiny because by definition it is not precisely tailored to a compelling governmental interest ROL: Under the First Amendment Free Exercise Clause, a state may not constitutionally prohibit the ritualistic slaughter of animals for religious purposes. FACTS: The Church of the Lukumi Babalu Aye, Inc. (Lukumi) (plaintiff) practiced the Afro-Cuban religion of Santeria. Santeria requires ritualistic animal sacrifice, and in most ceremonies, the sacrificed animals are eventually eaten. When the Lukumi announced it was establishing a church in the City of Hialeah, Florida (defendant), the city adopted several ordinances that prohibited ritualistic animal sacrifices. Lukumi challenged the ordinances in federal district court on the ground that they violated the First Amendment's protection of the free exercise of religion. The district court upheld the ordinances as constitutional, however, and the court of appeals affirmed. The United States Supreme Court granted certiorari. ISSUE: Whether a city ordinance prohibiting ritualistic animal sacrifices violates the First Amendment's protection of the free exercise of religion. HOLDING AND REASONING: Yes. Typically, a neutral and generally applicable law does not need to be justified by a compelling governmental interest even if it has the incidental effect of burdening a particular religious practice. However, the City ordinances in question fail to satisfy both of these requirements. Here, the ordinances are not neutral and are facially invalid because they specifically use the words sacrifice and ritual in describing prohibited conduct, i.e. words that clearly have strong religious connotations. However, even if a secular meaning is given to these terms, the ordinances are still invalid because they seek to suppress a central element of the Santeria worship services. The City states that the purpose of the ordinances is to prevent cruelty to animals. However, when taken together, the ordinances have an objective, completely separate from this legitimate concern, of completely suppressing a central religious tenant of Santeria. There is no overriding compelling interest asserted by the state, and thus the ordinances are not neutral. However, it is also necessary to determine whether the ordinances have general applicability. Laws burdening religious conduct may still be constitutional if they do not unfairly single out religious conduct in their efforts to achieve a general public purpose. Here, the asserted public purposes are the protection of the public health and the prevention of cruelty to animals. However, the ordinances are under-inclusive to achieve those ends. The ordinances only prohibit the slaughtering of animals for ritualistic or sacrificial purposes. Most types of secular animal slaughtering are still permitted. Thus, the ordinances cannot be said to have general applicability. The ordinances are thus subject to strict scrutiny and ultimately fail. The decision of the court of appeals is reversed.

Chaplinksy v New Hampshire

ROL: "Fighting words" that incite others to violence are not protected by the First Amendment from governmental regulation. FACTS: Chaplinsky (defendant) was a member of the Jehovah's Witnesses. Chaplinsky was distributing religious literature on a street corner. Several citizens complained to the City Marshal, Bowering, that Chaplinsky was denouncing all religions. Bowering responded that Chaplinsky was lawfully permitted to voice his opinion, but nevertheless warned Chaplinsky that the crowd was getting restless. After a disturbance occurred later, Chaplinsky was escorted by a police officer to the police station. On the way, Chaplinsky passed Bowering and called him a "racketeer" and a "fascist." Chaplinsky admitted to uttering the offensive language in question. Chaplinsky was convicted by the State of New Hampshire (plaintiff) for violating a New Hampshire law prohibiting speech directed at a person on public streets that derides, offends or annoys others. Chaplinsky's conviction was affirmed by the state supreme court, and he appealed to the United States Supreme Court on the grounds that the New Hampshire law violated the First Amendment. ISSUE: Whether a New Hampshire law prohibiting offensive, derisive, or annoying speech on public streets violates the First Amendment. HOLDING AND REASONING: No. Even under the broadest reading of the First Amendment, the freedom of speech cannot be said to be absolute. Punishment of certain narrow categories of speech has never been questioned under the Constitution. These categories included lewd and obscene, profane, and libelous speech, as well as insulting speech or "fighting words"—those that, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. This type of speech has very little social value, and thus makes no contribution to the marketplace of ideas protected by the First Amendment. Chaplinsky's words directed to Bowering fell into this category of speech. Thus, the New Hampshire statute prohibiting them does not violate the First Amendment. Chaplinsky's conviction by the lower courts is affirmed. Argument that Chap's words should be protected under the first amendment? The idea of speech is not what is banned (it's the manner of how he said it) If he had said the same thing politely, it would have been fine Whitney case - we don't suppress bad speech, we counter it with good speech Rationale for not protecting fighting words? They're non-speech, so they're more conduct There are some words that are so provocative and inflammatory that they trigger violence Unlike the Whitney take, there isn't an opportunity to intervene and counter fighting words because they trigger an immediate, physical retaliation Relates defamation (once something false has harmed your reputation, the truth may never be able to catch up to the lies); obscenity will debase a neighborhood and no amount of benign speech will fully redress the negative effects of the obscene speech Neutral laws (if someone calls you a communist or a fascist, it doesn't matter, it's still defamation)

Young v American Mini-Theatres

ROL: A city ordinance may constitutionally require the geographic disbursement of adult movie theaters if doing so furthers a legitimate governmental purpose. FACTS: In 1972, the City of Detroit adopted two zoning ordinances that required adult movie theaters to be sufficiently dispersed throughout the city. Specifically, an adult theater could not be located within one thousand feet of any two other "regulated uses" or within five hundred feet of a residential area. The term "regulated uses" included ten different kinds of establishments in addition to adult theaters. American Mini Theatres, Inc. (plaintiff) brought suit in federal district court against Young, a zoning board official, and the City of Detroit (defendants) on the grounds that the ordinances were an unconstitutional violation of the First and Fourteenth Amendments. The district court ruled in favor of the city, but the court of appeals reversed. The United States Supreme Court granted certiorari. ISSUE: Whether zoning ordinances that differentiate between movie theaters showing pornographic movies and theaters that do not violates the First Amendment. HOLDING AND REASONING: No. The classification of a movie theater as "adult" expressly turns on whether its movies contain sexually explicit content. However, despite this content-based regulation, it is unlikely that the Detroit ordinance would have a significant deterrent effect on the exhibition of films protected by the First Amendment. Even if doubt exists over the type of sexual activity prohibited by the ordinances, any ambiguity can be successfully resolved by a limiting instruction from the trial court. Additionally, the Detroit ordinance does not prohibit adult films, but merely requires movie theaters showing these films to be dispersed evenly throughout the city. This does not amount to an unconstitutional restriction on expression. The zoning ordinances were passed as part of a city-wide commercial planning effort, and were thus enacted for a legitimate purpose. The ordinances also serve the legitimate purpose of preserving the character of Detroit neighborhoods and the quality of urban life. Finally, the Court's First Amendment jurisprudence establishes that states may sometimes legitimately discriminate on the basis of content without running afoul of the First Amendment. The Detroit zoning ordinances are examples of this type of permissible content-based discrimination. Thus, the Detroit ordinances are upheld as constitutional. The decision of the court of appeals is reversed. DISSENT-STEVENS: The majority's opinion vastly departs from the Court's prior First Amendment jurisprudence. The fact that the type of movies shown by the theaters in question might be objectionable to some people is not sufficient to find it unprotected by the First Amendment. The majority's decision violates the purpose of the First Amendment by permitting selective interference with protected speech believed to produce distasteful effects. This is completely in opposition to the First Amendment's requirement that time, place, and manner restrictions on speech be content-neutral. The majority's decision is thus best viewed as an aberration, since it departs from established First Amendment jurisprudence to address the unique facts of a particular case.

Dun & Bradstreet v Greenmoss Builders

ROL: A court may permit recovery of presumed and punitive damages in a defamation case absent a showing of actual malice when the defamatory statements do not involve matters of public concern. FACTS: Dun & Bradstreet (defendant) sent a credit report to five subscribers indicating that Greenmoss Builders, Inc. (Greenmoss) (plaintiff) had filed for bankruptcy. The report was false, but it was sent due to the good faith mistake of a Dun & Bradstreet fact checker. Greenmoss sued Dun & Bradstreet for libel and obtained a verdict for presumed and punitive damages. The trial court granted Dun & Bradstreet's motion for new trial, but the Vermont Supreme Court reversed and reinstated the verdict in favor of Greenmoss. The United States Supreme Court granted certiorari. ISSUE: When defamatory statements do not involve matters of public concern, may a court permit recovery of presumed and punitive damages absent a showing of actual malice? HOLDING AND REASONING: Yes. When defamatory statements do not involve matters of public concern, a court may permit recovery of presumed and punitive damages absent a showing of actual malice. In order to make such a determination, the Court engages in the balancing test outlined in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), weighing the state's interest in compensating individuals for harmed reputation against the First Amendment purpose of protecting free expression. The Court finds, as it did in Gertz, that the state has a "strong and legitimate" interest in compensating libeled individuals. On the other hand, the Court finds that the First Amendment interest is not as significant in this case as it was in Gertz. Whereas in Gertz, the speech in question was a matter of public concern, in this case, Dun & Bradstreet's publication is a wholly private matter. The protection of such private speech is not as imperative as protection of speech regarding matters of public concern. Accordingly, in contrast to Gertz and New York Times v. Sullivan, 376 U.S. 254 (1964), the Court determines that a showing of actual malice is not required in defamation cases involving private speech. Therefore, Greenmoss need not prove actual malice and is entitled to damages. The judgment of the Vermont Supreme is affirmed. CONCURRENCE: In addition to not applying an actual malice requirement to private speech, the Court should go further and overrule Gertz by not requiring actual malice in speech concerning matters of public concern. In addition, the scope of Sullivan should be limited. DISSENT: Properly following Gertz, the Court should hold that the First Amendment requires limitations on the amount of presumed and punitive damages awardable even if the publication involves a merely private matter. Alternatively, even if Gertz is read to be limited to matters of public concern, the false credit reports in this case surely qualify as a matter of public concern. Under either reading of Gertz, Greenmoss should be required to show actual malice to obtain presumed or punitive damages.

Craig v Boren

ROL: A governmental regulation involving gender discrimination is constitutional if it is substantially related to the achievement of an important government purpose. FACTS: An Oklahoma statute prohibited the sale of "non-intoxicating" 3.2 percent alcoholic beer to males under the age of twenty-one, but permitted the sale of such beer to females over the age of eighteen. Craig (plaintiff), a liquor vendor in Oklahoma, brought suit against Boren (defendant), an Oklahoma state official, in federal district court on the grounds that the law violated the Equal Protection Clause of the Fourteenth Amendment. The district court upheld the statute, holding that statistical evidence regarding young men's drunk-driving arrests and traffic injuries demonstrated that the gender-based discrimination was substantially related to the achievement of traffic safety on Oklahoma roads. Craig appealed to the United States Supreme Court. ISSUE: Whether a statute that denies the sale of alcohol to individuals of the same age based solely on gender violates the Equal Protection Clause of the Fourteenth Amendment. HOLDING AND REASONING: Yes. The appropriate standard of review for governmental gender-based classifications is intermediate scrutiny. The classification must be substantially related to the achievement of an important government purpose. Applying this standard, Boren offers statistical evidence to show that the state regulations were related to traffic safety. Even if the statistics are taken as accurate in showing the propensity of both sexes to drive under the influence of alcohol, the statistics show that 0.18 percent of females between ages eighteen and twenty were arrested for that offense, while 2 percent of males in that age group were arrested for the same offense. While the difference is statistically significant, it is not enough to justify a broad categorical rule prohibiting the sale of alcohol to males, and not females, in this age group. Additionally, no statistics are offered regarding the use and relative dangerousness of 3.2 percent alcoholic beer as compared to alcohol in general. No justification exists for enacting a gender-based law governing the sale of this particular beer and not alcohol in general to males and females between ages eighteen and twenty. The gender-based discrimination contained in Oklahoma's law constitutes a denial of equal protection of the laws to males between eighteen and twenty. The judgment of the district court is reversed. CONCURRENCE: Gender-based classifications are subject to strict, not intermediate scrutiny, as outlined in Reed v. Reed, 404 U.S. 71 (1971). Oklahoma did not meet its burden of proof to withstand strict scrutiny. CONCURRENCE: There is a need for a third standard of review beyond strict scrutiny and rational basis review. On the merits, the statistics presented do not automatically point to the conclusion that males are more likely to drive under the influence of alcohol than females. DISSENT: Gender classifications should be analyzed under rational basis review. Even though the majority does not agree with the means used by the Oklahoma legislature in passing its statute (i.e. relying on statistical evidence), the majority cannot say that the legislature acted irrationally in reaching its conclusion. DISSENT: The majority is wrong to apply any more stringent scrutiny than rational basis for gender classifications. The language of requiring sex-discriminating regulations to be "substantially related to an important government purpose" is not supported by the Equal Protection Clause, case precedent, or any other constitutional provision. Any form of strict scrutiny itself is not appropriate as state legislatures are entitled to great deference in their judgments. The statute should be upheld and the judgment of the district court affirmed. Outlawed purchase of light beer by men under 21 but women over 18 could purchase Was it rational? Common sense and data show that men, much more than women in this age group, tend to abuse alcohol Yeah, it's rationale (the OK wasn't out of its mind making this statue) but it needs to be more strictly tailored to meet that aim The court says that gender based classification has to be substantially related to an important governmental interest You have to show that the reliance on gender is substantially related to an important governmental interest The court is not suggesting that OK lacks an interest The wholesale distinction between men and women isn't substantially related

Lynch v Donnelly

ROL: A public display erected in conjunction with a religious holiday does not violate the First Amendment Establishment Clause if it only indirectly or incidentally advances religion. FACTS: Every year during the Christmas holiday season, the City of Pawtucket, Rhode Island (City) builds a large, public Christmas display. The display includes traditional "secular" Christmas images such as Santa Claus and reindeer figures, as well as a religious crèche. The City originally spent public funds to acquire the display, but currently spends nominal costs erecting and maintaining it each year. Donnelly (plaintiff) brought suit against Lynch (defendant), the mayor and the City in federal district court on the ground that the display violated the Establishment Clause of the First Amendment. The district court agreed and held the display unconstitutional, and the court of appeals affirmed. The United States Supreme Court granted certiorari. ISSUE: Whether a public display erected in conjunction with a religious holiday violates the First Amendment Establishment Clause. HOLDING AND REASONING: No. The City's Christmas display does not violate the First Amendment Establishment Clause simply because it is erected in conjunction with a religious holiday. A public display erected in conjunction with a religious holiday does not violate the First Amendment Establishment Clause if it only indirectly or incidentally advances religion. Whether a public display impermissibly advances religion depends on a case-by-case analysis of the government action involved, rather that application of a strict test or criterion by the courts. The United States has a long and unbroken history of official acknowledgement by all three branches of government of the role of religion in American life. Additionally, the Supreme Court has not rigidly interpreted the First Amendment Establishment Clause as a prohibition on all government advancement of religion or religious holidays. The Court has always analyzed each instance of government action associated with religion on a case-by-case basis. Although it is helpful to consider factors such as whether the government action is motivated by a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with religion, there is no firm criteria used by the Court to evaluate the constitutionality of government action when connected to religious holidays. The City's religious display both celebrates Christmas and acknowledges the origins of the holiday. Both of these are valid secular purposes for the display. To completely forbid the display because it is associated with a religious holiday would be an overreaction, as government action that either indirectly or incidentally advances religion has historically been permitted. The advancement of religion by the City is indirect and incidental and best, and thus the display does not violate the Establishment Clause. The decision of the lower courts is reversed. CONCURRENCE: Establishment Clause jurisprudence should be clarified. The current treatment of the Establishment Clause completely ignores the fact that political parties and factions are often defined along religious lines. Additionally, difficulties arise when the government both endorses and disapproves of a particular religion. To examine whether the City of Pawtucket impermissibly endorsed religion by its display of the crèche, it is most useful to determine the message the City hoped to communicate, and the actual message that was communicated. It is unlikely that the City intended to communicate a message of endorsing Christianity by placing a crèche in a display with other Christmas imagery. Additionally, it is unlikely that the endorsement of Christianity was actually conveyed because the crèche was placed near other secular images associated with Christmas. Thus, the "purpose" and "effect" of the display do not constitute an endorsement of religion by the City. Future Establishment Clause cases should be analyzed with this same "purpose" and "effect" inquiry. DISSENT: The City's use of public money to maintain and display the religious crèche cannot be interpreted as based on a "clearly secular purpose." The primary effect of the crèche is to endorse one particular religion, Christianity. It does not matter that the crèche was displayed in the overall "context" of the Christmas holiday, as there is no secular way to view a crèche. It does not matter that the government has previously recognized Christmas as a public holiday containing secular elements. The recognition of Christmas as a "public holiday" does give the City a free pass to include religious imagery in its holiday celebration. Based on Establishment Clause jurisprudence, the government may take reasonable steps to accommodate the ability of individuals to practice religion. It has already done this by designating Christmas as a public holiday. The government may continue celebrating the religious holiday, but must focus on the sectarian basis for the holiday. The government successfully accomplishes this in its recognition and celebration of Thanksgiving; a holiday that began as a religious celebration but is now celebrated for purely secular reasons. In the same way, if the government is to successfully continue the public recognition of Christmas, it must remove the religious element from public celebrations of the holiday or risk violating the Establishment Clause. The crèche is a purely religious symbol, and cannot constitutionally be included in any public celebration of Christmas. DISSENT: The majority's opinion that the crèche is not "religious" enough to preclude its use in secular Christmas displays reduces the Christian significance of the symbol. This is offensive to non-Christians because it permits the continued use of a religious symbol in public displays. However, it also offends Christians by devaluing one of their most sacred religious symbols. This has an accommodationist tone Look, there's a Lemon test, but we shouldn't get carried away It's quite clear that every intermingling of government and religion isn't going to rise to the level of an establishment clause violation We traditionally have some interaction between the government and religion Makes it an issue of line drawing (when exactly has the government gone too far in its involvement/support of religion?)

Dandridge v Williams

ROL: A state law that imposes classifications subject to differential treatment under welfare programs does not violate the Equal Protection Clause when the classification can be justified by any conceivable rational basis. FACTS: Williams (plaintiff) was one of a class of plaintiffs who filed suit in federal court to challenge the validity of a rule imposed by the state of Maryland (defendant) upon distribution of funds to needy families through the Aid to Families with Dependent Children program. The state placed a maximum limit of $250 on the amount of aid any family could receive. Williams alleged that the cap unfairly discriminated against larger families because they received less assistance per child. The district court invalidated the state rule and the state petitioned the United States Supreme Court for review. ISSUE: Does a state law that imposes classifications subject to differential treatment under welfare programs violate the Equal Protection Clause when the classification can be justified by any conceivable rational basis? HOLDING AND REASONING: No. A state law that imposes classifications subject to differential treatment under welfare programs does not violate the Equal Protection Clause when the classification may be justified by any conceivable rational basis. The state of Maryland asserts that its maximum grant cap is justified by the legitimate state interests of encouraging employment, balancing the economic status of welfare families and low-income earning families, incentivizing family planning, and assuring funding to assist the maximum number of families. The district court concluded that the state's classification was impermissibly overreaching and violated the Equal Protection Clause because it too broadly discriminated against a particular class of eligible aid recipients. The consideration of overreaching only applies to the analysis of state laws that apply so broadly as to threaten a fundamental constitutional right. A law that imposed invidious discrimination would be subject to stringent review. When the only constitutional implication of a state law is an alleged denial of equal protection, discriminatory classifications will be upheld if they can be supported by any conceivable rational basis. Our cases establishing the rational basis standard have dealt primarily with economic and social regulation, but there is no reason why the same standard should not apply to a state's decisions about how to administer its welfare programs. The Fourteenth Amendment does not authorize the courts to invalidate a statute perceived to be unwise or out of accord with a particular social or economic philosophy. Maryland's rule does not reduce the grant award to families with consistent income. The state's allocation system relates the grant of aid to the minimum wage received by a bread-winning family and thereby achieves some measure of balance between the economic status of bread-winning families and welfare families. Maryland's system does not address every disparity that may arise in the administration of welfare programs, but equal protection does not demand a complete solution. As long as the regulation is free of invidious discrimination and founded on some rational basis, it will not be disturbed by the Court. The district court judgment is reversed. DISSENT: A state may not afford differential treatment unless there is some relevant distinction between classifications and the classifications are reasonably related to the purposes of the regulation. In this case, children of needy families receive variable amounts of assistance based solely on the size of their families. The purpose of the AFDC program is to provide financial assistance to all needy children. Maryland's system for allocating benefits is underinclusive because it exempts some children from benefits altogether. As such, the state must demonstrate a compelling justification for its differential treatment. The traditional test of equal protection when legislation implicates no fundamental right would uphold legislation unless it cannot be justified by any rational basis. When legislation implicates a fundamental right, the state must demonstrate that classifications promote a compelling governmental interest. The Court equates regulation affecting the substantial interests of poor families with economic regulation while offering no explanation for its characterization. Rather than attempt to identify some particular right affected by Maryland's classification, we should assess its equal protection implications by considering the nature of the classification, the importance of the benefits to which a particular class will be denied access, and the state interests purportedly served by the classification. The interests at stake here are those necessary to sustain life, which the Court has repeatedly recognized should be subjected to stringent constitutional analysis. I would affirm the district court judgment. Courts reluctance to interfere w the state's allocation of resources Dealing with a group of people coming into court claiming that they received an unequal amount of a right And that the right is a fundamental right This law isn't the most equitable/humane approach, but as far as the court is concerned because the court - when assessing the constitutionality - is only concerned with the issue of a rational basis on which the legislature could have adopted this formula And if it is rational, we will defer to the legislatures idea Doesn't mean that they endorse the law, though

Romer v Evans

ROL: A state law that neither burdens a fundamental right nor targets a suspect class of persons will be upheld under the Equal Protection Clause of the Fourteenth Amendment if it bears a rational relation to a legitimate state purpose. FACTS: Several Colorado municipalities passed ordinances banning discrimination based on sexual orientation in housing, employment, education, public accommodations, health and welfare services, and other transactions and activities. In response to these ordinances, Colorado voters passed Amendment 2 which prohibited all governmental intervention designed to protect the status of persons based on their sexual orientation, conduct, practices, or relationships. Evans (plaintiff) represented a class of aggrieved homosexual persons and municipalities in Colorado and brought suit in Colorado state court against Romer (defendant), the Governor of Colorado, on the grounds that Amendment 2 was unconstitutional. The trial court enjoined enforcement of Amendment 2. The Colorado Supreme Court affirmed on the grounds that Amendment 2 was subject to strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because it interfered with the fundamental right of gays and lesbians to participate in the political process. The United States Supreme Court granted certiorari. ISSUE: May a state enact a law that prohibits state and local governments from enacting anti-discriminatory legislation to protect homosexual persons without violating the Equal Protection Clause of the Fourteenth Amendment? HOLDING AND REASONING: No. The State of Colorado argued that Amendment 2 is not unconstitutional because it put gays and lesbians in the same position as all other persons. The Colorado Supreme Court found that the effect of Amendment 2 repeals existing statutes, regulations, and policies that bar discrimination based on sexual orientation. Additionally, Amendment 2 functions to ensure that no similar laws protecting gays and lesbians are ever enacted. Thus, the Amendment does treat homosexual persons differently from the population as a whole because it withdraws from them, but no other persons, specific legal protection from discrimination, and forbids the reinstatement of laws and policies which would protect their interests. The effects of the Amendment are far-reaching and prevent the enactment of policies in both the public and private sectors that would protect gays and lesbians from discriminatory treatment in accessing basic services, which is a basic freedom taken for granted by most other persons. For a law to pass constitutional muster under the Fourteenth Amendment it must not burden a fundamental right or target a suspect class, and it must bear a rational relation to a legitimate state purpose. Given the understanding of the true effect of Amendment 2, this law fails constitutional scrutiny under the Fourteenth Amendment. Amendment 2 targets the suspect class of homosexual persons and is based on animosity towards this group such that the law bears no rational relation to any legitimate state purpose. Amendment 2 is both too narrow and too broad to be constitutional. This is because the law defines an entire group of people based on a single trait (sexual orientation) and discriminates against them across the board on all aspects of their rights. Amendment 2 is invalidated as a violation of the Equal Protection Clause because such a targeted and injurious denial of basic rights can bear no rational relation to a legitimate state interest even under a very deferential standard of judicial review. The decision of the Colorado Supreme Court is affirmed. DISSENT: The majority mischaracterizes Amendment 2 as showing much more animosity towards gays and lesbians than it actually does. The Amendment is not a targeted attack on the rights of homosexuals, but rather an attempt by voters to preserve traditional and long-held sexual mores. The majority attempts to overturn its prior decision in Bowers v. Hardwick, 478 U.S. 186 (1986), and should not have placed the prestige of its institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. The Equal Protection Clause, which has previously been used to uphold the civil rights of racial and religious groups, should not be used in the present case to uphold the rights of homosexuals as a class. The majority actually declines to consider the issue of whether Amendment 2 actually bears a rational relation to a legitimate state purpose, because the majority is focused on asserting its view that discrimination against homosexuals is evil. This holding is unsupported by precedent and misguided in its conclusions. Court is applying heightened standard of review under the rubric of rational relationship Colorado's amendment 2 prohibited legislation that would stop discrimination based on sexual orientation Legislation - broadly (ordinances, laws, etc) Wipes out all the legislation on the books If you were someone who wanted to see a revival of that types of legislation, you would have to amend the constitution Scalia - this is a permissible interest All Colorado wants to do is refrain from giving special treatment/rights to members of the LGBTQ community (though he would say LGBTQ individuals) But the majority sees amendment 2 as affirmatively putting gays at a disadvantage (and thus being discriminatory) Singled out gays for "disfavored legal status" Specifically, the amendment has denied gays equal access to the political system because Colorado has placed before gays a political roadblock that other groups do not have to surmount if they want to enact a law banning discrimination against members of their group 678 pg a law that makes it harder for one group to seek equal protection is itself an denial of equal protection (relates to Carolene products) Rationale relationship/basis standard because gays are not a suspect group Colorado says that they want to protect those who have moral objections to homosexuality to makes sure that they do not have unwanted association foisted on them The court says that amendment 2 goes way far beyond that The breadth of the amendment does not match Colorado's purported purpose (it's like saying we have a problem with drunk driving, so we're going to ban driving) The court basically doesn't believe Colorado, because the purpose cannot match the actual measure If Colorado's reasons for enacting amendment 2 are not credible, what does the court think are the actual reasons? Prejudice/discrimination Homophobia Like the cleaver - permit for the mentally retarded Even under the permissive rational relationship test, the court doesn't buy the reason The court thinks that the government is targeting an unpopular group for disadvantage because of animosity towards or fear of that group The court applies almost a defacto intermediate scrutiny because it perceives the drive behind the law to be a prejudice

Rankin v McPherson

ROL: A state may not fire an employee for private speech on a matter of public concern without violating the employee's right to free speech under the First Amendment. FACTS: Ardith McPherson (plaintiff) worked as a clerical employee in the office of the constable, a law enforcement agency in Harris County, Texas. The agency was a private office that was not accessible to the public. On March 30, 1981, there was an assassination attempt on President Ronald Reagan of the United States. McPherson heard the news of the assassination attempt while at work and engaged her coworker in a brief conversation. During the conversation, McPherson said that she was not surprised there was an assassination attempt, considering the president's advocacy of reducing and eliminating welfare programs such as Medicaid and food stamps. McPherson then said that if there was another assassination attempt, she hoped that the attempt would succeed. Another employee overheard and reported these remarks to Rankin (defendant), the constable. Rankin brought McPherson into a meeting to discuss the remark and then fired McPherson. McPherson sued, claiming that her being fired for the remark was a violation of her right to free speech under the First Amendment. ISSUE: May a state fire an employee for private speech on a matter of public concern without violating the employee's right to free speech under the First Amendment? HOLDING AND REASONING: No. A state may not fire an employee for private speech on a matter of public concern without violating the employee's right to free speech under the First Amendment. The right to free speech on matters of public concern is a paramount First Amendment right. Free speech requires robust debate on public matters, and all points of view and forms of expression are protected, regardless of whether such views and expressions are controversial. When a public employee is fired for speaking on a matter of public concern, the state must show that the employee's interest in making the speech is outweighed by the state's interest in the ability to provide a public service. Here, McPherson performs clerical work for the office of the constable, which is a law enforcement agency. After hearing about an assassination attempt on the president, McPherson made an informal comment to a colleague suggesting that she hoped the attempt was successful based on the president's agenda to cut social-welfare programs. McPherson was commenting on a matter of public concern, and thus, McPherson's interest in making the statement must be balanced against the state's interest in efficiently and effectively providing a public service. Nothing in the record suggests that McPherson's statement interfered with the operations or function of the office of the constable. The statement was made to a coworker in an area that was not accessible to the public and could not have been attributed to the office of the constable. Finally, only one other employee heard the remark. The statement did not demonstrate that McPherson was not fit for her job or that the statement was detrimental to the public service provided by the office of the constable. Rather, McPherson was fired due to the content of her private speech. These facts support the conclusion that McPherson's interest in expressing private speech on a matter of public concern outweighs the state's interest in discharging her. Therefore, McPherson's firing violated her right to free speech under the First Amendment. The judgment is affirmed. Basically, it wasn't a real threat, it was just political commentary CONCURRENCE: The majority unnecessarily balances McPherson's right to free speech against the state's interest in providing a public service. Informal comments such as McPherson's in this case will rarely cause such disruption to an office as to justify firing an employee. DISSENT: The majority incorrectly concludes that McPherson's comment is a constitutionally protected form of speech. McPherson's comment regarding the next assassination attempt is not a matter of public concern. Even assuming that the comment constitutes speech on a matter of public concern, the state's interest outweighs the speaker's interest. A law enforcement agency should not have to tolerate its employees approving of or suggesting that the president be assassinated.

Roberts v Jaycees

ROL: A state may prohibit a private organization from excluding members on the basis of gender upon a showing of a compelling interest in preventing gender-based discrimination that outweighs competing First Amendment interests in upholding the freedom of association. FACTS: Jaycees were a social organization that only permitted young males to become regular members Women and older men could become associate members with limited benefits Two local chapters admitted women as full regular members The united states Jaycees revoked their rights The local chapters then said that the exclusion of women violated the Minnesota Human Rights Act, which prohibits discrimination on the basis of sex in a "place of public accommodation" Jaycee brought suit in federal court against Katherine Roberts, the state official charged with enforcing the MHRA, on the grounds that it violated their right of free association under the first amendment Right of expressive association (the right to band together to engage in activities that are protected by the first amendment) US court of appeals held that it violated the 1st and 14th amendments and Roberts appealed to SCOTUS SCOTUS says that it does not violate A state may prohibit a private organization from excluding members on the basis of gender upon a showing of a compelling interest in preventing gender-based discrimination that outweighs competing First Amendment interests in upholding the freedom of association. It is not possible that the overarching right of the freedom of association will implicate confliction freedoms of the constitution The bill of rights protected intimate relationships (family, etc) from state interference Relationships between employees in large business associations do not receive this type of protection Then there's a bunch of relationships between these two opposites The local Jaycees are large and unselective, so they do not have the distinctive characteristics that might afford constitutional protection to the decision of its members to exclude women The right to associate for expressive purposes is not absolute Infringements on that right may be justified by regulations adopted to serve compelling state interests Unrelated to the suppression of a particular viewpoint that cannot be achieved through less restrictive means Jaycee did not make a compelling argument that women though differently than men So, it wouldn't really affect their message to include women in their voting The MHRA is viewpoint-neutral, and there is no way to accomplish the eradication of discrimination against women without actually ceasing to discriminate against them in membership situations. Compelling state interest

New York v Ferber

ROL: A state may prohibit the exhibition, sale, or distribution of child pornography even if that material does not meet the articulated test for obscenity. FACTS: Ferber (defendant) owned an adult bookstore in New York and was arrested after he sold two films depicting minor boys masturbating to an undercover police officer. Ferber was convicted in state trial court of violating a New York criminal statute that prohibited persons from knowingly promoting sexual performances by children under the age of sixteen by distributing material depicting such performances. The intermediate appellate court affirmed Ferber's conviction. The New York Court of Appeals reversed the conviction, however, on First Amendment grounds. The United States Supreme Court granted certiorari. ISSUE: Whether a state criminal statute prohibiting persons from knowingly distributing material that promotes sexual performances by children under the age of sixteen violates the First Amendment. HOLDING AND REASONING: No. The federal government and forty-seven states have passed laws prohibiting the production of child pornography without actually requiring it to be legally obscene. While there is a risk that these statutes criminalize protected expression as well, the states' interest in prohibiting child pornography outweighs this risk for several reasons. Firstly, states have a compelling interest in safeguarding the physical and psychological well-being of minors. Secondly, the distribution of photographs and films depicting juveniles is intrinsically related to the sexual abuse of children in two ways: (1) the materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation; and (2) the distribution network for child pornography must be closed if the production of material that requires the sexual exploitation of children is to be effectively controlled. As states have a significant interest in preventing the sexual abuse of children, states may constitutionally regulate the distribution of child pornography even if it is not considered legally obscene under Miller test. The Miller test for obscenity is inapplicable for this case because the test does not take into account the physically or psychologically harm caused by the production of the work. Thirdly, the advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production of child pornography, an activity illegal throughout the United States. The expression is illegal and thus the advertising and selling of the work should also be illegal. Fourthly, the value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis. Therefore, it is unlikely that the work contains necessary literary or artistic value that justifies protecting it under the First Amendment. Fifthly, recognizing and classifying child pornography as a category of material outside the protection of the First Amendment is not incompatible with the Court's earlier decisions governing content-based regulations of speech. When a definable class of material, such as that covered by this New York statute, bears so heavily and pervasively on the welfare of children engaged in its production, the balance of competing interests is clearly struck and it is permissible to consider these materials as without First Amendment protection. This holding is limited, however, by the fact that state legislation regulating child pornography must adequately define the conduct prohibited to be constitutional. Additionally, states must require knowledge by a defendant to find criminal action. The New York statute meets these requirements, and thus Ferber's conviction is sustained. The decision of the New York Court of Appeals is reversed. CONCURRENCE: The majority is correct in determining that states have special leeway in regulating child pornography due to the special and compelling interest in protecting the well-being of the youth, and the particular vulnerability of children. However, the majority should not have gone as far as to hold that states may regulate even depictions of children engaged in sexual acts that have serious literary, artistic, scientific, or medical value. The First Amendment should protect these particular cases. However, because the work in question in the case does not fall into this category, the majority's decision is correct.

Kramer v Union Free School District

ROL: A state statute that denies the right to vote in school district elections to residents who do not own real property within the school district violates the Equal Protection Clause of the Fourteenth Amendment unless the exclusion of these residents is necessary to further compelling state interests. FACTS: Section 2012 of the New York Education Law provided that in certain New York school districts, residents who were otherwise eligible to vote in state and federal elections could vote in the school district election only if they owned or leased taxable property within the district and were parents or had custody of children enrolled in the local public schools. Kramer (plaintiff), a bachelor who did not own or lease taxable real property, filed suit against Union Free School District (UFSD) (defendant) in federal district court on the grounds that § 2012 denied him equal protection of the laws in violation of the Fourteenth Amendment. The district court upheld § 2012 as constitutional, and Kramer appealed to the United States Supreme Court. ISSUE: Does a state law requiring property ownership as a prerequisite for voting in a school district election violate the Equal Protection Clause of the Fourteenth Amendment? HOLDING AND REASONING: Yes. Besides Kramer, § 2012 also disenfranchises senior citizens and others living with children or relatives; clergy, military personnel, and others who live on tax-exempt property; boarders and lodgers; parents who neither own nor lease qualifying property and whose children are too young to attend school; parents who neither own nor lease qualifying property; and those whose children attend private schools. The right to vote is fundamental. Therefore the exclusion of population groups from voting in school district elections must promote a compelling state interest. UFSD argues that the state has a legitimate interest in limiting the franchise in school district elections to "members of the community of interest," or those primarily interested in such elections. UFSD asserts that it is necessary to enfranchise only those primarily interested in school affairs because the ever-increasing complexity of such affairs make it extremely difficult for the electorate to fully understand and appreciate the detailed operations of the school system. Section 2012 does not accomplish this purpose with sufficient precision to justify denying Kramer the right to vote. The classifications in § 2012 permit many persons to vote who have, at best, a remote and indirect interest in school affairs and excludes many others who have a distinct and direct interest in the school meeting decisions. Additionally, UFSD does not offer any justification for the exclusion of seemingly interested and informed residents. As such, § 2012 does not pass the requirements of strict scrutiny necessary to uphold it as constitutional. The decision of the district court is reversed. DISSENT: The majority's invalidation of the New York voting statute is inconsistent with its prior voting rights jurisprudence. For example, in Lassiter v. Northampton County Election Board, 360 U.S. 45 (1959), the Court upheld, against constitutional attack, a literacy requirement applicable to voters in all state and federal elections in North Carolina. The Court reasoned that, in the absence of constitutionally impermissible discrimination, states have broad power to determine the conditions under which the right to vote may be exercised. As Kramer is not the victim of discrimination banned under the Constitution, § 2012 should be upheld as constitutional. Instead of strict scrutiny, rational basis review should be applied and § 2012 invalidated only if it rests on grounds wholly irrelevant to achievement of the government's objectives. The New York legislature made a rational determination that decisions about local educational policy are best left to the most interested residents, or those with property in the school districts or children attending schools in the districts. NY law restricts voting for members of school board Only people w children attending public school in the district and people who own or lease property in the district Exacting scrutiny = strict scrutiny (necessary to achieve a compelling state interest) There are going to be people who aren't in these categories that are going to feel like they have a stake in the decision of the school board Just because you own property in the district, that doesn't mean that you're going to care what the school board does

Gratz v Bollinger

ROL: A university's admissions policy that automatically gives preference to minority students on the basis of race, without additional individualized consideration, violates the Equal Protection Clause of the Fourteenth Amendment. FACTS: Gratz and Hamacher (plaintiffs), both Caucasians, applied for admission to the University of Michigan's undergraduate program. Both were denied admission and filed suit in federal district court against Bollinger (defendant), a University of Michigan administrator, seeking to challenge the University's admissions policy on the grounds that it violated the Equal Protection Clause of the Fourteenth Amendment. The challenged policy ranked applicants on a 150 point scale that accorded different point values to factors such as grade point average, test results, and personal achievements. However, an applicant automatically received twenty bonus points if he or she was a member of an underrepresented minority group, attended a predominantly minority or disadvantaged high school, or was recruited for athletics. Some applicants were flagged for additional personal consideration, but most were admitted solely based on the point system. The district court found that Bollinger violated Gratz and Hamacher's right to nondiscriminatory treatment and issued an injunction prohibiting continued use of the admissions policy. The court of appeals reversed, and the United States Supreme Court granted certiorari. ISSUE: Whether racial preferences in undergraduate admissions violates the Equal Protection Clause of the Fourteenth Amendment. HOLDING AND REASONING: Yes. The University's use of race as a justification for automatically assigning twenty points to each minority applicant is not narrowly-tailored to achieve its purpose of promoting student body diversity. Under this system, applicants are not afforded individualized review and the extra twenty points virtually guarantee admission to any minimally-qualified minority applicants. Thus, race is elevated as the decisive factor in admissions decisions. Other factors such as "extraordinary artistic talent" might be worth only five points on the scale; a very small amount compared to the twenty points given minorities simply due to their status as such. Bollinger argues that the admissions policy is useful for managing the sheer volume of applications received. The fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system. The University's use of race in its admissions policy is not narrowly tailored to achieve the University's asserted compelling interest in diversity. Hence the admissions policy violates the Equal Protection Clause of the Fourteenth Amendment, along with Title VI and 42 U.S.C. § 1981. The summary judgment portion of the district court's decision is reversed and remanded for further consideration. CONCURRENCE: This case differs significantly from Grutter v. Bollinger, 539 U.S. 306 (2003), in which the Court upheld the use of race as a factor in the University of Michigan Law School's admissions policy. The law school's policy required an individual evaluation of each applicant and permitted the consideration of race as merely one factor given equal weight among other factors. Here, the admissions policy has the effect of making the admission of minority students automatic due to its assignment of twenty points to these students. DISSENT: The majority should not treat governmental racial classifications designed to promote equality among races differently from governmental racial classifications designed to discriminate against races. Greater deference should be extended to the University's admissions policy decisions because the policies are designed to remedy a difficult history of racial inequality in higher educational institutions. The effects of this racial inequality are severe in terms of creating extended economic and social inequality among races even outside higher education. Admissions policies designed to promote equality should not be analyzed under strict scrutiny. There are no constitutional problems with the University's admissions policy because there is no evidence that it was designed to limit or decrease enrollment by a particular racial group. This is way more applications than Grutter; 150 points for applicants, divided up between academics (110 points) and non-academic (40 points); if your parents were alumni you got points, if you were from the state the school is in that's points Under equal protection clause, everyone needs to be considered as an individual; if you make race decisive, then you're no longer treating them as individuals (more of a quota); since they assign everything points, that's not really considering people as an individual Dissent - they argue the same thing that D did; the program is more or less the same thing as Grutter, except here they are being more open about it; judges give school the points to being so open that they're giving 20 points based on race; this judgement isn't really going to help because applicants are going to still bring up their race in another way

Cohen v Cali

ROL: Absent a particularized and compelling purpose, a state may not criminalize a public display of a single four-letter expletive without violating the First and Fourteenth Amendments. FACTS: The Los Angeles Municipal Court convicted Robert Cohen (defendant) for violating the state penal code prohibiting "maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct." He was convicted after wearing a jacket bearing the words "**** the Draft." Women and children were present. Cohen argued that he wore the jacket as a means of expressing the depth of his feelings toward the Vietnam War and the draft. He did not engage in any threatening conduct in conjunction with this speech. Cohen challenged his conviction on First Amendment grounds against the State of California (plaintiff), but the California Court of Appeal upheld the conviction. The Supreme Court of California denied review, but the United States Supreme Court granted certiorari. ISSUE: Whether a statute that prohibits disturbing the peace by offensive speech violates the freedom of expression protected by the First Amendment. HOLDING AND REASONING: Yes. Cohen's conviction is based entirely on the offensiveness of his speech, rather than any form of conduct. Additionally, the case does not fall into any recognized categories of unprotected speech based on the Court's prior jurisprudence, such as obscenity or "fighting words." California argues that state law rightfully banned Cohen's speech because his distasteful mode of expression was thrust upon unwilling or unsuspecting viewers. California further argues that the state has a significant interest in protecting its sensitive citizens from otherwise unavoidable exposure to Cohen's crude form of protest. This argument is rejected, as the presumption of the presence of unwitting listeners or viewers does not automatically justify curtailing all potentially offensive speech. The government may only regulate discourse to prevent others from hearing it if it proves that substantial privacy interests are being invaded in an essentially intolerable manner. The viewers of Cohen's jacket had the option of very easily looking away and guarding themselves from the offensiveness of his message. Thus, California presented no evidence to support Cohen's conviction for "breach of the peace" because it did not show that persons powerless to avoid his speech did, in fact, object to it. Additionally, it is necessary to determine whether California could constitutionally remove, as offensive conduct, the word "****" from public discourse. The constitutional right of freedom of expression is very broad and powerful, and is designed to remove governmental restraints from public discussion. Due to the extreme constitutional importance of this freedom, states may be required to tolerate speech that some citizens find offensive. There is no compelling reason for California to criminalize this particular word as opposed to any other potentially offensive words. In certain circumstances, the words can be used as part of protected speech under the First Amendment. Finally, any governmental regulation that prohibits this word risks suppressing a substantial number of ideas in the process. These principles justify overturning Cohen's conviction for using this particular word in an expressive context. Absent a more particularized and compelling reason for its actions, California cannot make Cohen's simple public display of a single four-letter expletive a criminal offense. The decision of the lower courts is reversed. DISSENT-BLACKMUN: Cohen's display contains mainly conduct and little speech. Even if it is speech, the case should be governed by Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), which held that the First Amendment does not protect "fighting words." Not likely to be perceived as a direct personal insult There are no captive viewers (no one is forcing people to look at the jacket) We can assume that a "reasonable" person would call this obscene Harlan - it's inherently impossible to draw a line between the expression of ideas and language that doesn't count as the expression of ideas; when you take the vocabulary and phrases out of someone's message, you often change the message that is trying to be communicated There's also more protection on his jacket because he's commenting on a matter of public importance

US v Virginia

ROL: All governmental gender classifications must be substantially related to an important government purpose that can be demonstrated by the government if it offers an exceedingly persuasive justification for the classification. FACTS: The Virginia Military Institute (VMI) was the only single-sex public higher education institution in the State of Virginia. It functioned to train men for leadership in civilian life and military service using an "adversative" method. VMI refused to admit women. After an adverse court ruling that this policy of excluding women violated the Equal Protection Clause, VMI created an alternative program for women known as the Virginia Women's Institute for Leadership (VWIL). VWIL differed from VMI in its academic offerings, methods of education, and financial resources. ISSUE: Whether VMI's policy of excluding women from admission denies women equal protection of the laws, and, if so, whether the creation of an alternative school for women is the proper remedy for this denial. HOLDING AND REASONING: Yes and no. The standard of review for any governmental gender classification is intermediate scrutiny. This standard requires the government to provide an exceedingly persuasive justification for policies that discriminate against women. Inherent differences exist between men and women, but these differences can be used only for purposes such as remedying the history of sex discrimination against women, or promoting equal employment opportunities, not for denigration of the members of either sex or for artificial constraints on an individual's opportunity. Virginia has not shown an exceedingly persuasive justification for excluding all women from VMI's leadership training. Virginia argues that the existence of a single-sex school furthers the important state purpose of maintaining a diversity of public education institutions. This argument is rejected. VMI has never existed for the purpose of promoting diversity, evidenced by its policy of excluding women. Virginia also argues that its adversative method of training students provides educational benefits that cannot be made available, unmodified, to women. There is no reason that Virginia's stated goal of training competent future leaders cannot be extended to include women. Without further proof, Virginia falls short of establishing the "exceedingly persuasive justification" required for a sustainable gender-based classification. In addition, the VWIL is different and substandard when compared to VMI on many levels. The creation of this school does not provide a meaningful educational alternative for women seeking to attend VMI. Thus Virginia's policy of excluding women from VMI is unconstitutional. CONCURRENCE: The majority's addition of the requirement that the government offer an "exceedingly persuasive justification" for gender-based classifications injects an element of uncertainty into the Court's long-standing intermediate scrutiny test requiring governmental gender classifications to be substantially related to an important government purpose. As new educational opportunities opened up for women, Virginia had notice that the constitutionality of VMI's exclusion policy would one day be challenged. However, VMI responded appropriately by commissioning an independent study that ultimately concluded VMI should not admit women, as this would threaten the school's integrity and processes. However, VWIL is not an appropriate remedy because of its lack of equal opportunities for women. DISSENT: The majority's opinion effectively shuts down a long-standing and valuable public education institution. The majority ignores precedent, history, and tradition in holding that VMI must admit women. The majority completely ignores evidentiary findings that inherent physical differences exist in men and women that justify requiring them to attend separate schools. VMI is special It uses an adversative message (includes physical rigor, mental stress, absence of privacy, etc) So Virginia says this isn't a great place for guys and gals to be mixing together They will set u Virginians women's institution for learning (VWIL), which will be sufficiently similar that it satisfies the elements of equal protection The court says that they don't believe that Virginia is trying to promote diversity There is nothing in the record that diversity was any part of what prompted Virginia to set p two separate training grounds for citizen soldiers divided between men and women This (^) is an illustration of why scrutiny makes a difference (if it was rationale basis standard, the court wouldn't really probe beyond the face; there would be a lot of deference to the state) Virginia says that they have statistics that show that women do not flourish in this adversative atmosphere The court will not assume for the sake of argument that these statistics are valid The court says that even if the studies are accurate, they don't show that all women would fail to flourish in this aversive atmosphere Also, btw, there are plenty of men who would not do well in this type of atmosphere Gender cannot be used as a proxy for ability or inability to perform well The state has failed to show that it needs to keep women out all together from VMI to achieve its goal (to maintain the adversity of VMI and its other particular qualities) Has equality truly been served in this case? Virginia says yeah at VWIL women will get pretty much the same opportunity that they would have at VMI The court is not impressed by that argument The programs are not equal It's reminiscent from what we saw in Sweatt v Painer (where Texas created a separate law school for blacks and the court says that even if we assume the physical facilities are comparable, the students are still not getting the same benefit because at U Texas, the school has more prestige and opportunities for networking etc)

Adarand Constructors, Inc. v Pena

ROL: All racial classifications imposed by the federal, state, or local government must be analyzed by a reviewing court under strict scrutiny; that is, such classifications are constitutional only if they are narrowly tailored to further compelling governmental interests. FACTS: A federal government program provided a financial incentive for any prime contractors who hired subcontractors controlled by "socially and economically disadvantaged individuals" in the performance of federal government contracts. Individuals qualifying as "socially and economically disadvantaged" were presumed to include racial minorities. In 1989, the Central Federal Lands Highway Division (CFLHD) awarded a prime contract for a construction project to Mountain Gravel & Construction Company (Mountain Gravel). Mountain Gravel then accepted bids from subcontractors for the guardrail portion of the project. Adarand Constructors, Inc. ("Adarand") (plaintiff) submitted the lowest bid. However, Mountain Gravel awarded the subcontract to Gonzales Construction Company ("Gonzales"), a business controlled by "socially and economically disadvantaged individuals." Mountain Gravel stated that it would not have awarded the subcontract to Gonzales were it not for the financial incentive it received under the federal government program. Adarand brought suit against Pena (defendant), the Secretary of Transportation, in federal district court. The district court and the court of appeals ruled in favor of Pena, and the United States Supreme Court granted certiorari. ISSUE: Whether a federal government program that provides financial incentives to prime contractors to hire subcontractors controlled by "socially and economically disadvantaged individuals," when those individuals are presumed to be racial minorities, violates the equal protection component of the Due Process Clause of the Fifth Amendment. HOLDING AND REASONING: Yes. Adarand has standing to sue not only for damages on the contract it previously lost, but also for forward-looking injunctive and declaratory relief for any future use of the subcontracting compensation clause in question. While both parties agree that federal racial classifications should be subject to some form of heightened scrutiny, they disagree as to the exact level required. Precedent decisions have established three general propositions regarding governmental racial classifications that are useful in guiding this inquiry. First, the principle of "skepticism" means that all government preference based on racial or ethnic criteria must be heavily examined. Second, the principle of "consistency" means that the actual race of the group at issue does not matter for purposes of the scrutiny afforded racial classifications as all racial classifications must receive the same treatment under the Equal Protection Clause. Third, the principle of "congruence" means that the same rules for equal protection analysis under the Fourteenth Amendment should also guide equal protection analysis under the Fifth Amendment. When taken together, these precedent principles comprise the rule that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny that is, such classifications are constitutional only if they are narrowly tailored to further compelling governmental interests. Justice Stevens's argument that the Court should treat programs differently according to whether their racial discrimination is "benign" or "invidious" is rejected, as all racial classifications by the government have detrimental effects on minorities. The government has a significant responsibility to address past instances of racial discrimination in America's history, and applying strict scrutiny to future classifications is the only way to accomplish this. To the extent that precedent cases hold otherwise, they are overruled. The decision of the court of appeals is vacated and remanded for further consideration under strict scrutiny. CONCURRENCE: The government can never have a "compelling interest" in discriminating on the basis of race for the purpose of remedying past racial discrimination. Such a practice impermissibly makes one race a "creditor" and another a "debtor," and violates equal protection principles. CONCURRENCE: The dissents are incorrect in suggesting the Court should have considered the motive behind a racial classification when determining whether it is constitutional. Government programs based on "racial paternalism" rather than invidious discrimination still harm minorities by perpetuating stereotypes of inferiority. Minorities are seen as possessing handicaps, and as groups that cannot compete in society without the "patronizing indulgence" of the majority. Despite having potentially good motives, all governmental racial classifications are unconstitutionally discriminatory. DISSENT: The majority opinion incorrectly assumes that all racial classifications by the government are the same. There is a significant difference between government programs that "further oppression" versus those that seek to remedy past instances of racial discrimination by promoting social and economic equality. The Court incorrectly fails to provide an exception for programs that are designed to benefit minorities by remedying past discrimination. Additionally, the majority fails to distinguish between affirmative action programs enacted by Congress and those enacted by state and local governments. The former theoretically represents the national will of the people and should be entitled to greater deference by courts. DISSENT: The majority should not fail to recognize the lingering negative effects of a history of racial discrimination on minorities in this country. Racial minorities are still confronted with unique difficulties in getting jobs, securing housing, and winning business contracts. Congress could have correctly concluded that an affirmative action program was necessary to secure the "equal protection of the laws" required by the Fourteenth Amendment because of America's history of discrimination and its continued negative consequences. While the majority opinion reaches the wrong result, it still has precedential value as it correctly acknowledges that a "strict scrutiny" standard does not equate to the automatic invalidation of all affirmative action laws. The first time that the court wasn't fractured on this issue A case study of really strict scrutiny Richmond developed a set-aside program for those doing business with the city If you're a general contract and you're doing business with the city, then you had to direct at least 30% of your business to minority business enterprises (MBE) This was patterned on a federal program that the SCOTUS had upheld (that was a 10% set-aside) (there's a higher proportion of minorities in Richmond) This program is struck down Two principle opinions - O'Conner & Marshall's dissent (largely tracks the arguments he's making to Bakke, saying it should be intermediate scrutiny) But you cannot relax the standard of scrutiny for racial classifications when the government says that the program is designed to help minorities These programs will sow the seeds of racial hostility Also perpetuates the idea that minorities cannot succeed without the help of the government Government program makes explicit use of race (refers expressly to race) How to reconcile Crosen and Adarand? Was the court in Crosen being disingenuous? Or are state and federal programs both going to get strict scrutiny, but federal will have a better chance of surviving it because of the 14th amendment Surveys the courts previous holdings and extracts three propositions/lessons: (prof thinks the first one captures the whole idea and the other two are superfluous 1. Skepticism (any preference based on racial or ethnic criteria must necessarily receive a most searching examination) 2. Consistency (the standard of review under the equal protection clause is not dependent on the race of those burdened or benefitted by a particular classification) 3. Congruence between the application of the 5th and 14th amendment Stevens dissent - if we step back and look at the reality of these programs, and compare them to past racial classifications, then they're obviously not the same; there is a diff between a policy designed to "perpetuate a caste system" and one that is trying to "eradicate racial subordination"; you cannot equate the oppressive aims of "bigots" with this program; you need to use strict scrutiny to smoke out a benign motive to masquerading as a legitimate motive (what the majority says), but Stevens is like you do not have to put a program under a magnifying glass to determine that Thomas - (legally? Morally?) no difference between water fountains and programs like this Ginsberg - stern always says that strict scrutiny basically means automatic invalidation; Ginsberg disagrees; she tries to find common understanding and concerns (kinder and gentler version of strict scrutiny) Congress can act affirmatively to counter the lingering parts of discrimination Strict scrutiny to smoke out bad motives? To keep that from being fatal, she offers a mild version of strict scrutiny stern doesn't agree w her

Gertz v Robert Welch

ROL: As long as they do not impose liability without fault, states may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory false statements causing injury to a private individual. FACTS: In 1968, a Chicago policeman named Nuccio shot and killed a youth named Nelson. State authorities prosecuted Nuccio for the homicide and ultimately obtained a conviction for second degree murder. The Nelson family retained Elmer Gertz (plaintiff), an attorney, to represent them in a civil action against Nuccio. Robert Welch, Inc. (Welch) (defendant) was a publisher of American Opinion, a magazine warning of a nationwide conspiracy to discredit local law enforcement agencies and replace them with a national police force capable of supporting a Communist dictatorship. The magazine ran a story about the Nuccio trial where it accused Gertz of being a Communist and participating in the Communist campaign against local police. The magazine article contained serious factual inaccuracies. Gertz filed suit against Welch in federal district court seeking damages for libel. The district court awarded Gertz $50,000 in damages. The appellate court affirmed but found that Gertz may have needed to prove actual malice to recover under New York Times v. Sullivan, 376 U.S. 254 (1964). The United States Supreme Court granted certiorari. ISSUE: Whether a publisher of a false, defamatory statement about a private individual may claim a federal constitutional privilege against liability for injuries inflicted by the statement. HOLDING AND REASONING: No. Gertz is a private figure and thus did not have to prove actual malice to recover damages under applicable state law. As long as they do not impose liability without fault, states may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory false statements causing injury to a private individual. However, state remedies for defamatory falsehoods are limited in that they may reach no farther than is necessary to protect the legitimate interest involved. Thus, if applicable state law does not require a private plaintiff to prove the existence of "actual malice" as required by New York Times, and that plaintiff does not prove actual malice, he may not recover damages for defamatory statements unless he has suffered "actual injury" from the statements. States may not, however, set their own requirements for recovering punitive damages, and private plaintiffs thus can only recover punitive damages by proving the existence of actual malice. Otherwise, the private plaintiff's recovery is limited to only damages which are sufficient to compensate him for actual injury. Despite his status as an officer of the court and a former member of the city housing committee, Gertz is not a public official. Additionally, his participation in the Nuccio trial did not give him any "general fame or notoriety in the community" sufficient to make him a public figure. Gertz should be treated as a private individual. Applicable state law permits recovery for damages without proving actual malice. Gertz thus did not have to prove actual malice to justify his award of $50,000 from the jury. As this award was given to Gertz to compensate him for his injuries, it is upheld. The decision of the lower courts is affirmed. CONCURRENCE: The majority's holding gives the press sufficient protection against punitive damages. The Supreme Court should settle its position once and for all on defamation law. DISSENT: For almost two hundred years of the Nation's history, the law of defamation and the right of private individuals to recover for defamatory falsehoods have been exclusively governed by state courts and state legislatures. The law governing the defamation of private citizens remained untouched by the First Amendment because until recently, the Supreme Court consistently held that libelous words constitute a class of speech wholly unprotected by the First Amendment, subject only to the exception carved out in 1964 by New York Times. However, the majority's decision imposes federal control over major aspects of libel law by requiring the plaintiff in all libel actions to prove the existence of actual damages. This goes against the defamation laws of most states. The majority should adopt a standard of strict liability for defamatory statements made about private individuals, as this is the only way to provide adequate constitutional protection for plaintiffs. Court allows an involuntary public figure, but virtually no one ever qualifies Limited purpose public figure - when they're normally a private figure, but in this one compartment they are public (like if they inject themselves into a controversy with the purpose of influencing the controversy)

Grutter v Bollinger

ROL: Consideration of race as a factor in admissions by a state law school does not violate the Fourteenth Amendment because supporting student body diversity is a compelling state interest; however, the school must demonstrate it previously made a serious, good faith consideration of workable, race-neutral alternatives to achieve the sought-after racial diversity. FACTS: The University of Michigan Law School (Law School) followed an unofficial policy that sought to achieve student body diversity by giving "substantial weight" to the race of each applicant in making admissions decisions, in addition to its consideration of other academic and non-academic variables. Barbara Grutter (plaintiff) was a Caucasian Michigan resident who applied to the Law School with a 3.8 grade point average and 161 LSAT score. The Law School rejected her application, and she filed suit in federal district court against Bollinger, the university president and former dean of the Law School, and other university officials (defendants) alleging her denial of admission was a violation of the Equal Protection Clause of the Fourteenth Amendment. The district court held that the Law School's use of race in its admissions policy was unlawful, but the court of appeals reversed. The United States Supreme Court granted certiorari. ISSUE: May a school use race as a factor in student admissions without violating the Equal Protection Clause of the Fourteenth Amendment? HOLDING AND REASONING: Yes. The Court previously addressed the use of race as a consideration in higher education admissions in its decision in University Regents v. Bakke, 438 U.S. 235 (1978). In Bakke, the Court was unable to reach a majority on the question of whether it was unconstitutional to consider race as an important factor in admissions for the purpose of remedying past discrimination against minorities. Student body diversity is a compelling state interest that justifies the use of race in university admissions. The proper standard for reviewing this issue is strict scrutiny. In determining that the Law School's policy passed strict scrutiny, a certain amount of deference is given to the Law School's admissions department in their determination that diversity is essential to its educational mission. The Law School cites significant benefits as reasons for its policy, including the promotion of cross-racial understanding, the breaking down of racial stereotypes, and the enabling of students to better understand persons of different races. Any one of these benefits constitutes a compelling state interest for strict scrutiny. Additionally, the Law School uses narrowly-tailored means to accomplish its purpose because it does not employ a "quota system" as outlawed in Bakke to achieve diversity. The Law School provides an individual, holistic review of each of its applicants and reasons that alternative methods of achieving the Law School's purpose risk sacrificing both academic excellence and other types of diversity in the school. However, the Law School should cease racial consideration in its admissions policies after instances of past discrimination have been sufficiently remedied. The admissions policy does not violate the Fourteenth Amendment, and the decision of the court of appeals is affirmed. CONCURRENCE: The majority's conclusion is correct, but the majority should have required the Law School to adopt "sunset provisions," which would require the race considerations in the Law School's admissions policy to be phased out as racial discrimination ceases to be a problem in the admission of minorities to higher education institutions. CONCURRENCE/DISSENT: The educational benefits touted by the Law School's admissions department provide sufficient constitutional justification for their actions. The promotion of these benefits merely constitutes a life lesson for students in good citizenship. The effect of the majority's holding would be to uphold any type of program that purports to teach such values, even if it is discriminatory in some way and does not further a compelling state interest. It is the correct result given the specific facts at issue. The holding might be overly fact-specific and difficult to apply to future cases. CONCURRENCE/DISSENT: Frederick Douglass said that the government should leave African Americans alone and that African Americans should be provided only with justice and the opportunity to succeed, and they would do so. The Law School's admissions policy is inherently elitist and not effective in remedying the past effects of discrimination of minorities. Additionally, the majority determines incorrectly that the admissions policy is necessary for furthering a compelling state interest. There is no pressing public necessity to maintain a public law school. Michigan is already served by several private law schools, and some states operate without even one public law school within their borders. The Law School enacted the policy to serve its own elitist goals. The Law School's policy should be invalidated, and the judgment of the court of appeals affirmed. DISSENT: The admissions policy is a glorified system of employing racial balancing or racial quotas in higher education. Minorities are admitted in relatively precise ratios, suggesting that the Law School's admissions department makes deliberate balancing efforts to create a certain racial composition within the student body. This constitutes the exact type of behavior outlawed by the Court in Bakke. DISSENT: The majority did not properly apply strict scrutiny. The majority should not have been so quick to accept the Law School's statement that its policy furthers important educational benefits, but should have instead conducted a more sweeping inquiry into the constitutionality of the policy's actual effects. The majority did not sufficiently inquire into whether the Law School actually conducted an individual, holistic review of each applicant for admission. Dissent really says you have to exhaust every possibility; majority is like no, that's too much work The school is very elitist, so they rely on race exception to allow other students in without lowering their standards, the dissent says just lower it; majority says that you don't have to lower it and start being a whole diff type of law school By upholding this part of the program, race is going to become a permanent part of admissions; O'Connor says that in 25 years you won't need these types of decisions, so they'll go away on their own Strict scrutiny is not always fatal It is possible for a program to be subjected to strict scrutiny and survive U Michigan law school admission process No one's admission is pre-determined Before your fate is decided as an applicant, somebody is going to look at your file Said that they can use race as a factor in the whole picture (but it's not a determining factor) What's Michigan law schools reason for diversity? They have a compelling interest in promoting diversity within their law school to certain groups Race is just a plus in an application What are the education benefits of having more than a handful of minorities at a law school? It exposes students to diverse perspectives Having a tiny handful of diverse students wouldn't really achieve this Dissent (?) - Michigan law school should have looked into race neutral alternatives to bringing diversity before going this far Female (?) justice said - There's a fluctuation in the # of minorities admitted every year and if there were a quote, you would expect a flat line Yes, we want the rule to be narrowly tailored to the purpose but that doesn't mean that the law school has to exhaust ever other possible race-neutral alternative to helping diversity

New York Times v Sullivan

ROL: If a plaintiff is a public official or is running for public office, he or she can recover damages for defamation only by proving with clear and convincing evidence the falsity of the defamatory statements and the presence of actual malice in the speaker. FACTS: Sullivan (plaintiff) was Commissioner of the Police Department, Fire Department, Department of the Cemetery, and Department of Scales for Montgomery, Alabama. He brought a civil libel action against New York Times Co. (defendant) after it printed allegedly false and defamatory statements about Sullivan's actions to control African American protesters and his treatment of Dr. Martin Luther King, Jr. The newspaper article in question accused Sullivan's police force of conducting a wave of terror against African American students and brutally harassing Dr. King. It is undisputed that several of the allegations were either false or exaggerated. At trial, the trial judge charged the jury that the statements in the article were "libelous per se" and that damages were appropriate if the statements were merely "of and concerning" Sullivan. The jury returned a verdict for Sullivan and awarded him $500,000 in damages. The Alabama Supreme Court affirmed, and the United States Supreme Court granted certiorari. ISSUE: Whether a state law for civil liability that disregards intention abridges the freedom of speech and press guaranteed by the First and Fourteenth Amendments when applied to an action brought by a public official against critics of his official conduct. HOLDING AND REASONING: Yes. The rule of law announced by the Alabama courts is constitutionally deficient because it fails to provide safeguards for the freedom of speech and freedom of press required by the First and Fourteenth Amendments. It is well established that there is a profound national commitment in America to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on the government and public officials. The treatment of African Americans in the Civil Rights movement qualified as one such issue worthy of open public debate. However, the question remains whether the otherwise constitutionally-protected article forfeited its protections because it contained false and allegedly defamatory statements. Historically, First Amendment protections do not turn on whether the speech sought to be protected is true, popular, or socially useful. Additionally, criticism of official conduct—an important aspect of open public debate—does not lose its constitutional protection just because it is defamatory. Since both false and defamatory speech relating to public officials is individually protected, the First Amendment also protects the combination of the two. This is historically demonstrated by Congress's conclusion that the Sedition Act of 1798 was unconstitutional because it prohibited the ability of individuals to speak out against the government. Congress found that it was inadequate even to permit defendants accused of violating the Sedition Act to offer a defense of truth, as this required an impermissible level of self-censorship in violation of the First and Fourteenth Amendments. Thus, it would be inadequate to permit New York Times Co. to offer a defense of truth. The only proper way to guarantee that the protections of freedom of speech and of the press are not ignored in civil libel actions is to adopt a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice. Actual malice occurs when the defendant knew that the statement was false or acted with reckless disregard of the truth. The evidence presented is constitutionally insufficient to support a judgment for Sullivan as there was no indication that actual malice existed. The decision of the Alabama Supreme Court is reversed.

Miller v California

ROL: In determining whether material is obscene, the trier of fact must consider three guiding principles: (1) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. FACTS: Miller (defendant) conducted a mass-mailing campaign advertising the sale of obscene books by sending mailings depicting sexual acts to unwilling recipients through the mail. Miller was convicted in state court by the State of California (plaintiff), under a California criminal obscenity statute which prohibited the distribution of obscene materials. The court of appeals affirmed, and Miller appealed to the United States Supreme Court. ISSUE: Does a mass mailing depicting sexual acts constitute obscenity unprotected by the First Amendment? HOLDING AND REASONING: Yes. States have a legitimate interest in prohibiting the distribution of mass mailings depicting sexual acts to unwilling recipients because of the high risk that these materials are offensive. Because the definition of "obscenity" has never before been articulated by the Court, it is necessary to define the term now. The permissible scope of state obscenity regulations must be confined to works which depict or describe sexual conduct. The conduct must be specifically defined by state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, portray sexual conduct in a patently offensive way, and, taken as a whole, do not have serious literary, artistic, political, or scientific value. In determining whether material in question meets this standard, the trier of fact must consider three guiding principles: (1) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. In listing these guidelines, however, it is stressed that states are still required to adopt their own regulatory schemes for obscenity through their state legislatures. Applying these principles to the present case, sex and nudity may not be exploited without limit by pictures or films any more than live sex can be exhibited or sold without limit in public places. At a minimum, depictions of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. The decision of the court of appeals is vacated and remanded for further consideration under the new test announced by the Court. DISSENT: Criminal prosecution for obscenity should only be available in cases where a party publishes or distributes work that has already been found obscene in a civil proceeding. This would at least make an unconstitutionally vague criminal law specific. It would not, however, address the larger issue of whether there is an implied exception to the First Amendment's protections for obscenity. It does not. DISSENT: The criminal statute at issue is overbroad and unconstitutional on its face. Three prong obscenity test: 1. Whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest (from Roth) 2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and 3. Whether the work, taken as a whole, lacs serious literary artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary

School District v Schempp

ROL: Legislation mandating the reading of religious scripture as part of a public school curriculum violates the Religion Clauses of the First Amendment. FACTS: The United States Supreme Court consolidated two cases to address the constitutionality of legislation mandating readings from Christian scripture at the start of each school day. In one case, Schempp (plaintiff) sought an injunction against the enforcement of a Pennsylvania state law. In the second case, an atheist couple petitioned for a writ of mandamus to rescind a rule imposed by the Board of School Commissioners of Baltimore City. ISSUE: Does legislation mandating the reading of religious scripture as part of a public school curriculum violate the Religion Clauses of the First Amendment? HOLDING AND REASONING: Yes. Legislation mandating the reading of religious scripture as part of a public school curriculum violates the Religion Clauses of the First Amendment. The Fourteenth Amendment makes the First Amendment applicable to the states. The Establishment Clause prohibits the government from manufacturing its own religion, and it also forbids the government from passing any law that affords a preference to one religion over any other. In order to avoid violating the Establishment Clause, legislation must serve a secular governmental purpose and the primary effect of the legislation must not be to advance or inhibit religion. The Free Exercise Clause prohibits the government from imposing any restrictions upon the individual freedom to engage in religious practices. Legislation violates the Free Exercise Clause if it imposes coercive limitations upon the practice of religion. By contrast, coercion is not a necessary element for legislation to violate the Establishment Clause. The legislation before us does not necessarily require students to participate in religious practices, but it does require students to endure the exercise of religion as part of the regular public school curriculum. The readings take place in public facilities under the oversight of public employees. The readings are religious in nature and the laws in both cases make these religious exercises mandatory. The argument that these exercises seek to advance the secular goals of promoting moral values and the teaching of literature is belied by admissions of the religious character of the exercises. The states argue that forbidding religious exercises in schools works the result of imposing a state-sponsored religion of secularism. Although we agree that the government may not impose laws hostile to the exercise of religion, we do not agree that invalidating these laws amounts to a state-sanctioned preference for those who do not endorse religion over those who embrace a particular ideology. Study of religious scriptures may be presented as a secular aspect of an academic curriculum, but the laws at issue here impose a mandatory exercise of religion. The doctrine of state neutrality does not infringe upon the free exercise of religion by its prohibition against laws that mandate its public exercise, irrespective of the fact that the majority may support its public exercise. The Free Exercise Clause is not a vehicle for the majority to employ state authority to promote the public exercise of religious practices. CONCURRENE: Our primary inquiry should be whether the laws at issue promote the type of interrelationship between government and religion that the Founding Fathers intended to prevent through the adoption of the First Amendment. Today's decision does not prohibit using religious scriptures in the context of academia. It would be difficult to teach history and the social sciences without some reference to Christian ideologies. There are many instances in our society in which religious themes are so regularly invoked as to have lost much of their religious significance. Those common references, such as recital of the phrase "under God" during the pledge of allegiance, do not implicate the consequences of entanglement between government and religion that the First Amendment seeks to avoid. DISSENT: I believe that the conduct of religious exercises in public schools would not violate the First Amendment if structured in such a fashion as to avoid coercion. For example, readings could be conducted outside regular classroom hours or students could be offered the choice to attend alternative activities. In that case, the state would simply be offering a voluntary opportunity for the exercise of individual religious freedom. Is it okay to use this bible because it's non-denominational? No bible is actually non-denominational Plus, you're secular in the way that you exclude everyone who does not subscribe to the Bible Slippery slope argument Chaplains in the armed forces - under the majority's interpretation, that's not a violation They're adults It's voluntary They're deployed somewhere, so they're in a confined environment that the government has constructed; there aren't local chapels, so the government is allowed to provide chaplains This is more of an accommodation or religion than favoring a specific religion Since this case, we've seen two competing philosophies of the establishment clause A separationist philosophy - supports separation of church and state; basically means that they want relatively more of a separation; takes a lower threshold of government involvement with religion to find an establishment clause violation Assimilationists - where there are cases where the court is split over an establishment clause issue, these people are the ones who are less inclined to find a violation; they believe, as a matter of philosophy, that government association with religion is not as threatening as the separationists would have you think; it will take a higher degree of government involvement with religion before they start worrying about an establishment clause violation; they're more likely to see the government as accommodating than favoring The majority opinion is basically an anticipation of the lemon test Actually translates to the first prong of the lemon test: If a law has a non-secular (religious) effect, then it's going to be struck down

Ashcroft v The Free Speech Coalition

ROL: Legislation that proscribes a significant volume of speech that is not obscene under Miller v. California, 413 U.S. 15 (1973), and not child pornography under New York v. Ferber, 458 U.S. 747 (1982), is unconstitutional. FACTS: Congress passed the federal Child Pornography Protection Act (CPPA) in 1996 to extend federal prohibition against child pornography to sexually explicit images that appear to depict minors but that were actually produced without using real children. Specifically, the statute prohibited possessing or distributing images that could be created by using adults who look like minors or by using computer imaging. The Free Speech Coalition (FSC) (plaintiff) brought suit in federal district court against Attorney General Ashcroft and the United States Government (defendant) on the grounds that the CPPA violated the First Amendment. The district court upheld the CPPA. The court of appeals reversed claiming that the CPPA was unconstitutionally broad. The United States Supreme Court granted certiorari. ISSUE: Whether the federal Child Pornography Protection Act of 1996 (CPPA) unconstitutionally restricted speech in violation of the First Amendment because it proscribes a significant volume of speech that is not obscene under Miller and not child pornography under Ferber. HOLDING AND REASONING: Yes. The CPPA prohibits any visual depiction, whether virtual child pornography, Renaissance paintings, or Hollywood movies, that mimics a minor engaging in sexual conduct. The statute does not take into account how the work was produced, or whether any actual children were harmed in production. The United States argues, however, that the CPPA is necessary to prevent indirect harm of children in several ways. Firstly, pedophiles can use depictions of children engaged in sexual acts to convince actual children to participate in sexual activity with adults. Secondly, the pornographic images stimulate and motivate pedophiles. Pedophiles will seek out more works of child pornography and product demand will encourage the sexual abuse and exploitation of actual children. Finally, the existence of highly realistic, computer-generated images could make it harder to prosecute pornographers that used real minors because of the difficulty in determining whether real children were used. In contrast, the FSC argues that the "appears to be" text in the CPPA is substantially overbroad because it prohibits significant lawful expression, and applies severe penalties for even the possession of material that appears to depict real children engaged in sexual acts. To hold that works containing a single explicit act by a minor are unprotected under Ferber's prohibition of child pornography is inconsistent with Ferber for two reasons. Firstly, Ferber's judgment about child pornography is based upon how it is made, not on what it communicates. Secondly, Ferber does not hold that child pornography is by definition without value. On the contrary, the Ferber Court recognized that some instances of child pornography could be considered valuable and protected if made by virtual children. This distinction is central to Ferber's holding. The CPPA goes beyond Ferber, prohibiting virtual images of children and criminalizing works that do not use real children. Additionally, the CPPA goes beyond the Court's prior holding in Miller. The CPPA criminalizes all works depicting virtual images of children engaging in sexual activity, regardless of whether these works meet the legal definition of "obscenity." Thus, the CPPA is inconsistent with Miller and finds no support in Ferber. The government's argument that virtual child pornography might encourage pedophiles to seduce real children is rejected. The mere fact that children can view acceptable speech for adults is not enough to find that speech unprotected by the First Amendment. Additionally, the mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. The government's argument that virtual child pornography is basically indistinguishable from actual child pornography is also rejected because if this is the case, it is doubtful anyone would ever risk criminal sanctions by using real children in pornography. Finally, the government's position that makers of virtual pornography are more difficult to prosecute than makers of actual child pornography is rejected because it is inconsistent with the First Amendment to criminalize a wide range of protected speech for the purpose of criminalizing limited unprotected speech. The CPPA is overbroad and unconstitutional. The decision of the court of appeals is affirmed. CONCURRENCE/DISSENT: While the result reached by the majority is correct, its reasoning is flawed. The majority oversteps in criminalizing pornography depicting teenagers having sex when that work has serious literary, artistic, social, or political value. Additionally, the CPPA is not overbroad, does not fail strict scrutiny, and is not unconstitutionally vague. Strict scrutiny is satisfied because the government has long been recognized as having a compelling interest in protecting America's children. Efforts targeting sexual offenders and actual-child pornography promote this interest. DISSENT: Congress has a compelling interest in ensuring the ability to enforce prohibitions of actual child pornography, and the majority should have deferred to Congress's findings that rapidly advancing technology would soon make it nearly impossible to do so.

Paris Adult Theatre I v Slaton

ROL: Obscene material has no protection under the First Amendment, and states have a legitimate interest in regulating commerce in obscene material and in regulating exhibition of obscene material in places of public accommodation. FACTS: Paris Adult Theatre I (PAD) (defendant) owned and operated an adult movie theater in Atlanta, Georgia. On December 28, 1970, Slaton (plaintiff), the local district attorney, complained to the local state court that PAD was showing two obscene films depicting sexual acts and nudity. PAD was convicted by the Georgia Supreme Court of violating state obscenity laws. PAD challenged the conviction on the grounds that it violated the First Amendment, and the United States Supreme Court granted certiorari. ISSUE: Whether states may regulate commerce in obscene material and exhibition of that material in places of public accommodation. HOLDING AND REASONING: Yes. Under the Fourteenth Amendment, states have the power to make their own laws to prohibit obscenity. Thus, states may prohibit pornographic films if those films are deemed to be obscene, even if they are exhibited for consenting adults, only. States have a legitimate interest in regulating material for all audiences in local commerce and in all places of public accommodation, subject only to constitutional limits. In particular, states have an interest in the quality of public life and the total community environment, the tone of commerce in the great city centers, and public safety itself. Regarding the last interest, a congressional report actually notes the existence of a link between obscene material and crime. Thus, the state legislature can reasonably assume, based on this report, that the reading of obscene books and the watching of obscene displays of conduct could lead to corruption and anti-social behavior. The prior holding in Roth v. United States, 354 U.S. 476 (1957), that obscenity is not protected under the First Amendment is affirmed because of the state's interest in preventing these harms. Additionally, states have a legitimate interest in regulating commerce in obscene material and in regulating exhibition of obscene material in places of public accommodation. PAD's conviction by the Georgia Supreme Court is affirmed. DISSENT: This case represents the difficulty with reconciling state interests in preventing obscenity with individual interests involving protected First Amendment speech. Obscenity law jurisprudence has been unstable since the decision in Roth holding obscenity unprotected. This supports the conclusion that the Roth standard does not work because there is no agreed-upon definition of obscenity. As such, it is very difficult to separate obscenity from protected speech. Ultimately, there should be a reconsideration of the holding in Roth that a class of speech can be absolutely suppressed by federal and state governments. In the present case, however, while it is clear that the state's interests are compelling, there is no evidence provided that justifies the complete prohibition of obscenity by Georgia law. The conviction should be reversed. DISSENT: Justice Brennan is correct to seek a new path for the obscenity jurisprudence. Ultimately, however, it should be up to individuals rather than states to control exposure to obscene materials. If individuals are offended by such materials, they should not view them.

Police Department of Chicago v Mosley

ROL: Once a forum is opened up for assembly or expression for some groups, the government may not prohibit equal access by other groups based on the content of their message. FACTS: The city of Chicago adopted an ordinance that prohibited picketing within one hundred fifty feet of a school. However, it exempted peaceful labor picketing from this general prohibition. Before passage of the ordinance, Earl Mosley (plaintiff) frequently picketed Jones Commercial High School in Chicago. Mosley protested against black discrimination at the school, and was always orderly and peaceful. The Police Department of the City of Chicago (defendant) informed Mosley that if he continued to picket, he would be arrested. Mosley filed suit in federal district court challenging the ordinance as a violation of the First Amendment. The district court dismissed the complaint, but the court of appeals reversed and held the ordinance unconstitutional. The United States Supreme Court granted certiorari. ISSUE: Whether a city ordinance that excluded all picketing near schools except for peaceful labor picketing violates the First and Fourteenth Amendments. HOLDING AND REASONING: Yes. Since the Chicago ordinance treats some picketing differently than others, it should be analyzed in terms of whether it violates the Equal Protection Clause of the Fourteenth Amendment. Picketing is expressive conduct and should be analyzed in terms of whether it violates the First Amendment. The First Amendment prevents the government from restricting expression because of its message, ideas, subject matter, or content. The central problem with Chicago's ordinance is that it defines permissible picketing based on its subject matter. Peaceful picketing on the subject of labor relations is permitted, while all other types are excluded. Any restriction on expressive activity because of its content completely undercuts the profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. Thus, the Chicago ordinance violates the First Amendment as a content-based restriction of expression. It also violates the Equal Protection Clause since the government may not grant the use of a forum to people whose views it finds acceptable while denying use to those wishing to express less-favored or controversial views. Once a forum is opened for assembly or expression for some groups, the government may not prohibit equal access by other groups based on the content of their message. The government may still, however, impose reasonable time, place, and manner restrictions on picketing that are necessary to further significant governmental interests. The Chicago ordinance does not describe prohibited picketing in terms of time, place, and manner but rather in terms of subject matter. The ordinance constitutes an impermissible content-based restriction and is unconstitutional. The decision of the court of appeals is affirmed

thompson v western states medical center

ROL: Provisions of the Food and Drug Administration and Modernization Act of 1997 that entirely ban the advertisement of compounded drugs violate First Amendment protections of commercial speech. FACTS: In order to meet the specialized needs of particular patients, pharmacists may combine two or more drugs or alter the physical form of a drug through various processes referred to as compounding. The Food and Drug Administration and Modernization Act of 1997 prohibited pharmacies that compound prescription medication from advertising or promoting the compounding of any particular combination of drugs. The Act did not prohibit advertising the service of compounding drugs. Western States Medical Center (plaintiff) was one of a group of pharmacies that specialized in drug compounding services and advertised the effectiveness of certain drug combinations by mail and at medical conferences. The pharmacies filed suit in federal court to enjoin the enforcement of the advertising prohibitions as violative of First Amendment commercial free speech. ISSUE: Do the provisions of the Food and Drug Administration and Modernization Act of 1997 that entirely ban the advertisement of compounded drugs violate First Amendment protections of commercial speech? HOLDING AND REASONING: Yes. Provisions of the Food and Drug Administration and Modernization Act of 1997 that entirely ban the advertisement of compounded drugs violate First Amendment protections of commercial speech. The government argues that the Act's ban on advertising compounded drugs promotes the compelling governmental interest in maintaining the small scale availability of compounded drugs for the benefit of certain patients while preventing the unregulated mass production of drug combinations that have not been submitted to government safety testing. The speech restrictions of the Act do not represent the least restrictive means necessary to accomplish the government's purpose. For example, the government could regulate production or sale volume of compounded drugs. The record offers no explanation as to why a restriction on commercial speech is anything but a convenient solution to the problem the government identifies. The dissent proposes a conceivable government interest in prohibiting the sale of compounded drugs to patients who may not benefit from them, but the government has not advanced that interest on appeal and we generally rely upon hypothetical government interests only under rational basis review. The standard for review of infringements upon commercial speech set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980), requires the government to prove that its legislation directly advances a substantial interest and is not more extensive than necessary to achieve that goal. In any event, the dissent's hypothetical interest seems to presume that consumers will make bad choices when presented with truthful information about compounded drugs. The Act's advertising prohibitions do not simply restrict speech that might ostensibly contravene governmental interests in consumer safety. The prohibitions ban a broad range of potentially useful speech related to beneficial applications of compounded drugs. The prohibition is an unconstitutional infringement upon commercial speech. CONCURRENCE: I believe that the Court conducted an accurate analysis of the Central Hudson standards, but I continue to believe that Central Hudson should not be applied to cases like this one. DISSENT: The Act's advertising restrictions directly advance the purpose of limiting the sales of compounded drugs to patients with a medical need. Untested combinations of drugs pose special risks that are best addressed in the context of a physician-patient relationship. The legislature could reasonably conclude from the evidence that doctors will be more likely to prescribe particular drug compounds in response to consumer demand driven by advertisement. Some risks can only be discovered through stringent testing and doctors may not be able to learn of those risks simply through anecdote or experience. The government's concern is not that consumers will make bad choices on the basis of truthful information. The concern is that advertising removes the demand for particular prescription medications from the individualized relationship between doctor and patient. Commercial speech does not enjoy the same stringent protections as individual speech. The Court today applies the commercial speech doctrine in an overly rigid fashion that undervalues the importance of the government's asserted regulatory interests. The government's rationale for this provision was that it would stir up unnecessary demand and people would be nagging their doctors; the court said that this is the same rationale they rejected in Virginia. The virtue of enforce innocence (people would be better off if they're kept in the dark) is wrong; by and large, government restriction on speech cannot be based on the government's fear of the communicative impact of that speech (how people will react to that speech)

Shelley v Kramer

ROL: State court enforcement of a racially restrictive covenant constitutes state action that violates the Equal Protection Clause of the Fourteenth Amendment. FACTS: In 1911, thirty property owners on a street in St. Louis, Missouri signed and recorded a restrictive covenant, which provided that no races other than Caucasians were welcome as tenants on the property for the next fifty years. In 1945, the Shelleys (defendants), a black family, bought a house on one of the restricted parcels of land without knowledge of the restrictive covenant. The Kraemers and other white property owners (plaintiffs) in the subdivision brought suit in circuit court to enforce the covenant, seeking to enjoin the Shelleys from taking possession and divest them of title to the property. The circuit court denied relief to the defendants on the ground that the restrictive covenant was incomplete, because not all property owners in the subdivision had signed. The Supreme Court of Missouri, en banc, reversed and directed the trial court to enter judgment for the defendants, concluding that the covenant was valid and enforcement was constitutional. The case was consolidated with a substantially similar case from Michigan before the United States Supreme Court, which granted certiorari to determine whether the Equal Protection Clause prohibits a state's courts from enforcing racially restrictive covenants. ISSUE: Does the enforcement of a racially restrictive covenant by a state court amount to state action in violation of the Equal Protection Clause? HOLDING AND REASONING: Yes. State court enforcement of racially restrictive covenants constitutes state action, which violates the Equal Protection Clause of the Fourteenth Amendment. That Clause guarantees equal treatment of all people under the law, including in their exercise of various property rights. There is no question that restrictive covenants that discriminate solely on the basis of race would be invalid on equal protection grounds if created by a state or local law. See Buchanan v. Warley, 245 U.S. 60 (1917). The issue here is whether state court enforcement of racially restrictive covenants entered into by private actors constitutes state action. The Fourteenth Amendment does not apply to purely private discrimination. See The Civil Rights Cases, 109 U.S. 3 (1883). Thus, people are free to enter into and voluntarily abide by racially restrictive covenants. Nevertheless, the Court has long held that the actions of state courts and judicial officers are state actions within the meaning of the Fourteenth Amendment. See Labor v. Swing, 312 U.S. 321 (1941). Improper state action does not only occur when a court practices unfair procedures. A court is also a state actor when it enforces a substantive rule that violates individual rights under the Fourteenth Amendment. In this case, state court enforcement of the restrictive covenants against the Shelleys would deny them equal protection in the exercise of their property rights. States may not "ma[k]e available...the full coercive power of government" to allow private individuals to deny the Shelleys' rights on the basis of race. The highest courts of Missouri and Michigan gave effect to these discriminatory provisions on the basis of state common law. There was state action here, and judicial enforcement of the racially restrictive covenants violated the Equal Protection Clause. The rulings of the state courts are reversed.

Reynolds v Sims

ROL: The Equal Protection Clause requires the seats in a bicameral state legislature to be apportioned on a population basis that equally weights one vote for every one person residing in a state legislative district. FACTS: In 1961, Sims and other resident voters in Jefferson County, Alabama (plaintiffs) brought suit against Reynolds and the State of Alabama (defendants) in federal district court alleging that the last apportionment of the Alabama legislature was based on the 1900 federal census, despite the Alabama Constitution's requirement that the legislature be reapportioned every ten years. Sims asserted that since the population growth in the state from 1900 to 1960 had been uneven, Jefferson and other counties had become victims of serious discrimination regarding the allocation of legislative representation. Sims argued that the legislature's failure to reapportion itself constituted a denial of "equal suffrage in free and equal elections," as well as a denial of the equal protection of the laws in violation of the Alabama Constitution and the Fourteenth Amendment to the Constitution. The district court held that the inequalities in the Alabama legislature violated the Equal Protection Clause of the Fourteenth Amendment, and Reynolds appealed to the United States Supreme Court. ISSUE: Does Alabama's failure to reapportion itself every ten years and the resulting inequalities of legislative representation among counties throughout the state violate the Equal Protection Clause of the Fourteenth Amendment? HOLDING AND REASONING: Yes. The U.S. Constitution protects the fundamental right of all qualified citizens to vote in both state and federal elections. Any restrictions on that right are subject to strict scrutiny. The interests of individual citizens are represented by legislators, and the right to elect legislators in a free and unimpaired fashion is a foundation of the American political system. The purpose of dividing citizens into different voting districts and prohibiting them from voting elsewhere is to ensure that an individual does not vote multiple times for elected representatives. However, just as this scenario is constitutionally impermissible, a state legislative districting scheme that apportions the same number of representatives to unequal numbers of constituents is equally offensive to the Constitution. The practical effect of overweighting and overvaluing the votes of citizens living in one district is a dilution and undervaluation of votes of those living in other districts. Weighting votes on the basis of where a citizen resides is unjustifiable regardless of any purported state interests. Since the achievement of fair and effective representation for all citizens is the basic aim of legislative apportionment, the Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators. Seats in both houses of a bicameral state legislature must be apportioned on a population basis that assigns one vote to every person residing in a legislative district. The Alabama system is unconstitutional and the decision of the district court is affirmed CONCURRENCE: The majority reaches the correct result, but the majority goes further than needed and articulates an entire "equal population" principle for the governance of state legislative apportionments. The majority could have properly resolved the case by simply holding that Alabama engaged in invidious discrimination against some voters in violation of the Equal Protection Clause. CONCURRENCE/DISSENT: The district court correctly found that sixty years of legislative inaction by the Alabama legislature resulted in a completely irrational legislative apportionment plan. In light of this finding, it is proper to permit Alabama to devise a new system of legislative apportionment consistent with the Constitution. DISSENT: The majority holds that the Equal Protection Clause requires every state to structure its legislature so that all the members of each house represent substantially the same number of people. Despite the potential soundness of this principle as a political ideology, there is no way to demonstrate that the Fourteenth Amendment imposes this political requirement on states. As such, the Court is unauthorized to require this of states. Upon careful study of the purposes of the Fourteenth Amendment, the Equal Protection Clause was never intended to inhibit states from choosing any democratic method they please for the apportionment of their legislatures.

Wisconsin v Mitchell

ROL: The First Amendment permits states to enact statutes imposing stricter penalties on defendants who choose victims based on their membership in a protected class, such as race. FACTS: Mitchell (defendant) was a young black man who, along with a group of friends, beat up a white boy in Wisconsin (plaintiff). Mitchell instigated the attack after viewing a movie in which a white man beat up a black boy, asking his friends, "Do you all feel hyped up to move on some white people?" Mitchell was convicted of aggravated battery. The trial court increased his sentence under a Wisconsin "hate crimes" statute, which permitted penalty enhancements for defendants who selected victims based on their race. Mitchell argued that the statute was unconstitutional under the First Amendment, because it punished the motives behind the attack. The United States Supreme Court considered the statute's constitutionality. ISSUE: Does a state statute that enhances penalties for defendants who choose victims based on their membership in a protected class, such as race, violate the First Amendment's Free Speech Clause? HOLDING AND REASONING: No. The First Amendment permits states to enact statutes imposing stricter penalties on defendants who choose victims based on their membership in a protected class, such as race. While Mitchell argues that Wisconsin's hate crimes statute is unconstitutional, because it punishes motive, this Court has held in prior cases that federal and state antidiscrimination laws may address discriminatory motives as long as the targeted conduct is not protected speech under the First Amendment. This case is distinguishable from R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377 (1992), in which the Court struck down a hate crimes statute. In that case, the statute prohibited certain "fighting words," i.e., words containing "messages of 'bias-motivated' hatred." The Court determined that this prohibition constituted a content-based regulation and therefore violated the First Amendment. The statute at issue here, however, does not expressly target protected speech. Wisconsin determined that crimes motivated by racial bias deserve enhanced penalties, because those crimes are more harmful to the victims and society at large. This is a sufficient explanation for penalty enhancements and does not constitute a content-based regulation. Therefore, the penalty-enhancement statute does not violate the First Amendment and is upheld.

Marsh v Alabama

ROL: The First and Fourteenth Amendment protections of speech and religion still apply to individuals when operating in a privately-owned town if the town is open to the public and used for public purposes. FACTS: The town of Chickasaw, Alabama was owned by the Gulf Shipbuilding Company (the Company), a private corporation. With the exception of its private ownership, the town operated as any other and was closely bordered by and virtually indistinguishable from surrounding municipalities. Marsh (defendant) was a Jehovah's Witness who stood on a Chickasaw sidewalk owned by the Company and proceeded to distribute religious literature. She was told she could not distribute literature without a permit and that no permit would be issued to her. When she protested, she was arrested and charged with violating Alabama (plaintiff) state law. She argued that her activities were protected under the First and Fourteenth Amendments, but her argument was rejected and she was convicted. Marsh appealed to the United States Supreme Court. ISSUE: May a privately-owned town deny traditional First and Fourteenth Amendment protections of speech and religion to individuals? HOLDING AND REASONING: No. If Marsh had actually been on the public sidewalk of a municipality, her conviction would certainly have been reversed because states may not completely prohibit the distribution of religious literature in public areas under the First and Fourteenth Amendments. However, in the present case Alabama contends that the Company's ownership of the town gave it certain property interests which allowed it to control the activities of its inhabitants. Regardless of whether a corporation or a municipality owns the town, the public it allows in has an identical interest in the town's functionality and the freedom of communication within its borders. Alabama cannot suspend people's First and Fourteenth Amendment rights while they are located in the town because the Company has opened up the town to the public, and many residents from other surrounding areas frequently use the town for commercial purposes. In balancing the interests of the Company as property owners, with the interests of the people in freedom of press and religion, the latter are more important. Alabama acted unconstitutionally in assigning criminal sanctions to Marsh, and the decision of the lower court is reversed. CONCURRENCE: The majority opinion states that the Commerce Clause might provide useful guidance for resolving the issues involved in the case. However, it is not useful or necessary to look to the Commerce Clause when deciding a First Amendment issue. The text of the First and Fourteenth Amendments are sufficient for the majority to rely on in its reasoning. DISSENT: The majority does not give proper weight to the property interests of the Gulf Shipbuilding Company at stake in the case. Certain constitutional limitations already exist regarding the time, place, and manner of the exercise of religion, speech, and press. These limitations suggest that the freedoms outlined in the First and Fourteenth Amendments are not absolute, but can be reasonably balanced against other interests. Property rights are also highly protected in the Constitution, and the majority should not have protected Marsh's activity of trespassing on the company's property just because she was trespassing in the name of freedom of speech or religion.

Flagg Brothers v Brooks

ROL: The Fourteenth Amendment's due process requirements apply only to actions fairly attributable to the state. FACTS: After Brooks (plaintiff) was evicted from her home, the city arranged for her belongings to be stored in a warehouse owned by Flagg Brothers, Inc. (defendant). There was a dispute over charges between the parties, and Flagg Brothers threatened to sell Brooks' belongings. The New York Uniform Commercial Code (UCC) authorizes a warehouse owner to sell goods in his possession. Brooks brought a class action, claiming that selling her goods without a hearing would violate due process. ISSUE: May a plaintiff bring a cause of action for violation of the Fourteenth Amendment's Due Process Clause based on the actions of a private party? HOLDING AND REASONING: No. A plaintiff may not bring a cause of action for a violation of the Fourteenth Amendment's Due Process Clause based on the actions of a private party. The Fourteenth Amendment's due process requirements apply only to actions that are fairly attributable to the state. Brooks first argues that the Flagg Brothers' proposed sale is fairly attributable to the state because the resolution of private disputes is exclusively a state function, which New York has delegated to the Flagg Brothers under the UCC. To the contrary, the proposed sale under the UCC is not the exclusive method for resolving a private dispute such as this. Brooks could have requested that Flagg Brothers waive the right to sell her stored goods, sought replevin of those goods, or brought a damages suit against Flagg Brothers for violations of the UCC. Brooks also argues that the Flagg Brothers' proposed action is fairly attributable to the state because the state has authorized the action by law. However, a state's authorization of a private action does not convert the private action into a state action. In addition, the law at issue here does not require a sale of the goods being stored, but simply sets out certain conditions under which the courts will not interfere with such a sale. This refusal to act is the same as a statute of limitations that declines to provide a remedy after a certain amount of time has passed. Because the Flagg Brothers' proposed sale cannot be fairly attributed to the state, the lower court's judgment is reversed. DISSENT: The majority's decision would permit states to pass laws permitting a warehouseman to sell stored goods in excess of the amount of debt owed to him, or permitting a private party to obtain and sell the property of his weaker neighbor, because those actions could be characterized as purely private actions, that are permitted but not compelled, involving an area that is not exclusively reserved to the state. The majority's holding that the state has not delegated an exclusively state function is inconsistent with this Court's prior case law analyzing the constitutionality under the Due Process Clause of state statutes regulating the debtor creditor relationship. Those previous cases have recognized the role of the states in defining and controlling the debtor creditor relationship. In Fuentes v. Shevin, 407 U.S 67 (1972), this Court reviewed a state statute that gave away the state power to repossess property to a private party, similar to the way in which the statute at issue here gives the state's power to conduct judicially binding sales to private warehouse operators. It is the role of the state to control nonconsensual deprivations of property, which in turn must be subject to the restrictions of the Due Process Clause.

City of Cleburne, Texas v. Cleburne Living Center, Inc. (1985)

ROL: The mentally disabled are not a quasi-suspect class and thus any legislative regulations affecting their rights are subject to rational basis review and not intermediate scrutiny. FACTS: In 1980, the Cleburne Living Center (Center) (plaintiff) filed an application for a special use permit with the City of Cleburne, Texas (City) (defendant). The Center sought a permit to build a residential facility for mentally disabled men and women. The facility would house up to thirteen persons, who would be supervised at all times. The City denied the permit application, and the Center brought suit in federal district court challenging the denial. The district court upheld the denial. The court of appeals reversed, finding that the mentally disabled were a quasi-suspect class of persons and thus intermediate scrutiny should be applied to the City's denial of the permit application. It invalidated the denial as not furthering an important government purpose. The United States Supreme Court granted certiorari. ISSUE: Whether a city's denial of a permit for a group home for mentally disabled persons violated the Equal Protection Clause of the Fourteenth Amendment, and whether the review of such a denial required intermediate scrutiny. HOLDING AND REASONING: Yes and no. The court of appeals erred in applying heightened scrutiny to the denial of the permit application. The mentally disabled are not a quasi-suspect class, and thus rational basis review of the City's decision is appropriate. Firstly, it is undeniable that mentally disabled persons require special care for functioning in the everyday world, so legislative judgments are likely to be rational and should not be scrutinized more closely. Secondly, on a national scale, federal lawmakers have shown great appreciation for the plight of the mentally disabled and enacted significant legislation prohibiting discrimination against them. Applying heightened scrutiny and requiring the legislature to show that these efforts are substantially related to an important governmental purpose might actually discourage the legislature from continuing to act to protect the mentally disabled. Thirdly, the existence of so many regulations make it clear that the mentally disabled are not politically powerless, but have already been able to attract the attention of lawmakers to provide for their rights. Fourthly, finding the mentally disabled a quasi-suspect class would pose problems in the future for classifying other groups as such that possibly share some but not all characteristics with mentally disabled persons as a group. For these reasons, rational basis review is appropriate for any legislative determinations affecting mentally disabled persons. The City does not require a special use permit for apartment buildings, multiple dwellings, boarding and lodging houses, fraternity or sorority houses, dormitories, hotels, hospitals, sanitariums, nursing homes for convalescents or the elderly, private clubs, and fraternal orders. In contrast, the City requires a special use permit for a group home for mentally disabled persons. This difference in treatment is irrelevant because the Center's proposed home would not threaten legitimate interests of the City in a way that other permitted uses would not. The City's arguments that the home would create negative attitudes about the mentally disabled in the community, or that it would elicit harassment of residents from children in a nearby school, are rejected as this concern is speculative and thus irrelevant. The City's concern that the home is located on a floodplain is not sufficient for denying the permit for the home because other similar buildings are located there. Finally, the City's concerns about the size of the home and the amount of residents are also rejected because if the residents were not mentally disabled, the city would have no objections. Thus, there is no rational basis for the City to conclude the group home would impact its legitimate interests, and therefore the denial of the special use permit violates the Equal Protection Clause. The decision of the court of appeals is reversed. CONCURRENCE: Equal Protection Clause jurisprudence more accurately reflects a continuum of judicial responses ranging from strict scrutiny to rational basis review, rather than a system of three clearly-defined standards. The complicated facts of individual cases do not fit neatly into the existing standards, and a "rational basis" for review is preferential. The rational basis test, when properly and thoughtfully applied, is adequate for deciding all cases implicating the rights of various classes of persons. Heightened scrutiny is unnecessary. CONCURRENCE/DISSENT: Mental retardation should not be used as a proxy for invalidating the rights of an entire group of persons. Mental disabilities affect different people in different ways, and it is unfair for governments to make regulations which discriminate against all mentally disabled individuals. The majority is correct in saying that the Equal Protection Clause requires attention to the capacities and needs of mentally disabled persons as individuals. However, the majority's determination that the case can be sufficiently decided with rational basis review, and denying that any action by the city requires heightened scrutiny, is incorrect. Heightened scrutiny should have been applied to the case, and there should have been a better job in investigating and articulating the facts of the city's actions to justify this result. The majority erred in applying rational basis review in light of the present facts which suggest the need for heightened scrutiny.

Obergefell v. Hodges

ROL: Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, states must issue marriage licenses and recognize lawful out-of-state marriages for same-sex couples. FACTS: In response to some states legalizing same-sex marriage, various states enacted laws and constitutional amendments defining marriage as between one man and one woman. When James Obergefell's (plaintiff) partner, John Arthur, became terminally ill, the pair decided to marry. The couple wed in Maryland, where same-sex marriage was legal. After Arthur died, however, the couple's home state of Ohio refused to list Obergefell as Arthur's surviving spouse on the death certificate. April DeBoer and Jayne Rowse (plaintiffs), a same-sex couple living in Michigan, adopted three children. Because of a state ban on adoptions by same-sex couples, DeBoer and Rowse could not both be legal parents to their children. Ipje DeKoe and Thomas Kostura (plaintiffs) got married in New York before DeKoe was deployed to Afghanistan with the army reserve. They later moved to Tennessee, which refuses to recognize the union. These and similarly situated plaintiffs separately sued state officials (defendants) charged with enforcing state marriage laws in federal courts in Michigan, Kentucky, Ohio, and Tennessee, alleging violations of their rights under the Fourteenth Amendment. The district courts found for the plaintiffs in each instance, but the state officials appealed to United States Court of Appeals for the Sixth Circuit. The court of appeals consolidated the cases and reversed, holding that states were under no constitutional duty to license or recognize same-sex marriages. The plaintiffs petitioned the United States Supreme Court for certiorari, which was granted. ISSUE: Must states issue marriage licenses and recognize lawful out-of-state marriages for same-sex couples? HOLDING AND REASONING: Yes. Same-sex couples have a constitutional right to marry protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Marriage is a fundamental right protected by the Due Process Clause. For example, in Loving v. Virginia, 388 U.S. 1 (1967), the Court struck down anti-miscegenation laws that interfered with the right to marry. Similarly, in Zablocki v. Redhail, 434 U.S. 374 (1978), the Court invalidated state laws limiting the ability of individuals with unpaid child support to marry. Ultimately, the four principles underpinning the protection of the right to marry apply equally to opposite and same-sex couples: (1) the right to choose whether and whom to marry is "inherent in the concept of individual autonomy"; (2) the right serves relationships that are equal in importance to all who enter them; (3) assuring the right to marry protects children and families, which implicates the myriad of rights related to procreation and childrearing; and (4) lastly, marriage is the very "keystone of our social order" and foundation of the family unit. Though marriage has historically been viewed as between opposite-sex couples, the institution has changed over time, including through the changing legal status of women. Similarly, while same-sex relationships were once forbidden, in Lawrence v. Texas, 539 U.S. 558 (2003), the Court held that same-sex couples had an equal right to intimate associations. Refusing to allow same-sex couples to marry denies them a myriad of legal rights, including those related to taxation, insurance benefits, intestate succession, spousal evidentiary privileges, child custody and support, etc. In this instance, the liberty interest protected by due process intersects with the right to equal protection, and same-sex marriage bans violate both. Therefore, states must issue marriage licenses to same-sex couples. Further, states must recognize lawful out-of-state marriages between same-sex couples. All contrary laws are struck down. The court of appeals is reversed. DISSENT: An unelected committee of nine lawyers has stopped the debate and the democratic process on this issue. There is no question that those who ratified the Fourteenth Amendment could not possibly have intended for it to eliminate the traditional and, at least at that time, universal understanding of marriage. The justices are selected for their skill as lawyers, not policymakers, and in are in no way representative of the rest of the country. DISSENT: Although there are strong arguments for the inherent fairness in recognizing same-sex marriages, this should be left to individual states to decide. The Constitution does not define marriage, and states should be free to define it as they will, including maintaining the traditional definition of marriage recognized throughout history. The Court has usurped the right of the people to make such a decision through the democratic process and denied same-sex marriage the legitimacy that comes with that. Marriage developed as a means of ensuring children were cared for by two parents. The Court has warned of the dangers of finding new, implied fundamental rights as a matter of substantive due process, as the Court fatefully did in Dred Scott v. Sandford, 19 How. 393 (1857) and Lochner v. New York, 198 U.S. 45 (1905). The Court is acting as a super-legislature and substituting its own judgment for the law. Further, if same-sex marriage is valid, there is no good argument why plural marriage should not be. Finally, the Court fails to conduct the traditional Equal Protection Clause analysis before declaring the clause to be violated. Teaches that gays and lesbians are unequal in important respects Withholding marriage status from same sex couples imposes a stigma and an injury on the couples and their children Is he saying that denial violates equal protection or substantive due process independently? (both would suffice to invalidate) Or is he saying that it takes a combination of due process and equal protection together to invalidate this law Like Yoder: free exercise itself would not produce this result, but when you look at substantive due process rights (to raise your children), then together they cause the court to overturn Wisconsin's insistence on forcing the kids to attend school beyond the 8th grade Dissent - Roberts is the most substantive We're dealing with a fundamental tension that goes way back There are two ways of considering the scope of the exercise of the court's power Recognizing that the supreme court is a counter-majorian institution (it's unelected officials overturning unconstitutional laws and the will of the majority) Roberts focuses on the first prong and says this is a place for deference - the democratic process is giving robust consideration to this issue We should defer Echoes Scalia's dissent in VMI

Zelman v Simmons-Harris

ROL: Under the Establishment Clause, a state may enact an educational program that provides indirect financial assistance to religious schools if the program truly provides individuals the opportunity to choose even if the selection is predominately filled with private schools with religious affiliations. FACTS: The state of Ohio established the Pilot Project Scholarship Program to provide educational choices to families with children residing in the Cleveland City School District. The program was enacted to help combat serious problems with Cleveland's public schools. The program provides tuition aid for students in kindergarten through third grade, expanding each year through eighth grade, to attend a participating public or private school of their parent's choosing. Additionally, the program provides tutorial aid for students who choose to remain enrolled in public school. The tuition aspect of the program permits any private school, whether religious or nonreligious, to participate and accept program students. Private schools must not discriminate against students or foster unlawful behavior towards others on the basis of race, religion, or ethnicity. Program aid is assigned to students and families primarily on the basis of need. During the 1999-2000 school year 82% of participating private schools were religiously affiliated. None of the public schools in Cleveland elected to participate. Simmons-Harris (plaintiff) and a group of Ohio taxpayers brought suit against Zelman (defendant), the state official responsible for administering the program, in federal district court on the grounds that the program violated the Establishment Clause of the First Amendment. The district court granted summary judgment to Simmons-Harris, and the court of appeals affirmed. The United States Supreme Court granted certiorari. ISSUE: Whether a state program providing tuition and tutorial assistance to students who choose to attend participating private or public schools (when most private schools are religiously affiliated) violates the Establishment Clause of the First Amendment. HOLDING AND REASONING: No. The Establishment Clause prevents a state from enacting laws that have the purpose or effect of advancing or inhibiting religion. The Ohio program was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system. Thus, while the purpose is valid, it is necessary to consider whether the program has impermissible effects. While direct government aid to religious schools is often unconstitutional, "private choice" programs have consistently been upheld as constitutional. Thus, when a neutral government aid flows to religious institutions only because of a truly private, independent choice of an individual (such as a student's use of state scholarship money at a religious school), there is no Establishment Clause violation. The Ohio program is neutral in all respects towards religion, and thus there is no financial incentive for parents to choose private over public schools. The Program confers educational assistance directly to a broad class of individuals defined without reference to religion and on neutral terms. It permits the participation of all schools within the district, regardless of whether they are religious or secular. Thus, there is no evidence that the Program fails to provide genuine opportunities for parents to choose public over private schools for their children. The Program is neutral and permits the exercise of genuine choice among public and private, secular and religious schools. It does not violate the Establishment Clause and the decision of the court of appeals is reversed. CONCURRENCE: The majority reaches the correct result. However, the majority should have elaborated more on what is meant by an individual's ability to exercise "true private choice." All reasonable educational alternatives to religious schools that are available to parents must be considered. While the amount of unrestricted money provided to the religious schools is significant, the actual amount of public funds funneled to religious schools through the program is very small, when compared to funds the state will continue to provide to general schools. Additionally, the amount is very small in comparison to the amount of funds that federal, state, and local governments already provide religious institutions. Religious organizations receive significant tax exemptions, and individuals contributing to religious organizations receive additional tax exemptions. Against this background, the support that the Cleveland voucher program provides religious institutions is neither substantial nor atypical of existing government programs that provide aid to religious institutions. The majority's decision to uphold this program as constitutional does not depart significantly from prior Establishment Clause jurisprudence. The program is analyzed under the test of whether the program administers aid in a neutral fashion, and whether beneficiaries of indirect aid have a genuine choice among religious and nonreligious organizations when determining the organization to which they will direct that aid. The Ohio program satisfies both of these inquiries, and thus should be upheld as constitutional. CONCURRENCE: Education means emancipation. The only way to truly uplift poor children from a destructive, inner-city lifestyle is to provide them with a quality education. Cleveland enacts its voucher program to address an educational crisis in its public school system. The Establishment Clause should not be invoked to constrain a state's neutral efforts to provide greater educational opportunity for underprivileged minority students. The Fourteenth Amendment should not be invoked to use federal religious protections to invalidate neutral state initiatives. Doing so would convert the Fourteenth Amendment's guarantee of individual liberty into a prohibition on the exercise of educational choice. The Ohio program corrects an educational wrong, while refraining from forcing any individual to submit to religious indoctrination or education. The program simply gives parents a greater choice in educating their children—a choice which parents with greater financial means routinely exercise. It does not violate the Establishment Clause and should be upheld. DISSENT: The issue is whether a law that authorizes the use of public funds to pay for the indoctrination of thousands of grammar school children in particular religious faiths constitutes a "law respecting an establishment of religion" within the meaning of the First Amendment. In answering that question, the majority should have ignored three factual matters: (1) the severe educational crisis that confronts the Cleveland school district, (2) the wide range of choices that have been made available to students within the public school system, and (3) the voluntary character of the private choice to prefer a parochial education over an education in the public school system. The majority's decision to consider these factors is profoundly misguided. DISSENT: Although this case centers around an extremely difficult educational crisis in Cleveland's public school system, the Establishment Clause permits no excuses for unconstitutional laws that are enacted to respond to factual crises. The amount of state money provided to students attending religious schools under the program is significant as it funds almost the full amount of these students' tuition costs. The program disproportionately applies to religious schools, and directly assists in supporting their religious missions. While the majority chooses the correct legal standard to govern this case, it inappropriately applies that standard to the facts. The Ohio program, by disproportionately funding religious schools, disproportionately advances religion. It is thus unconstitutional. DISSENT: There is a significant need to protect religion from influence by the government. This is why the Establishment Clause was enacted, and the mere fact that the Ohio program involves "parental choice" cannot cure the constitutional defects present. Although it purports to be neutral, the program's requirement that religious schools accept students of all religions actual burdens the free exercise of religion. It has the practical effects of combining students of different, conflicting religions in a manner that risks promoting religious and social strife. The voucher program risks creating a form of religiously based conflict potentially harmful to the America's social fabric. It's okay because the money got there through private choices and the program is neutral on its face The tuition program is part of a broader project of helping schools in Cleveland (kind of accomodationist like Lynch v Donnelly) Implied premise: as far as the court is concerned, Ohio would have enacted the exact same program even if it turned out that every private school in Ohio was religious Dissent - this is an erosion of the wall that the church has built between church and state It would not be hard to make a program that survives the establishment clause review while still letting money help religious institutions Majority would probably say: so what? There was never really a wall in the first place When we want to ask what aid the government can give to religious institutions, they were just trying to make sure that the government didn't favor particular religions But on the other had if you just have a general program to advance education and it just turns out that a lot of that money ends up going to support education as its provided at religious schools, that's not the type of outcome/concern that drove the adoption of the establishment clause in the first place

Boy Scouts of America v Dale

ROL: Under the First Amendment's protection of the freedom of expressive association, a state may not prohibit a private organization from barring homosexuals from membership. FACTS: The Boy Scouts of America (Scouts) (defendant) is a private, not-for-profit organization engaged in instilling its system of values in young people. The Scouts assert that homosexual conduct is inconsistent with the values it seeks to instill. James Dale (plaintiff) is a former Eagle Scout whose adult membership with the Scouts was revoked and status as assistant scoutmaster was terminated when the Scouts learned that he is a homosexual man and gay rights activist. Dale brought suit against the Boy Scouts in New Jersey Superior Court alleging that the Scouts had violated New Jersey's public accommodations statute and its common law by revoking Dale's membership solely because of his homosexuality. The state court agreed, and the New Jersey Supreme Court affirmed. The United States Supreme Court granted certiorari. ISSUE: Whether the application of the New Jersey public accommodations law violates the Boy Scouts' First Amendment right of freedom of expressive association to bar homosexuals from membership. HOLDING AND REASONING: Yes. The forced inclusion of an unwanted person in a group infringes upon the group's freedom of expressive association if the presence of that person significantly affects the group's ability to advocate public or private viewpoints. However, the freedom of expressive association is not absolute. It may be overridden by "regulations adopted to serve compelling state interests, unrelated to the suppression of ideas that cannot be achieved through means significantly less restrictive of associational freedoms." The Scouts is a private, nonprofit organization that seeks to instill ethical values in young people. It is indisputable that an association that seeks to transmit such a system of values engages in expressive activity. Thus, it is necessary to determine whether the forced inclusion of Dale as an adult member and assistant scoutmaster in the Scouts would significantly affect the organization's ability to advocate public or private viewpoints. The Scouts' oath and law specifically teach young people to be "morally straight" and "clean." The organization argues that the practice of homosexuality is at odds with these goals. This sincere viewpoint is entitled to deference under the First Amendment, regardless of judicial opinion on the issue. Thus, it is necessary to determine whether Dale's presence would significantly burden the Scouts' desire to not promote homosexual conduct. Just as considerable deference is given to an association's assertions regarding the nature of its expression, it is also important to give deference to an association's view of what would impair its expression. Dale's presence in the Scouts would, at the very least, force the organization to send a message, both to youth members and the world, that the Scouts accepts homosexual conduct as a legitimate form of behavior. The application of the New Jersey public accommodations law to require the Scouts to accept Dale runs afoul of the Scouts' freedom of expressive association protected by the First Amendment. A state may not compel an organization to accept members where such acceptance would significantly depart from the organization's expressive message. The decision of the state courts is reversed. DISSENT: New Jersey prides itself on judging each individual by his or her merits, and on leading the way in the fight to eliminate all forms of unlawful discrimination from society. As such, it was the intent of the New Jersey legislature in passing its public accommodations law prohibiting discrimination on the basis of sexual orientation to give the broadest possible scope to that statute. The issue, then, becomes whether that expansive statutory construction infringes the federal constitutional rights of the Scouts. In seeking to teach young people to be "morally straight" and "clean," the Scouts Handbook explains the need for young people to avoid unethical treatment of people, foul and harmful language, etc. Nothing in the Handbook specifically states that young people should avoid homosexual conduct. In fact, the Handbook specifically requires scouts to receive all training in sexual issues from outside sources including their parents, religious instructors, and doctors. It is difficult to gather from these statements that a strong stance against homosexuality is essential to the expressive activity of the Scouts or that the organization has the shared goal of disapproving of homosexual conduct. Thus, in light of New Jersey's significant interests in protecting rights of homosexuals, the state court's order requiring the inclusion of Dale in the Scouts should have been affirmed. Dale was like there are heteros who love gays? The Court says that a group can tolerate dissent within its ranks without being hypocritical The Dissent also points out that he's not wearing a shirt or waving a banner that says that he's gay How is that different from Jaycee? The type of anti-discrimination law Jaycee - discrimination in public places by gender Boy scouts - sexual orientation was not a suspect or quasi-suspect classification (meant that when the state chose to bar sexual orientation discrimination, that interest is not as weighty as the equal protection clause to ban gender discrimination) Suspect classifications are subject to strict scrutiny The difference in the nature of the organizations Jaycee - commercial; meant to promote business skills and business opportunities Boy scouts - more expressive Difference in contention Jaycees - they said that women and men generally have different perspectives, and so women shouldn't be able to vote because they would transform the message Boy scouts - we don't want to say that homosexuality is ok; letting Dale in will symbolically detract from the message that they are trying to portray The closer the organization gets to the political/religious spectrum, the more the court will defer to what they say they stand for

Greer v Spock

ROL: Under the First Amendment, a military base controlled by the federal government may constitutionally exclude political expression through public meetings and the distribution of political literature on the base. FACTS: The Fort Dix Military Reservation is a United States Army post under the exclusive control of the federal government. Under Fort Dix Reg. 210-26, speeches and demonstrations of a partisan political nature are banned on Fort Dix. Spock and Hobson (plaintiffs) were candidates of the People's Party for the offices of President and Vice President of the United States, and Jenness and Pulley (plaintiffs) were candidates of the Socialist Workers Party for the same offices. In 1972, Spock, Hobson, Jenness, and Pulley (candidates) wrote a joint letter to Major General Bert David, commanding officer of Fort Dix, informing him of their intention to enter the reservation for the purpose of distributing campaign literature and holding a meeting to discuss election issues with service personnel and their dependents. Relying on Reg. 210-26, General David rejected this request. The candidates brought suit in federal district court against Greer and other Fort Dix personnel (defendants) on the ground that this denial of entry violated their First Amendment rights. The district court entered a permanent injunction prohibiting interference with the candidates' exercise of speech, and the court of appeals affirmed. The United States Supreme Court granted certiorari. ISSUE: Whether the denial by military officials of a request by political candidates to conduct political discussions and distribute literature on a military base violates the First Amendment. HOLDING AND REASONING: No. The guarantees of the First Amendment do not authorize people to propagandize or protest whenever, however, or wherever they please. One of the main purposes for the Constitution is establishing a common defense and the Court has previously recognized on many occasions the special constitutional function of the military. The military's function in the United States is both explicit and indispensable. It is primarily the business of a military installation like Fort Dix to train soldiers, rather than provide a public forum. Thus, the Fort Dix regulation prohibiting the discussion and distribution of political expression on its base is constitutional. The decision of the court of appeals is reversed. DISSENT: The majority's opinion impermissible enacts an absolute restriction on political speech on military bases. The First Amendment does not evaporate when interests in national defense, military necessity, or domestic security are implicated. In previous cases, the Court has always inquired as to whether the exercise of First Amendment rights must be circumscribed in order to secure those interests. Here, the training of soldiers does not as a practical matter require exclusion of those who would publicly express their views from streets and theater parking lots open to the general public. Additionally, the readiness to fight does not require such exclusion of expression unless the streets and parking lots are battlefields themselves. The Fort Dix regulation should be struck down as an unconstitutional restriction on speech.

Board of Regents of the University of Wisconsin System v Southworth

ROL: Under the First Amendment, public universities may constitutionally subsidize campus groups by imposing a mandatory student fee structure, even if some students find some campus groups objectionable, as long as the universities remain viewpoint-neutral in their allocation of funding support. FACTS: In 1996, Southworth, plaintiff, and two other law students at the University of Wisconsin brought suit against the Board of Regents (defendant) in federal district court challenging the constitutionality of the University's mandatory student fee system. Southworth argued that it was unconstitutional for portions of their student fee to fund political or ideological activities with which they disagreed. Particularly, Southworth were concerned about the funding of multi-cultural groups, environmental groups, and lesbian, gay, bisexual, and transgender groups. The district court granted summary judgment for Southworth. The court of appeals denied review, and the United States Supreme Court granted certiorari. ISSUE: Whether, under the First Amendment, public universities may subsidize campus groups by means of a mandatory student activity fee without violating the First Amendment rights of students who find some campus groups objectionable. HOLDING AND REASONING: Yes. It is inevitable that the government may adopt and pursue some policies and programs within its constitutional powers that nevertheless are contrary to the profound beliefs and sincere convictions of some of its citizens. As a general rule, the government may support valid programs and policies by taxes or other exactions that are binding even on protesting parties. Here, the government seeks to use such an exaction to fund not its own programs and policies, but rather activities created by the initiative of students. The University of Wisconsin collects the mandatory activity fee for the sole purpose of facilitating the free and open exchange of ideas by and among its students. The University of Wisconsin seeks to foster unlimited speech, regardless of whether it is germane to the university's purposes. The University of Wisconsin may constitutionally impose a mandatory fee to sustain open dialogue about philosophical, religious, scientific, social, and political subjects on campus. However, the University of Wisconsin must also provide some protection for its students' First Amendment interests. The proper standard for this protection is the requirement of viewpoint neutrality in the allocation of funding support. On the current record, it is unclear as to whether the University's fee requirement is imposed with viewpoint neutrality. Thus, the decision of the district court is reversed and remanded for additional consideration of this issue. P says that to force them to pay money to support these associations is to violate right to refrain from speaking because by paying money to support their speech, we effectively are being forced to speak. Not a farfetched argument because the Court had developed a certain amount of doctrine in this area, esp. regarding Bar dues (don't have to contribute money that is not germane to the Bar like childhood education but can due to the bar regulation committee). Court rejects the argument because the it is unworkable - university has a wide range of topics and everything that goes on at a university is germane to the mission. Would contradict to have a court decide what is/isn't germane. Couple of observations - there are limits, for example - funds are scarce and when it comes to student political organizations and we are not going to fund mainstream groups because fringe groups spur more conversation like the Student Anarchy, will really spark debate. One defect that will be fatal - not neutral, court is extremely consistent on neutrality.

R.A.V v City of Paul

ROL: Under the First Amendment, states may not regulate categories of unprotected speech, such as "fighting words," on the basis of content. FACTS: R.A.V. (defendant), a juvenile, and several other teenagers burned a wooden cross on the lawn of a home owned by a black family. R.A.V. was arrested for violating the St. Paul Bias Motivated Crime Ordinance (the Ordinance), enacted by the City of St. Paul, Minnesota (plaintiff) to promote human rights for groups that have historically been subject to discrimination. The Ordinance prohibited the placement of hateful symbols, including burning crosses, "which one knows or has reasonable grounds to know arouse . . . anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." R.A.V. moved to dismiss the charge on the grounds that the Ordinance was facially invalid under the First Amendment. Specifically, R.A.V. argued the Ordinance was an unconstitutionally overbroad content-based regulation of speech. The trial court granted the motion. The Minnesota Supreme Court reversed, holding that the language of the statute, "arouses anger, alarm or resentment," limited the regulation to "fighting words," which are not protected speech. The United States Supreme Court granted certiorari. ISSUE: Whether a state ordinance prohibiting expressions of hateful speech violates the First Amendment. HOLDING AND REASONING: Yes. A statute that regulates the content of speech on its face will only survive a constitutional challenge if it is necessary to serve a compelling state interest. See Burson v. Freeman, 504 U.S. 191 (1992). This means the statute will be struck down if there is a content-neutral alternative that satisfies the state's objective. Under the First Amendment, the government is generally barred from regulating the ideas expressed by speech or conduct. There are a number of traditional exceptions to this rule that allow the government to regulate speech with only "slight social value," such as obscenity, defamation, and "fighting words." Nevertheless, the government may not use these exceptions to create content-based regulations. For example, a regulation could not forbid only obscenity that criticized the government. This is similar to the framework for time, place, and manner restrictions on speech. In this case, the Court is bound by the Minnesota Supreme Court's interpretation that the statute regulates only "fighting words" within the meaning of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Chaplinsky defines "fighting words" as "conduct that itself inflicts injury or tends to incite immediate violence." Such language is not entirely without value but is not essential to the exposition of ideas. This implies that a state might not be permitted to regulate fighting words in all contexts. The constitutionality of such regulations ultimately depends on various elements of content expressed in the speech and the secondary effects stemming from that content. The Ordinance is facially unconstitutional despite its narrow construction by the Minnesota Supreme Court. The statute specifically applies to fighting words that provoke violence "on the basis of race, color, creed, religion, or gender." Under these terms, fighting words are permissible as long as they do not address one of the disfavored topics. This constitutes a prime example of impermissible content discrimination, and even viewpoint discrimination, under the First Amendment. Thus, there is no need to address whether the statute is overbroad. Despite the Court's general disagreement with R.A.V.'s actions, the Ordinance as written is unconstitutional. The decision of the Minnesota Supreme Court is reversed. CONCURRENCE: The majority is correct in reversing the judgment of the Minnesota Supreme Court. However, its reasoning is flawed. Relying on First Amendment jurisprudence, the Court could conclude that the Ordinance is fatally overbroad because it criminalizes expression protected by the First Amendment, as well as unprotected speech. It is well established that the First Amendment protects speech with even a small amount of value to society. The Court's all-or-nothing approach allows governments to regulate an entire category of unprotected speech, but not a subset. Thus, governments must "regulate for problems that do not exist." The Court should have analyzed the Ordinance under the strict-scrutiny framework. Even though the state has a compelling interest in preventing hate speech, the means it uses in the Ordinance are not narrowly tailored to achieve this end. Thus, the Court is correct in holding that the Ordinance is unconstitutional. CONCURRENCE: The majority's holding is improper because it abandons the categorical approach of analyzing First Amendment cases and seems "inevitably to relax the level of scrutiny applicable to content-based laws." This case may be regarded merely as "an aberration—a case where the Court manipulated doctrine to strike down an ordinance whose premise it opposed." The First Amendment is not compromised by permitting states to regulate conduct such as cross-burning and other hate speech, though there is substantial danger in taking away a city's ability to bar racially motivated fighting words. However, the majority is correct in striking down the Ordinance because it goes beyond the "fighting words" doctrine and criminalizes protected speech. CONCURRENCE: Activity that creates unique risks or causes unique harm may be specifically regulated or punished more severely than the same conduct in other contexts. Hate speech directed at someone over her race may be much more dangerous than the same speech related to her favorite sports team. Regulations of this type are neutral. The Ordinance is unconstitutionally overbroad, but the absolutist approach adopted by the Court and concurrences is improper. The Court departs from its categorical approach to speech regulation and looks instead for "elements" of speech that may be "proscrib[ed]." For example, the majority says "obscene antigovernment speech" can be regulated for obscenity but not the ideas it expresses. This ignores the fact that "obscene antigovernment speech" is an oxymoron. Selective regulations that do not prohibit an entire category of unprotected speech are commonplace and certainly not "presumptively invalid." Such regulations should be upheld if based on legitimate and neutral reasoning. The Ordinance is an evenhanded regulation of harmful expressive conduct, and if it were not overbroad it would be constitutional. St. Paul cannot pick and choose which fighting words that it's going to ban - if it was all fighting words (not just anger/alarm/resentment and race/gender) This is engaging in content discrimination, which makes the ordinance facially unconstitutional The court assumes that this is an ordinance aimed at fighting words concurrence - it makes no sense to do an all-or-nothing; the greater power includes the lesser power (it can ban all fighting words, so it can ban certain fighting words); the government should be able to regulate toxic fighting words, the same way they can regulate toxic chemicals scalia - we shouldn't' target subcategories of speech because they're disfavored by the majority; the government cannot ban only obscenity that is critical of the government; scalia said the evenness on the surface is a lie because in practice it will value one viewpoint over the other (anti-Catholic bigot says, "you catholic bastard" and he would be punished under this ordinance; but if the object of the bigotry responds "you red neck bastard," that person wouldn't be punished) does this mean that hate crimes (assaulting someone because they're white) is okay? No, because the words in hate crimes just go to motives The conduct was already going to be punished And a hate crime makes the crime sting more and the community more fearful

Employment Division, Department of Human Resources v Smith

ROL: Under the Free Exercise Clause of the First Amendment, a state may constitutionally refuse to carve out an exception from its generally applicable criminal laws for religious practices. FACTS: Oregon state law prohibits the knowing or intentional possession of a controlled substance unless that substance has been medicinally prescribed. Alfred Smith and Galen Black (plaintiffs) were fired from their jobs after they ingested peyote for sacramental purposes at a Native American Church service. When they applied for unemployment benefits with the Employment Division, Department of Human Resources of Oregon (EDDHR) (defendant), they were determined to be ineligible for benefits because they had been discharged for work-related misconduct. Smith and Black unsuccessfully challenged the denial in state court. However, on remand, the Oregon Supreme Court vacated its previous judgment and held that the denial of benefits violated the Free Exercise Clause of the First Amendment. The United States Supreme Court granted certiorari. ISSUE: Whether the Free Exercise Clause of the First Amendment permits the state of Oregon to criminalize religious practices that violate generally applicable laws. HOLDING AND REASONING: Yes. The Free Exercise Clause of the First Amendment protects the right of individuals to believe whatever they wish, but does not necessarily protect the right to act on those beliefs. Here, Smith and Black argue they should be granted an exemption from Oregon state criminal laws for their religious conduct involving the use of an illicit drug. However, an individual's religious beliefs have never been held to excuse him from compliance with an otherwise valid and neutral law prohibiting conduct that the State is free to regulate. The only decisions in which the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not just the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional provisions (such as the freedom of speech, association, etc.). This case does not present a hybrid situation. In the alternative, Smith and Black argue that even if an exemption from generally applicable criminal laws is not automatically extended to religious conduct, the claim for a religious exemption must at least be evaluated under the balancing test set forth in Sherbert v. Verner, 374 U.S. 398 (1963). Under this test, governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest. This test has almost never been used to invalidate government regulations outside the unemployment compensation arena, and has never been used to require exemptions from generally applicable criminal law. It is improper to require the government to show a compelling state interest when it seeks to abridge conduct that is central to an individual's religious practice, as doing so would require the government to make value judgments about the centrality of religious conduct. The state of Oregon may constitutionally make an exception to its drug laws for the religious use of peyote if it wishes to do so through the legislative process. However, it is not the role of the courts to create such legislative exceptions. The decision of the Oregon Supreme Court is reversed. CONCURRENCE: The majority's result is correct, but its holding dramatically departs from well-settled First Amendment jurisprudence. The majority adopts a categorical rule that the First Amendment is not offended if prohibiting the exercise of religion is merely the incidental effect of a generally applicable law. This rule, however, criminalizes conduct that is essential to an individual's act of worship. This, by definition, inhibits his free exercise of religion. The only way to ensure that the First Amendment's protection for the free exercise of religion is not overly burdened is to require the government to provide a compelling state interest whenever it seeks to regulate religious conduct. Oregon clearly has an overriding compelling state interest in regulating criminal drug use including the use of peyote, and the same result could be reached by holding a compelling state interest standard. DISSENT: Until the majority's holding, all cases involving questions about the constitutionality of a state statute that burdens the free exercise of religion have been resolved by determining whether the statute is justified by a compelling state interest that cannot be served by less restrictive means. There is no reason to depart from this analysis. Since Oregon has shown no evidence that the use of peyote for religious purposes produces harm, the state has not asserted a compelling purpose for its criminal statute and the statute should be held unconstitutional.

Perry Education Association v Perry Local Educations Association

ROL: Unlike public forums and limited public forums that require strict scrutiny, government regulations on non-public forums must only be reasonable and not suppress expression merely because public officials oppose the speaker's view. FACTS: Perry Education Association (PEA) (defendant) was elected as the exclusive bargaining representative for the teachers of the Metropolitan School District of Perry Township, Indiana. A collective-bargaining agreement with the Board of Education provided that only PEA would have access to the interschool mail system and teacher mailboxes in the Perry Township schools. As a result, a different union, Perry Local Educators' Association (PLEA) (plaintiff), was denied access. PLEA brought suit in federal district court on the grounds that the denial of access violated the First and Fourteenth Amendments. The district court denied relief for PLEA, but the court of appeals reversed. PEA appealed to the United States Supreme Court. ISSUE: Is strict scrutiny appropriate for non-public forums under the First and Fourteenth Amendments? HOLDING AND REASONING: No. The existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue. In public places that have historically been devoted to assembly and public debate, the right of the government to limit expressive activity is greatly limited. For example, public streets and parks are quintessential public forums where the government may not prohibit all communicative activity. In these instances, the government may only enforce a content-based exclusion if it shows that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. Additionally, the state may enforce regulations of time, place, and manner of expression that are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. Limited public forums consist of public property that the state has opened for use by the public as a place for expressive activity. Although a state is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards that apply in a traditional public forum. Non-public forums are public property that is not by tradition or designation a forum for public communication. The government may enact reasonable time, place, and manner restrictions on non-public forums. Additionally, the state may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view. The school mail facilities fall within this third category of non-public forums. The internal mail system is not held open to the general public, and the school district has no constitutional obligation to let any organization use the school mailboxes. Thus, the decision to exclude access by PLEA does not violate the First and Fourteenth Amendments, and the decision of the court of appeals is reversed. PLEA is arguing - inherently will have dif viewpoints from PEA, just as R and D. Arguing that this really does amount to viewpoint discrimination. Court not buying that. PEA is the official union, PLEA is not the official union. Makes sense. On the surface, it is a rational explanation. If you apply the stricter standard - if characterized as traditional or designated, differential access would be invalidated. Still has to be narrowly tailored. PEA gets pretty much unlimited access to these teacher mailboxes. Doesn't have to be official visits. Court says they never intended to open it up to expressive activity (and thus enter the second type of public forum) Because they didn't open it up to some groups Kind of self-justifying (bootstrapping) Third type of public forum (aka non-public forum) means no expression The court basically just defers to the school (this is not far removed from a judicial rubber stamp) The court in Perry says that the first two types of public forums have the same strict rule, but the restriction needs to be "reasonable" and cannot be an "effort to suppress expression merely because public officials oppose the speaker's view" Differentiating by viewpoint or status (ie. Limiting who is allows in presidential debates in prime time) would make more sense than what they actually say in Perry The Court says it's not discrimination by viewpoint, it's discrimination by "speaker identity" or status (the line between these two things is not always clear) Rationale for distinguishing among speakers? PEA is an official union; PLEA is not This only really works because it's the third type of public forum (and doesn't have to be narrowly tailored to the purpose; PEA gets unlimited access and it doesn't have to be official business)

Burton v Wilmington Parking Authority

ROL: When a state leases public property to a private entity and forms a relationship of interdependence with that entity, the private lessee must comply with the Fourteenth Amendment's prohibition of discriminatory conduct. FACTS: Burton (plaintiff), an African American man, brought suit against Wilmington Parking Authority (WPA) (defendant), operator of an off-street automobile parking building, on the grounds that the Eagle Coffee Shoppe, Inc., a restaurant located in WPA's building, refused to serve Burton food or drink solely because he was African American. The Supreme Court of Delaware held that the restaurant's actions did not constitute state action and denied relief to Burton. Burton appealed to the United States Supreme Court. ISSUE: Must a private business, leasing property from a publicly-owned building, comply with the Fourteenth Amendment's prohibition on discriminatory conduct? HOLDING AND REASONING: Yes. The Wilmington Parking Authority was created by statute to provide for the public parking needs of citizens of Wilmington, Delaware. The WPA entered into a long-term lease with Eagle Coffee Shoppe, Inc. to help defray some of its operating costs, but the majority of the construction and maintenance costs of the WPA were paid for by public funds. The Civil Rights Cases, 109 U.S. 3 (1883), firmly establish that the Equal Protection Clause of the Fourteenth Amendment prohibits race-based discrimination by state actors. The WPA and the restaurant mutually contribute to each others' success, as the former provides convenient parking for the restaurant's patrons, and the latter provide revenue for the WPA. Race-based discrimination is prohibited in the WPA's services, and it would be a grave injustice to prohibit discrimination in most of the parking structure while allowing discrimination in the part of the building occupied by the restaurant. The WPA's failure to affirmatively require the restaurant to end discriminatory practices, in essence, makes it a party to the discrimination. The WPA's inaction constitutes support of discrimination by a state actor. As this is strictly prohibited by the Fourteenth Amendment, the decision of the Supreme Court of Delaware is reversed and remanded. CONCURRENCE: The unconstitutionality of a state statute relied on by the Delaware Supreme Court should have been the basis for this judgment. The statute at issue permits a restaurant owner to refuse service to a person because of his or her race. As this statute clearly violates the Equal Protection Clause of the Fourteenth Amendment, the restaurant's actions could have been invalidated on that ground. DISSENT: The majority's decision to remand the case to determine the Delaware Supreme Court's intent in relying on what appeared to be a discriminatory state statute is wrong. The statute is ambiguous and merely a restatement of common law; not an actual state sanction of discriminatory activity as is suggested by Justice Stewart's concurrence. The United States Supreme Court prematurely considered the constitutional issue before a definitive ruling was given regarding the intent of the state statute. DISSENT: The majority prematurely decided whether there was state action in this case. The case should have been remanded for a further determination of the Delaware Supreme Court's basis for its opinion that no state action existed. If the Delaware Supreme Court construed the state statute on which it relied as authorizing discriminatory conduct, then the case should be decided according to Justice Stewart's concurrence. However, if the Delaware Supreme Court only sees the statute as a restatement of common law and not an express authorization of discriminatory conduct, then it is improper for the majority to conclude that state action occurred. In essence, the majority acted prematurely in finding state action.

American Booksellers Association v Hudnut

Speech that subordinates women is forbidden, but speech that portrays women in positions of equality is lawful Constricting speech on this basis ^ is unlawful because it presents an "approved" point of view This clashes with the idea that, under the first amendment, we don't allow the government to put itself in the position of the arbitrator of what ideas are good and what ideas are bad Court takes an all-or-nothing approach, saying that we cannot allow censorship based on that rationale, because that opens the door to the government banning everything The court kind of rejects the tendency rationale for suppressing speech (if a certain kind of speech has a tendency to create harm, then the government has the power to suppress the speech before the harm materializes) because there is no overwhelming showing of causation between the speech and the harm ROL: A municipal ordinance may not prohibit pornography on the ground that it subordinates women, as doing so constitutes impermissible viewpoint discrimination under the First Amendment. FACTS: The city of Indianapolis enacted an ordinance prohibiting pornography. It defined "pornography" as a "practice that discriminates against women," specifically in a violent or "sexually explicit" manner. American Booksellers Ass'n ("American") (plaintiff) challenged the constitutionality of the ordinance on the ground that it violated the First Amendment. American brought suit in federal district court against Hudnut (defendant), the mayor of Indianapolis. The district court held the ordinance unconstitutional, and Hudnut appealed to the circuit court of appeals. ISSUE: Whether an Indianapolis ordinance that criminalizes pornography, defined as a "practice that discriminates against women," violates the First Amendment. HOLDING AND REASONING: Yes. The Indianapolis ordinance ("ordinance") defined "pornography" in a manner that did not implicate any aspect of the definition of obscenity, a category of speech previously held unprotected by the First Amendment. For example, the ordinance does not refer to the prurient interest, to offensiveness, or to the standards of the community. This fact justifies treating pornography as defined in the ordinance as a separate category of speech from obscenity. The ordinance ultimately discriminates based on the content of the speech by advocating an "approved" way to view women, how they react to sexual encounters, and how sexes may relate to each other. Speech treating women in the "approved" way (sexual encounters premised on equality) is lawful no matter how sexually explicit, while speech treating women in the "disapproved" way (as submissive in sexual matters or enjoying humiliation) is unlawful regardless of its potential social value. This constitutes viewpoint discrimination that is unconstitutional under the First Amendment. Under the First Amendment, the government must permit people to evaluate all ideas for themselves and may not restrict expression simply because of its message. The Indianapolis legislature had a valid premise for adopting this legislation as it noted that certain viewpoints tend to incite unfavorable actions. The city argues that pornography was based on the idea of subordinating women and would perpetuate the negative subordination of women in practice. However, this fact serves merely to demonstrate the power of pornography as speech. Ultimately, people must be given a choice as to how they react to speech, and speech itself may not be prohibited under the First Amendment simply because it is powerful. Historically, many ideas that have negatively influenced culture (i.e., racism, bigotry, and anti-semitism) have still been protected under the First Amendment because holding otherwise would give the government too much power to control individuals' thoughts and beliefs. Indianapolis could have successfully accomplished its stated objective of protecting women by criminalizing the actual injury of women involved in the making of films. However, its ordinance does not pass constitutional muster because it seeks to control the actual viewpoints expressed in films. Additionally, the city's argument that pornography should be restricted because it prevents the "truth" from prevailing is rejected because under the First Amendment, there is no such thing as a "false idea." The public must be left to sort out truth and falsity of ideas for itself. Finally, pornography cannot be considered "low value" speech that should be prohibited based on this status because Indianapolis itself argues that pornography is dangerous due to its ability to influence social relations, politics, and attitudes on a grand scale. Indianapolis thus offers no rationale upon which its ordinance can be sustained. The decision of the district court is affirmed.

Forintiero v Richardson

The military spouse thing Gender classifications are inherently suspect and, like racial classifications, should be subject to close scrutiny Gender is immutable (cannot be chosen) so you shouldn't discriminate based on it Also pointed to legislative acts (equal rights amendment, title VII of the 1964 civil rights act) that pointed out that congress thought gender discrimination was bad The differential treatment does not save the government money Male could automatically make wife dependent (even if she was independently wealthy) As a female colonel, you had to document that your husband was dependent on you This could produce a difference in the overall amount of benefits that men got

Braunfeld v Brown

This is the true forerunner of Smith (the main principle holding) Sunday closing law (McGowan upheld against establishment clause challenge, saying it's not impermissible sponsorship) Now they're saying their own exercise of religion is being inhibited/burdened by the Sunday closing law (so there can be a free exercise clause challenged) Braunfeld says that he's an orthodox jew and observes the Sabbath on Saturday. He's not challenging the rule on it's face, but he is challenging the law as it applies to him. It's violating his free exercise to religion because if he has to obey this law, he's being put into an economically bad position (if he has to close on Sunday, as the law requires, and he has to close on Saturday, as his conscious/religion requires, he's going to lose lots of money), so he should receive an exemption from this law Majority says no PA law being challenged in this case is a general regulation of business enterprises (applies to everyone, except like pharmacies that have to stay open); it's neutral and not targeted at religion or any person of religion It does not force anyone to embrace any religious belief; it simply makes the practice of their religious beliefs more expensive To strike this down would radically restrict the operating latitude of the legislature (we're a giant nation and it cannot have expected that the legislators don't enact any laws that may in some way result in an economic damage to some religious sects) The court takes kind of a differential approach We cannot carve out things without sacrificing the state's legitimate reason for the law (the state's goal is providing a day that, as best possible, eliminated the atmosphere of commercial noise and activity) Dissent (brennan) the states interest as "the mere convenience of having everyone rest on the same day" is "fanciful" and the law is bad because it makes an orthodox jew chose between his religious freedom and his economic survival

Wallace v Jaffree

Unconstitutional to have a minute for meditation or prayer at the beginning of the day It was amended, the old statute just allowed meditation Before, students could pray if they wanted to anyways (the state wasn't stopping them in any way) Now, the state is endorsing it and that is bad Statutes purpose was to sponsor prayer in schools Concurrence agreed and said simple moment of silence statutes were constitutional Dissent - this state was to clear up the misconception that kids couldn't pray during the minute Court struck down Alabama's particular minute of science law Not a general defeat for states that want to adopt such a law, though The reason it was struck down here was the INTENT of the legislature that adopted this legislation (the sponsor made clear that he wanted to use this bill to bring religion and prayer into the classroom) A minute of silence law will actually be presumptively constitutional, because the court will say it's secular

United States v O'Brien

Under the O'Brien rules, government regulation that applies to a form of expression is constitutional if: (1) it is within the constitutional power of government, (2) it furthers an important or substantial governmental interest, (3) that interest is unrelated to the suppression of speech, and (4) the restriction it incidentally imposes on speech is no greater than necessary to further that interest. Note that the O'Brien rules do not explicitly require that the regulation be content neutral. You can skim over the first two prongs of the O'Brien test (because they're very lenient) Not okay if it's not within the constitutional power of the government Not okay if it doesn't further an important/substantial government interest The third prong of the test If the reason for the regulation is to censor the message that is contained, then it fails the third prong of the test (the aim of the legislation cannot be to target the communicative aspect of the conduct) Here, they say the reason for the regulation is to make it easier and faster to know if someone has their draft cards; the court's like there's a perfectly valid reason for the law that is NOT about regulating the message; O'Brien then alleges that there was a secret motive behind passing this; the court is like we're not looking at legislative intent, we're looking at the governmental purpose (so we're not even going to make that inquiry; the court is like we're not ****ing telepathic); if a law is constitutional on its face, then it's going to be upheld, and a court isn't going to adopt an inquiry into actual/subjective motive Exceptions - enclaves that the court has carved out where because of the particular nature of this doctrine, we are going to inspect motive in a way that we wouldn't otherwise The establishment clause (the court has struck down a law on the ground that it was motivated by a non-secular aka religious agenda) Equal protection clause (the court will strike down laws that it deems to have been motivated by a goal of discrimination) Distinction - Also, the court may not look into legislators, but it will look into administrators (if the employer has dismissed an employee because of a not okay reason) The fourth prong - only comes into play if you have passed the third prong Might be struck down if the incidental restriction on speech is greater than is essential than needed to further the interest This really has teeth to it - Wollie v Maynard (NY had to accommodate if there as a less drastic way to accomplish their purpose, NY had to do it to accommodate the Maynards) Similar to the fourth prong of the Central Hudson test for commercial speech ROL: When speech and non-speech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element could justify incidental limitations on First Amendment freedoms. FACTS: In 1966, David Paul O'Brien and three others (defendants) burned their Selective Service registration certificates on the steps of the South Boston Courthouse. O'Brien was indicted by the United States Government (plaintiff), and convicted by the United States District Court for the District of Massachusetts. The indictment charged that he "willfully and knowingly did mutilate, destroy, and change by burning his Registration Certificate" in violation of the Universal Military Training and Service Act of 1948 (UMTSA), as amended in 1965. That act made it a crime for a person to forge, alter, knowingly destroy, knowingly mutilate, or in any manner change such a certificate. O'Brien appealed his conviction, and the court of appeals reversed on the grounds that the UMTSA violated the First Amendment. The United States Supreme Court granted certiorari. ISSUE: Whether a statute violates the First Amendment's protection of the freedom of speech if it prohibits certain expressive conduct. HOLDING AND REASONING: No. O'Brien argues that the UMTSA as applied is unconstitutional because his act of burning his registration certificate is protected as symbolic speech within the First Amendment. However, conduct cannot be labeled speech whenever the person engaging in the conduct intends to express an idea. However, even if O'Brien's conduct does constitute speech and thus implicates the First Amendment, it does not necessarily follow that the act of burning a registration card is protected speech. The Court previously held that when speech and non-speech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element could justify incidental limitations on First Amendment freedoms. A government regulation is sufficiently justified if (1) it is within the constitutional power of the government; (2) furthers an important or substantial governmental interest; (3) if the governmental interest is unrelated to the suppression of free expression; and (4) if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. The UMTSA meets all of these requirements, and thus O'Brien can be constitutionally convicted for violating it. The governmental interest is Congress's constitutional ability to classify individuals for military service. The issuance of certificates indicating the registration and eligibility classification of individuals is a legitimate and substantial administrative aid in the functioning of this system. As such, legislation to insure the continued availability of issued certifications (such as the UMTSA) serves a legitimate and substantial purpose in the system's administration. The destruction or mutilation of these certificates would defeat these purposes in several ways. Firstly, the registration certificate serves as proof that an individual has actually registered for the draft. If it were destroyed, it would be difficult to verify registration. Secondly, the contact information supplied on the certificates facilitates communication between registrants and their local boards. This simplifies the system, and the destruction of these cards would make communication more difficult. Thirdly, certificates carry continual reminders that the registrant must notify his local board of any change in contact information. This insures that the local boards stay informed about registrants, and the destruction of certificates deprives the system of a potentially useful notice device. Finally, the regulatory scheme involving Selective Service certificates includes clearly valid prohibitions against the alteration, forgery, or similar deceptive misuse of certificates. The destruction or mutilation of certificates increases the difficulty of detecting or tracing these abuses, and increases the risk that mutilated certificates might be used for deceptive purposes. Thus, the government's substantial interest in assuring the continued availability of issued Selective Service certificates is sufficient to justify O'Brien's conviction. O'Brien's argument that Congress's purpose for the UMTSA is to suppress freedom of speech is rejected, as courts are required to provide deference to Congress's motives. The UMTSA, as amended in 1965 is constitutional and the decision of the court of appeals is reversed.

Wisconsin v Yoder

Yoder was a member of the old order Amish and was fined $5 for refusing to send his children to school after they completed 8th grade (his children were 14 and 15) Wisconsin law required kids go to school until they were 16 The Amish object to high school education because they want to live in a "church community separate and apart from the world" Court held that the conviction violated the free exercise clause While the state does have an "interest in universal education" but it has to be balanced "when it impinges in fundamental rights and interests" to assure that "there is a state interest of sufficient magnitude to override the [free exercise] interest" The Amish way of life was deeply religious and high school education required the Amish to perform tasks at odds w their religion While people need education to be in society, an extra year or two wouldn't really help these kids Amish people are pretty successful and self-sufficient, historically Dissent - what if the kids wat to attend high school? The courts response - in the absence of evidence of that, allowing the state to compel high school because of a potential problem of parents acting against children's interests would create "such an intrusion by a state into family decisions in the are of religious training" as itself to raise "greave questions of religious freedom"

Texas v Johnson

You can desecrate the flag because no reasonable onlooker would have regarded the defendant's generalized expression of dissatisfaction with the policies of the federal government as a direct personal insult or an invitation to fight ROL: Under the First Amendment, a state may not criminalize the burning of the American flag as a means of political protest. FACTS: After publicly burning an American flag as a means of political protest, Gregory Lee Johnson (defendant) was convicted by the State of Texas (plaintiff) for desecrating a flag in violation of Texas law. Johnson challenged his conviction in state court on the grounds that the law violated his First Amendment right to freedom of speech. The Texas Court of Criminal Appeals reversed the conviction, and the United States Supreme Court granted certiorari. ISSUE: Whether a Texas statute that criminalizes the burning of an American flag as a means of political protest violates the First Amendment. HOLDING AND REASONING: Yes. It is necessary to consider whether flag burning constitutes expressive conduct, which permits Johnson to invoke his First Amendment rights in challenging his conviction. If Johnson's conduct is classified as expressive, it is necessary to determine whether the state's regulation is related to the suppression of free expression. If Johnson's conduct is not classified as expressive, the Court must apply the analysis for regulations of non-communicative conduct outlined in United States v. O'Brien, 391 U.S. 367 (1968). Thus, to decide whether the O'Brien test applies, it is necessary to determine whether Texas asserts an interest in support of Johnson's conviction that is unrelated to the suppression of expression. Texas stated that its two interests are preventing breaches of the peace and preserving the flag as a symbol of nationhood and national unity. The first interest is inapplicable to the present case, as no disturbance of the peace actually occurred or threatened to occur due to Johnson's flag burning. The second interest is related to the suppression of expression. Texas is concerned that flag burning would lead people to believe either that the flag does not stand for nationhood and national unity, or that concepts reflected in the flag do not actually exist (namely, that the nation is not unified). As these concerns relate to the suppression of expression contained in flag burning, O'Brien's test for non-communicative conduct does not apply. Since Johnson was prosecuted for his expression of dissatisfaction with the policies of his country, the state's asserted interest in preserving the special symbolic character of the flag is subject to the most exacting scrutiny. Nothing in the Court's precedents suggest that a state can promote its own view of the flag by prohibiting related expressive conduct. The enduring principle that the government cannot prohibit expression it disagrees with does not depend on the particular method by which one seeks to express an idea. It would thus be inconsistent to hold that an individual can constitutionally express disagreement with a political viewpoint in any way except flag burning. Additionally, it does not make sense to permit a state to allow flag burning for some purposes and not for others, as this principle has no discernible or defensible boundaries. Thus, Johnson's conviction for burning the flag as a means of political expression cannot be supported by the First Amendment. This holding does not weaken the status of the flag in American society, but rather strengthens it as a symbol of the freedom of expression upon which the United States democratic system of governance is founded. The Texas statute is thus held unconstitutional, and the decision of the court of appeals is affirmed. DISSENT: The American flag occupies a unique and symbolic place in the United States. No other symbol is more respected and honored. Throughout history, it came to be a visible symbol embodying the United States. It does not represent the views of any particular political party or any political philosophy. The flag is not simply another idea or point of view competing for recognition in the marketplace of ideas. It seems unlikely that the First Amendment actually permits this action as a form of protected expression because of the high level of respect given to the flag by federal and state laws prohibiting flag burning. Many people find flag burning offensive, even when used in political protest. The Texas statute criminalizing Johnson's flag burning only deprives Johnson of one means of political expression. He is still free to maintain his beliefs and express them in other ways. Thus, the Texas statute does not violate Johnson's First Amendment rights. DISSENT: This case presents the unique question of whether Texas or the federal government has the power to prohibit the public desecration of the American flag. Rules applying to other types of symbols do not control due to the unique nature of the flag as a symbol of respect. The flag symbolizes not only national unity, but also every principle upon which the United States is founded. The majority's argument that its holding protects the principle of freedom of expression is unpersuasive as the costs to protecting that freedom are too great. Permitting the desecration of the American flag does not protect freedom of expression and should not be allowed. If it's just no conduct, no 1st amendment. So the court has to figure out if it's expressive/symbolic speech, by asking: Did Johnson subjectively intend to communication? Objectively, would a reasonable person perceive at he intended to communicate a message? Is the court trying to stop him from actually burning the flag for an actual reason (relates to O'Brien)? Or just because of the communicative message Outside O'Brien - instead of the low third bar, you're in this stringent scrutiny applied to content based restrictions Is there an intrinsic harm in burning flags, regardless of the communicative content? No The state says they want to preserve the flag as a symbol of nationhood Dissent - disagrees that Johnson was being punished for what he said; it's not the substance they were seeking to prohibit, it's the offensive way that he said it; he could have said it in another way

Personnel Administrator of Massachusetts v Feeney

a gender discrimination case in which the court elaboration on what "purpose" means Under Mass law, all veterans who qualified for state civil service positions had to be considered for appointment ahead of any qualifying non -veterans This meant that this benefitted males The court said that this did not violate the EPC The court said yeah it was foreseeable but "discriminatory purpose" implies more than intent as volition or intent as awareness of consequences; it implied that the decision maker selected or reaffirmed a particular course of action at least in part because of, not merely in spite of its adverse effects upon an identifiable group ROL: To prove that a state actor violates the Equal Protection Clause by enacting legislation with a discriminatory purpose, a plaintiff must show that the decision maker selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group. FACTS: The State of Massachusetts enacted a veteran preference statute providing that all veterans qualified for state civil service positions must be considered for appointment ahead of any qualifying non-veterans. Feeney (plaintiff) was a female non-veteran applicant for the civil service that scored very highly on a number of competitive civil service exams. However, she was passed over for employment opportunities by males with lower scores who were veterans. Feeney challenged the veteran preference statute in federal district court against the Personnel Administrator of Massachusetts (defendant), alleging that the statute disadvantaged women and thus violated the Equal Protection Clause of the Fourteenth Amendment. The district court found that the preference operated overwhelmingly to the advantage of males. Although the district court believed the statute's stated goals were noble and that the statute was not enacted to specifically disadvantage women, the district court held the statute unconstitutional. The court of appeals affirmed, and the Personnel Administrator appealed to the United States Supreme Court. ISSUE: Does a state veteran preference law that discriminates against women violate the Equal Protection Clause of the Fourteenth Amendment? HOLDING AND RASONING: No. The Massachusetts veteran preference law was enacted to reward veterans for their service, to ease their transition from military to civilian life, to encourage patriotic service, and to attract loyal and disciplined people to the civil service. Despite the attempts of Massachusetts to include as many women as possible in the scope of the law, a disproportionate amount of men are included largely because gender-based restrictions were enacted by the military itself. The dispositive question is whether Feeney demonstrates that a gender-based discriminatory purpose has shaped the Massachusetts veteran preference legislation. The crux of Feeney's argument is the established criminal and civil legal principle that a person intends the natural and foreseeable consequences of his or her voluntary actions. The Massachusetts legislature is aware that many more men than women serve in the military. In according preference to veterans in the civil service, Massachusetts must intend that more men than women be employed in the civil service. The disparity in civil service hiring decisions in favor of men is therefore intentional. However, to prove a discriminatory purpose as required for an Equal Protection Clause challenge, Feeney must prove that the Massachusetts legislature adopted the veteran preference law because of, not merely in spite of, its adverse effects upon women. Nothing in the record indicates the legislature enacted the law to discriminate against women. Feeney fails to meet her burden of proof. The decision of the court of appeals is reversed. DISSENT: The Massachusetts veteran preference law should be held unconstitutional because of its extreme discriminatory impact on women as a group. The impact of the statute on women is undisputed. Less than two percent of women in the state are veterans, rendering desirable civil service employment positions open almost exclusively to men. The reality of the absolute preference for veterans means that more men occupy traditionally higher-paying positions in the civil service that encompass more responsibility, while more women occupy lower-paying clerical positions, if any. When the foreseeable impact of a facially neutral policy is so disproportionate, the burden should shift from the individual plaintiff to the state to establish that gender-based considerations play no role in the legislature's enactment of the particular legislative scheme in question. The judgment of the court of appeals should be affirmed unless Massachusetts demonstrates that no gender-based considerations influenced its decision to adopt the veteran preference statute. Court upheld a Mass statute giving "absolute lifetime preference to veterans" for state civil service positions, even though most veterans are men The statute is gender neutral on the face but its challenged on the fact that it disadvantages women, so the court must ask 1. Whether the statutory classification is indeed neutral 2. If the classification, either overtly or covertly, is not based upon gender, the second question is whether the adverse effect reflects invidious (unwarranted, unjust) gender based discrimination Purposeful discrimination is THE condition that offends the constitution Appellee argues that the presumption that a person intends the natural and foreseeable consequences of his voluntary actions Court says discriminatory purpose did something active (affirmed because of, not in spite of) Case of whether the Massachusetts absolute lifetime preference applying for jobs violated equal protection On its face, there's no problems (a state is entitled to reward its veterans for their service) But is there a discriminatory motive or intent? Because the disparate effect (more men than women) is very obvious Law does not in any way reference gender How does the court find that this doesn't violate the equal protection clause, even though the results are obviously VERY lopsided? Veterans aren't exclusively male In the past, people have been allowed to give veterans special hiring status Like Washington v Davis Should you have known that this harm would occur? Is that the same thing as intent? Argument that mass intended to undercut women's opportunities? Because it was clear that there were way more men than women P's lawyer in this case would have needed to show legislative intent to "keep women in the kitchen" to show intent

Lorillard Tobacco Co v Reilly

court invalidated Massachusetts's regulations prohibiting outdoor ads within 1000 feet of a public playground or elementary or secondary school; the court said that it was truthful information and adults needed it FACTS: A Massachusetts regulation of tobacco advertising prohibited the advertising of tobacco products within one thousand feet of a school or playground and required that places selling tobacco products place ads for these items at least five feet off the ground to avoid being at eye level for children. Lorillard Tobacco Co. (plaintiff) filed suit in federal district court against Reilly (defendant), the Massachusetts Attorney General, on the grounds that (1) cigarette advertising regulations are preempted by the Federal Cigarette Labeling and Advertising Act (FCLAA) which prescribes mandatory health warnings for cigarette packaging and advertising and (2) the ban on advertising for cigarettes, smokeless tobacco, and cigars violated the First Amendment. The district court held that the State restrictions on the location of advertising were not preempted by the FCLAA, and that the ban was unconstitutional. The court of appeals affirmed the preemption claim, but reversed the First Amendment claim. The United States Supreme Court granted certiorari. ISSUE: Whether a State regulation that prohibited certain advertising of tobacco products violates the First Amendment under the four-part analysis outlined in Central Hudson Gas & Electric Corp. v. Public Service Commn. of New York. HOLDING AND REASONING: Yes. Federal law preempts the state's regulation of cigarette advertising. However, the federal law only applied to cigarettes, and thus it is necessary to evaluate the constitutionality of the state's outdoor and point-of-sale advertising regulations for smokeless tobacco and cigars. It is well established that commercial speech is still protected by the First Amendment. The constitutionality of commercial speech regulations is ultimately determined by a four-part analysis adopted by the Court in Central Hudson Gas & Electric Corp. v. Public Service Commn. of New York (1980). The test states that courts must determine the constitutionality of governmental regulations of commercial speech by considering the following: (1) Does the speech advertise illegal activities or constitute false or deceptive advertising that is unprotected by the First Amendment? (2) Is the government's restriction justified by a substantial government interest? (3) Does the law directly advance the government's interest? (4) Is the regulation of speech no more extensive than necessary to achieve the government's interest? Despite Lorillard Tobacco Co.'s and other courts' arguments that the Central Hudsontest should be rejected; there is no reason to break from this standard. Regarding the third inquiry as to whether the law directly advances the government's interest, a significant amount of empirical data accompanied by background information is not required to pass muster. The government provides sufficient evidence of use of smokeless tobacco and cigars by young people to demonstrate that the regulation of advertising is related to the government's interest in reducing the use of these products by young people. However, the government's regulations fail to pass the fourth inquiry because there is not a reasonable fit between the means and ends of the regulatory scheme. The practical effect of the prohibition on outdoor advertising within one thousand feet of schools or playgrounds is that tobacco advertising is essentially prohibited within eighty-seven to ninety-one percent of Boston, Worcester, and Springfield, Massachusetts. The substantial geographic reach of the regulations combined with the breadth of outdoor advertising they prohibit, make it unlikely that they are not more extensive than necessary to achieve the government's interest. Thus, the state's regulations of outdoor advertising of smokeless tobacco and cigars violate the First Amendment. It should be noted that indoor advertisements will often be visible from outside the store. The regulation's breadth inadvertently places indoor advertisements in the category of outdoor advertisements. Once indoor advertisements can be regulated as outdoor advertisements, the regulation fails the fourth inquiry of the Central Hudson analysis for being over-inclusive. The regulations are unconstitutional under the First Amendment. CONCURRENCE: When the government seeks to restrict truthful speech in order to suppress the ideas it conveys, strict scrutiny is appropriate regardless of whether the speech could be properly characterized as commercial. All of the state's regulations should have been subject to strict scrutiny and should have been found to violate the First Amendment. Under strict scrutiny, the advertising ban could only be sustained if it is for a compelling government purpose and is narrowly tailored to achieve that purpose. The state's interest in protecting children from exposure to tobacco products is arguably no more compelling than its interest in protecting children from exposure to fast food and alcohol products. This is because tobacco, obesity, and alcohol use are the three largest causes of preventable death in the United States. There are currently no regulations in place for fast food and alcohol advertising that could possibly be viewed by children, and such regulations would likely not be appropriate under the First Amendment. Thus, the government fails to articulate a compelling purpose for regulating tobacco use in this manner, and its regulations would not pass strict scrutiny. CONCURRENCE/DISSENT: The majority is correct in concluding that the state has important interests served by the advertising restrictions. However, despite noble purposes, regulations may still be unconstitutional if they are not narrowly tailored. The requirement that the regulation be narrowly tailored is important because the means chosen by the statute may be insufficiently related to the ends they purportedly serve. The statute may be so broadly drawn that, while effectively achieving its ends, it unduly restricts communications that are unduly related to its policy goals. The one-thousand foot rule prevents tobacco advertisers from lawfully reaching adult consumers with their messages. The First Amendment does not permit states to overly regulate advertising of legal adult material simply because the material is unfit for children. Since it is unclear whether the use of protective zones is a proper tool for achieving the states' purpose, the case should have been remanded for consideration of this issue.

Brown v Board of Education of Topeka (Brown I)

court is like yeah it's unconstitutional to keep blacks out of white schools psychology shows that it's detrimental for black children and fosters this idea that they're inferior education is super important separate but equal does not exist when it comes to schools ROL: Separate educational facilities based on racial classifications are inherently unequal and violate the Equal Protection Clause of the Fourteenth Amendment. FACTS: The present case represented a consolidation of cases from Kansas, South Carolina, Virginia, and Delaware. In each state, African American minors sought the aid of their state courts in gaining admission to public schools on a non-segregated basis. In all instances, Brown and other minor African American children (plaintiffs) had been denied admission to public schools attended by white children under laws requiring or permitting segregation according to race. They alleged that this segregation deprived them of Equal Protection of the laws under the Fourteenth Amendment. In 1951, Brown first filed suit against the Board of Education for Topeka, Kansas (defendant) in federal district court. The district court ruled in favor of the Board of Education, citing Plessy v. Ferguson, 163 U.S. 507 (1896), as guidance. The United States Supreme Court granted certiorari. ISSUE: Whether the segregation of children in public schools solely on the basis of race, even though the physical facilities and other tangible factors are equal, deprives the children of the minority group of educational opportunities in violation of the Equal Protection Clause of the Fourteenth Amendment. HOLDING AND REASONING: Yes. In deciding the issue it is not possible to rely on the original intent surrounding adoption of the Fourteenth Amendment because prior cases and the legislative history involved in its enactment are inconclusive as to the true extent of its meaning. Additionally, it is not helpful to look at the status of public education at the time the Fourteenth Amendment was adopted, as most Caucasian children were then educated by private schools, and most African American children were not educated at all. Very few public schools existed at the time, which adds to the difficulty in determining the historical intentions surrounding the Fourteenth Amendment's effect on public education. An examination of the text of the Fourteenth Amendment itself is utilized to determine the intent behind the Amendment's application to public education. The basic language of the Amendment suggests that it was passed to prohibit all forms of discriminatory legislation against African Americans. In the present case, all basic attributes of the Caucasian and African American schools are essentially the same. To determine whether the segregated schools violate the Fourteenth Amendment as interpreted, it is necessary to examine the actual effect of this segregation on the institution of public education as a whole. Public education has, over the years, become one of the most valued and important public services performed by state and local governments. Children can hardly be expected to succeed in life if they are not educated. Thus, when an opportunity for education exists and the state has undertaken to provide it, that opportunity must then be made available to all students on equal terms. In the present case, the opportunity for education is not equally provided to minority students, as the existence of segregation has a profound and detrimental effect on their hearts and minds. Modern studies confirm that the children experiencing segregation feel inferior, become less motivated, and perform at a lower standard than children that do not experience segregation. To the extent to which Plessy held to the contrary regarding the psychological effects of segregation, it is hereby overturned. The African American students are deprived of equal protection of the laws under the Fourteenth Amendment because of the segregation in their public education. The decision of the district court is reversed. Question: does a state impose racial segregation in public schools without any specific demonstration of inequality, does that inherently violate the equal protection clause Answer: yes Reaches through Plessy doctrine In each of those instances, what purported to be a separate but equal schools were actually separate but unequal If someone comes along and shows that the data that the court relied upon to desegregate is flawed, then the holding might be overturned? This is a probably Overtime, brown has come to represent the broader proposition that states may not act on the premise that one racial group is inferior to another racial group Brown I is limited because it announced the principle (that it violates the EPC) but it doesn't tell us what to do about it

Abrams v. US

four plaintiffs were convicted of conspiring to violate the Espionage Act by printing out leaflets denouncing the US's decision to send troops to Russia during WWI; the court cites Frohwerk and Schenck Dissent, Holmes: the D's intent was not to cripple the US, it was to help Russia (who the US was not at war with); the present case differs from previous ones in that there is no clear and present danger; congress cannot forbid all effort to change the mind of the country; says they're being punished for 20 years, and that's excessive if it's just for the pamphlets, so they're basically being punished for their views in general FACTS: Abrams and four others (plaintiffs) were convicted of conspiring to violate the Espionage Act of 1917 (EA), as amended in 1918. Abrams printed many copies of leaflets, written both in English and Yiddish, denouncing the United States' decision to send troops to Russia as part of World War I. Other leaflets denounced the United States' general involvement in World War I and United States' efforts to curtail the Russian Revolution. The distribution of these leaflets was found unlawful by the federal district court because it involved the spreading of language meant to incite resistance to the war effort and to urge the curtailment of production of essential war materials. Abrams challenged his convictions on the grounds that the EA was an unconstitutional violation of the First Amendment, and the United States Supreme Court granted certiorari. ISSUE: Whether the Espionage Act violates the First Amendment rights of persons who distribute leaflets during wartime that denounce the United States' involvement in World War I. HOLDING AND REASONING: No. Abrams was charged with conspiring to accomplish unlawful printing, writing, and distribution of many copies of leaflets in New York City. Abrams and the other convicted individuals were born in Russian, and had lived in the United States for several years without ever applying for naturalization. Abrams' group was intelligent, and all testified on their own behalf in court and stated that they were "rebels," "revolutionists," and "anarchists" who did not believe in government in any form. Abrams argues that his act of distributing leaflets discussing these views was lawful because it involves speech protected by the First Amendment. However, for the reasons discussed in the Court's prior decisions in Schenck v. United States, 249 U.S. 47 (1919), and in Frohwerk v. United States, 249 U.S. 204 (1919) (which held that ordinarily-protected speech can be restricted during wartime if it presented a clear and present danger to a Congressional purpose), Abrams' speech is not protected and the convictions by the district court are sustained. DISSENT: The indictment and subsequent conviction of Abrams and his group is based solely on the publication of two leaflets. The first criticizes the United States President for being a coward in World War I, and blames the cause of the war on capitalism. The second calls for America's help in furthering the Russian Revolution. Neither of these statements attacks the form of government of the United States in any way, as prohibited under the EA. Additionally, the government does not present any evidence that the pamphlets were actually made and distributed with intent to cripple the United States in its production of essential war materials. Without proving intent, the conduct could not be considered criminal under the EA. While previous decisions in Schenck, Frohwerk, and Debs v. United States. 249 U.S. 211 (1919), were correctly decided, the present case differs from the speech at issue in those cases because there is no clear and present danger that Abram's speech could possibly harm the war effort or the draft. Abrams should not have been convicted under the EA because the intent behind publishing the leaflets was to encourage Americans to help Russia and not to inhibit the success of America in World War I. "only speech that poses a present danger of immediate danger can be prevented" Marketplace of ideas is the most important ROL: Speech, which would ordinarily be protected by the First Amendment, may nevertheless be prohibited when it is used in such circumstances and is of such a nature as to create a clear and present danger of substantive evils that Congress has a right to prevent. Draws on Schenck and Frohwek

Wooley v Maynard

the court held that New Hampshire could not criminally punish individuals who covered up the state motto "live free or die" on their passenger vehicle license plates because the moto was repugnant to their moral, political, and religious beliefs The state says that they need this to designate passenger cars, but the can do this a different way The court was actually subjective, saying that while most people don't feel this way, the Maynards do Government prescribed and dictated ROL: The First Amendment prohibits the compulsory display of a state's motto on license plates. FACTS: A New Hampshire law required all drivers' license plates to display the state's motto, Live Free or Die. George and Maxine Maynard (defendants) were Jehovah's Witnesses and considered the motto immoral and against their religious beliefs. As the Maynards did not want to display the motto for people to see, the Maynards repeatedly covered the license plates on their car. The Maynards were convicted for violating the New Hampshire law and sentenced to six months in jail. The Maynards appealed their conviction to the United States Supreme Court. ISSUE: Does the First Amendment prohibit the compulsory display of a state's motto on license plates? HOLDING AND REASONING: Yes. The First Amendment prohibits the compulsory display of a state's motto on license plates. The First Amendment prohibits a state from compelling its citizens from engaging in speech that the citizens would not otherwise make. The right to refrain from speech is as important to the First Amendment as the right to speak. Thus, a state may not force its citizens to adhere to or promote an ideological or political view. Any law that compels such speech is subject to the highest level of First Amendment scrutiny. To be considered constitutional, the law must be narrowly tailored to serve a compelling governmental interest and use the least restrictive means available. Here, the New Hampshire law requires the display of the state motto on license plates. By requiring people to display the state motto, the state is essentially compelling its citizens to engage in a form of speech and communicate their support of the state's message. Thus, the law is subject to strict scrutiny and must be narrowly tailored to serve a compelling government interest. The state first claims to have a compelling interest in identifying cars licensed by the state. However, New Hampshire license plates already use a distinct sequence of letters and numbers that make cars distinguishable. The state also contends that it has an interest in promoting state pride. While this is a legitimate state interest, such interest cannot justify compelling speech. A license plate, unlike a dollar bill or a state seal, is highly visible and advertised to anyone who sees the driver's car. These facts support the conclusion that the New Hampshire law compels speech and is not narrowly tailored to serve a compelling governmental interest. Therefore, the Maynards' conviction is reversed. DISSENT: Although the First Amendment prohibits the state from compelling its citizens to engage in speech, the display of the state's motto on license plates is not a form of nonverbal conduct that constitutes speech. Therefore, the law does not implicate or affect the Maynards' First Amendment rights.

Stone v Graham

the court held unconstitutional a Kentucky statute requiring that a copy of the 10 commandments be posted on the walls of each public classroom No secular legislative purpose Posting them will probably have the effect of inundating the children to follow them Kentucky statute required the ten commandments to be in every classroom Court said that although the technical purpose was to promote good values etc (and was secular) BUT the court is like "liar liar pants on fire" and is like yeah no; the court is incredulous and cannot accept any other (non-secular) reason that would account for the requirement that the 10 commandments are in the classroom This doesn't mean that the government can never display the ten commandments (context is crucial)

McGowan v Maryland

the court rejected an establishment clause challenge to laws requiring that most large-scale commercial enterprises remain closed on Sundays Sunday closing laws were historically for promoting church attendance But now they're more to promote rest And the court allows Sunday rest They're not going to say it's unconstitutional just because of its origins Court rejected the argument that the government is trying to get people to buy into and believe Christian beliefs Court's like yeah, this arose from a religious impetus But the genesis of the law is not why we keep the law around today Critique of Scalia - Mad that the court is trying to get into the alleged motive of the legislature

Plessy v Fergeson

they're like hey there's no inferiority prescribed by the legislature the inferiority you feel is all social and that cannot be fixed by the constitution Plessy was 7/8 Caucasian and was kicked out of a white railcar carriage because of a statute the court also said look schools are separate and no one is complaining about that so this is fine dissent - the statute is meant to keep blacks out of white cars, not the other ways around also this dude rally hates Chinese and is pissed that they could sit in white cars but blacks couldn't ROL: Public accommodations that are segregated according to racial classifications do not violate the Equal Protection Clause of the Fourteenth Amendment as long as such accommodations are "separate but equal." FACTS: In 1890, the State of Louisiana passed a law that provided for separate railway cars for Caucasian and African American persons. Plessy (defendant) was seven-eighths Caucasian and one-eighth African American, but was considered African American under Louisiana law. He challenged the law by taking a seat in a Caucasian railway car and was asked to move to the African American car by the conductor. When he refused, he was forcibly ejected and imprisoned. The Committee of Citizens originally brought suit on behalf of Plessy in Louisiana state court challenging his arrest and conviction. The presiding judge, Ferguson (plaintiff), held that Louisiana had a right to enact such legislation to regulate railway companies as long as those companies operated within the state's borders. Plessy then sought a writ of prohibition against Ferguson. The Committee of Citizens appealed on Plessy's behalf to the Louisiana Supreme Court, which upheld Judge Ferguson's ruling. The United States Supreme Court granted certiorari. ISSUE: May a state enact a law providing for separate railway cars for Caucasian and African American persons without violating the Equal Protection Clause of the Fourteenth Amendment. HOLING AND REASONING: Yes. While the object of the Fourteenth Amendment is to promote the equality of all races before the law, it cannot have been intended to abolish all distinctions based on color, or to enforce social (as opposed to political) equality when African Americans and Caucasians do not actually want to be commingled. Laws permitting or requiring the separation of the two races are supported by precedent and do not necessarily imply the inferiority of either race to the other. If the African American race feels inferior because of the laws, that inferiority construction is placed upon the race by itself. Legislative judgments forcing commingling cannot be used to improve race relations, and if the two races are to meet upon terms of social equality, it has to be the result of an organic process. The Louisiana law is upheld on the grounds that if the civil and political rights of both races are separate but still equal, one cannot be considered inferior to the other either socially or politically. The distinction does not imply racial inferiority or violate the Equal Protection Clause of the Fourteenth Amendment because the railway cars of the two races in the present case are separate but equal. The decision of the Louisiana Supreme Court is affirmed. DISSENT: A legislative body or judicial tribunal should not consider the race of citizens when making legislative decisions about civil rights of those citizens. In this case, the consideration of race violates both concepts of equal rights and personal liberty interests. The Louisiana law is condemnable in creating separate cars for African Americans because the obvious underlying reason for the law is a belief by the legislature that African Americans are an inferior race. The Constitution itself is color-blind, and the Louisiana law and the majority's decision both misinterpret the civil rights protections embodied in the Constitution. The majority's decision will eventually be overturned and condemned as being just as pernicious as the previous decision in Dred Scott v. Sandford, 60 U.S. 393 (1857). Louisiana's law should have been invalidated as unconstitutional. Why does the court treat this law differently? This is more of a blanket law Less overt inequality