Barnett - Con Law II Final Exam Study

Peruta v. County of San Diego (9th Cir. 2016)

"Good cause" requirement to get a concealed carry permit Does the "good cause" requirement violate the party's 2nd A rights? No, 1. The APPC found not right to carry concealed weapons in public 2. Concurring opinion said even if concealed carry right, this is a reasonable restriction under an intermediate standard 3. THOMAS/GORSUCH - dissent from denial of cert. a. This prevents people from carrying in public basically all of the time because of the near total prohibition on open carrying in California b. As in Heller, "bear arms" encompasses public carrying c. Effective bans on public carrying = unconstitutional d. Self-defense interests exist when the person is away from home e. Laments the Court's failure to resolve the issue Randy - What is going on? There is somewhat of a resistance movement to Heller and McDonald where the Circuits are reverting almost to a Breyer-like mode of answering the question What about good-faith? - Randy argues that the Constitution gives discretion in choices , but only when done in good faith of the purposes of the granted powers ---- cannot do it for pretextual purpose outside the bounds of power ----- why not use objective means/end fit by looking to see if sufficiently related and whether arbitrary or not

Craig v. Boren

****Creates intermediate scrutiny****OK statute prohibits the sale of non-intoxicating beer to males under the age of 21, and to females under the age of 18 Statistics do not support the notion that gender-based distinction closely serves to achieve scheme of public health and safety, therefore fails intermediate scrutiny Rehnquist - dissent Would apply rational basis (committed to Williamson Lee Optical approach); no history or pattern of past discrimination for men, and no important personal interest at stake here Notes Why switch to intermediate? 1. Women aren't discrete and insular minorities 2. Race is entirely irrelevant characteristic for the government to take into account when legislating, except to remedy for previous racial policy. Sex distinctions, however, are sometimes not-invidiously relevant (i.e., segregation of sex bathrooms - no intent or history of subordination)

Frontiero v. Richardson

****No longer good law**** Under statute, a female member of the uniformed services could only claimed her spouse as a dependent for the purposes of obtaining increased benefits if he is dependent upon her for over ½ support; in contrast, a serviceman may claim a wife as a dependent without regard to whether she is actually dependent Classifications based on sex are inherently suspect and are therefore subject to strict scrutiny; statute is solely based on gender and serves no purpose other than mere administrative inconvenience, thus, unconstitutional 1. Precedent: Reed v. Reed: State's interest in administrative efficiency is not without some legitimacy, but is ultimately arbitrary 2. Strict scrutiny derived from a. Sex, like race, is something you're born into (legal burdens should bear some relationship to individual responsibility) b. Frequently bears no relation to ability to perform or contribute to society c. Historical practice with deep roots in social and legal culture

The Civil Rights Cases

***Still good law**** Civil Rights Act of 1875 requires all persons to be provided full enjoyment of public accommodations; two cases denied persons of color accommodations at an inn, two at a theater An act of refusal has nothing to do with slavery or involuntary servitude (13th) and if it is violative of any right of the party, his redress is to be sought under the laws of the state. If those laws are adverse, his remedy will be found in the corrective legislation which Congress has adopted or may adopt via the 14th 1. Limits Congressional power to corrective legislation 2. Legislation may be adopted in advance, but it "should be adapted to the mischief and wrong which the amendment was intended to provide against" The 14th Amendment only reaches public action due to State Action Doctrine ("no state shall"); issue is how to categorize the middle-category 1. Private - marriage, socialization, etc. can discriminate 2. Private with public nature - ? (inns; privately owned licensed by the state) 3. Public (state action) - no discrimination (railroads) Amendment Applicability Protecting Against 13th Direct, primary, individuals Slavery 14th Corrective, state regulations Unequal protection of laws based on race/class

NYT v. Sullivan

1. AL state commissioner brought a libel action against the NY Times for an article that didn't specifically reference him, but the police; undisputed that some of the statements were not accurate depictions of the event; made no effort to prove actual loss 2. Under AL law, libelous per se = strict liability; property interest in reputation (common law approach); no defense unless D can persuade the jury that comments were true in all particulars Does the AL rule of liability for defamation, as applied to an action brought by a public official against critics of his official conduct, abridge the freedom of speech and of the press? Yes: For a public official to recover damages for a defamatory falsehood related to his official conduct, he must prove that the statement was made with actual malice—that is, (1) knowledge that it was false, or (2) with reckless disregard of whether it was false or not 1. Rationale: Democracy requires the criticism of the government (ability to protest/object) to work; so exception made to the common law doctrine for public officials 2. Falsity Debate: Is a false statement not speech, and therefore not protected by the 1st; or is it speech within protection that can be regulated? a. If it is outside of the 1st, presumably wouldn't need scrutiny. The court has gone both ways! b. Sullivan: "factual error" does not suffice to remove constitutional protection; not protectable in itself, but needs to be protected to protect true speech against self censorship 3. Butts extended the New York Times defamatory criticism test to public figures a. "nonpublic persons who are nevertheless intimately involved in the resolution of important public questions," or, b. "by reasons of their fame, shape events in areas of concern to society at large"

Cohen v. Cowles Media Co.

1. An active Republican associated with a campaign approached reporters from two newspapers and gave them dirt on the opposing party's candidate on the promise that they not reveal his identity 2. Both papers published his name as part of the story, and Cohen was fired by his employer Does the 1st prohibit P from recovering damages under state promissory estoppel law? No: The 1st Amendment does not forbid its application to the press (another generally-applicable law) 1. The private cause of action involves state action because the legal obligations would be enforced through MN courts 2. Generally applicable laws do not offend the 1st simply because their enforcement against the press has incidental effects on its ability to gather and report the news Blackmun - dissent 1. Unlike Branzburg, this is a content-based restriction 2. Hustler should apply: state interest is insufficient to remove from the 1st Amendment protection a patently offensive expression of opinion 3. There is a 1st Amendment over-ride of private law (see NY Times): even laws of general application can be overridden if it invades the 1st Amendment

Red Lion v. FCC

1. Fairness Doctrine: required equal coverage on each side of an issue on broadcast stations 2. Broadcast company carried a 15-minute broadcast attacking a book by Cook, and proceeded to refuse Cook reply time Does the 1st Amendment protect a broadcast station's ability to broadcast whatever they choose, and to exclude whomever they choose? No: The Fairness Doctrine is constitutional. In view of (1) the scarcity of broadcast frequencies, (2) the Government's role in allocating those frequencies, and (3) the legitimate claims of those unable without governmental assistance to gain access to those frequencies for expression of their views, it is constitutional to require equal coverage 1. Rejects the argument that the condition no longer exists a. "scarcity is not entirely a thing of the past" b. Existing broadcasters have their present position because of their initial gov. selection, and therefore have a substantial advantage over new entrants (confirmed habits of listeners, network affiliation, etc.) 2. Randy does not like this case, it is unclear whether it was later implicitly over-ruled, and how it would play out today w/new technology

McConnell .v FEC and Citizens United Thomas Dissents

1. Founding-era Americans opposed attempts to require the disclosure of identities by anonymous authors on the ground that it violated freedom of the press; much of political writings were published anonymously (e.g., Federalist Papers, Hamilton as Publius) 2. Interest of anonymous works in the marketplace > public interest in requiring disclosure 3. Simply interest in providing information about the speaker to the public does not justify disclosure Citizens United Dissent 1. Proposition 8 ("[o]nly marriage between a man and a woman is valid or recognized in California."), required disclosure of donor info online for over $100 2. Resulted in retaliation, threats, harassment 3. Success of such intimidation tactics spawned a cottage industry that uses forcibly disclosed donor information to pre-empt citizens' exercise of their 1st Amend. rights

Lemon v. Kurtzman

1. PA Statute: provides financial support to nonpublic schools by reimbursing teachers' salaries, textbooks, and instructional materials in specified secular subjects 2. RI Statute: pays directly to teachers in nonpublic schools 15% salary Is state monetary aid given to church-related education institutions for secular purposes constitutional? Both statutes are unconstitutional 1. Lemon Test to determine if statute is consistent with the Establishment Clause a. Must have a secular legislative purpose b. Its principal or primary effect must be one that neither advances nor inhibits religion c. Must not foster an excessive gov. entanglement with religion (Randy: most regularly ignored part of the test) 2. Main evils Establishment Clause intended to afford protection against (Walz) a. Sponsorship b. Financial support c. Active involvement of the sovereign in religious activity 3. Secular purpose is met for both statutes: clearly the state intended to enhance quality of secular education, and no reason to believe gov. pretext; legislative intent therefore given deference 4. Some relationship between gov. and religion is inevitable a. E.g., fire inspections, zoning regulations b. Line of separation is not a wall, but "blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship" 5. Problems with the statutes a. Would be difficult to guarantee teacher neutrality b. Doing so would require a comprehensive state surveillance program to ensure funds are being used for a secular purpose, thus causing an "excessive and enduring entanglement between state and church"

Roe v. Wade

1. Pregnant woman and others brought a class action challenging the constitutionality of TX statute criminalizing the procuring of or attempt to procure an abortion, except to save the life of the mother 2. DC held that fundamental right of women to choose whether or not to have children protected by the 9th Amendment through the 14th Amendment The right of personal privacy includes the abortion decision, but the right is not unqualified and must be considered against important state interests in regulation (upheld through Due Process) 1. Court goes through the history of abortion to show that it was always treated as less than murder 2. State interests in preventing abortion a. Health of mother: not anymore; until end of first trimester, mortality less than normal childbirth b. Protecting potentiality of life: fetus not a "person" for purposes of constitution 3. "This right of privacy, whether it be founded in the 14th Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the DC determined, in the 9th Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy" a. Very problematic reasoning; almost as though the source of the right doesn't matter b. Form of legal practice that Scalia was instrumental in challenging 4. Trimester system a. Up until the end of the first trimester: up to woman and her doctor b. After first trimester, state can regulate the abortion procedure to the extent that the regulation reasonable relates to the preservation and protection of maternal health c. At the point of viability of the fetus, states may go as far to proscribe abortion (protection of the potentiality of life becomes compelling) Douglas - concur The 9th Amendment includes rights that comes within the meaning of the term liberty as used in the 14th Amendment Rehnquist - Dissent 1. While liberty under the 14th Amendment protects more, not unqualified: shows respect for the majority 2. Believes that rational basis should have been applied under Williamson; analogizes majority to Lochner 3. Disagrees with the court's historical analysis: no "right" to abortion at time of the 14th Note Because the fetus is not a "person" under the Constitution, would have to regulate/prohibit abortion on the basis of morals 1. Randy thinks that this is why Scala is so impassioned about including morality under the states' police powers 2. Much morals legislation wasn't passed until the progressive era (coupled with public health rationales to pass)

Roberts v. United States Jaycees

1. The Jaycees, a nonprofit membership corporation, is a young men's civic organization that limits regular membership to young men but permits women and older men to become "associate members" who have lower dues but may not vote, hold office, or participate in certain programs 2. Two chapters began admitting women regular members, nationals threatened to revoke chapter 3. Chapters complained bylaws violated MN Human Rights Act MN's interest in eradicating discrimination against its female citizens justifies its infringement on Jaycees expressive association 1. Distinguishes two types of association a. Freedom of intimate association (tied to privacy/14th) i. Relationships that attend the creation and sustenance of a family fall under, involve deep attachments and commitments, high degree of selectivity ii. Consider: size, purpose, policies, selectivity, congeniality iii. Jacyee's do not fall under: large and basically unselective group, only factors are age and sex; women can do basically everything but vote b. Freedom of expressive association (tied to 1st) i. Freedom to speak, worship, and petition the gov. could not be vigorously protected from interference without correlative freedom to engage in group effort towards those ends ii. Jaycee's do fall under 2. Scrutiny analysis a. While MN is infringing on Jaycee's associational right by interfering with internal organization, right is not absolute b. MN's compelling interest in eradicating discrimination against its female citizens justifies the impact of the statute as applied i. Statute is content-neutral: does not aim to suppress speech ii. Least restrictive means of furthering goal: no change in creed, and rejects arg. that women's voting will impact as "sexual stereotyping" Randy - Notes - this case isn't about a "place," but a group, so should the MN law even apply? (getting away from inn-keeper justifications) Questions whether the mission would be jeopardized by having women vote - what if they voted for non-men's issues? Then the mission would be affected What's really going on? 1. Court is concerned about circumvention of anti-discrimination laws because of Jim Crow 2. Also concerned about excluding women—"realistic assessment" of how these organizations function as business networking organizations a. Given history and inertia, a lot more difficult for women's groups to break in unless they're actually at the table b. More like the public accommodation cases from the 1870s—falls into that intermediate place between the public and private sphere i. Interpreting statute very broadly on the basis that the group meets within a place, despite that setting might vary ii. Randy: Actually makes a big difference whether located in a public facility that excludes vs. exclusive meeting in private place ("how the legal system creeped from public/private to public accommodations, including work")

Obergefell v. Hodges

14 same-sex couples and two men whose same-sex partners are deceased brought suit challenging Michigan, Kentucky, Ohio and Tennessee laws preventing their marriage - denial of marriage leading to... 1. Obergefell denied being listed as surviving spouse on Ohio death certificate 2. Adoption laws in some states only permit single individuals or same-sex couples to share legal rights over adopted children The right to marry is a fundamental right inherent in the liberty of the person; under the Due Process and Equal Protection Clauses of the 14th Amendment, couples may not be deprived of that right and liberty 1. Formally a due process case with subsidiary equal protection justification (opposite of Loving, which was primarily equal protection with subsidiary due process) 2. Historical tradition of marriage has been understood as existing between 2 people of the opposite sex - however, history of marriage is one of both continuity and change (i.e., women's rights) 3. Explicitly rejects applying the Glucksberg 2-step, suggests this as an alternate way to do things a. Courts must exercise "reasoned judgment" (whatever that means) in identifying interests of the person so fundamental b. "history and tradition guide and discipline this inquiry but do not set its outer boundaries" c. Kennedy acknowledges the level of generality problem: "if rights were defined by who exercised them in the past, then received practices could serve as their own constitutional justification and new groups could not invoke rights once denied" 4. Principles a. The right to personal choice regarding marriage is inherent in the concept of individual autonomy b. The right to marry is fundamental because it supports a two-person union (no reason why doesn't apply to 3+ unions) unlike any other in its importance to the committed individuals c. The right to marry safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education d. Marriage is a keystone of our social order, basis for expanding list of governmental rights, benefits and responsibilities 1. Lawrence was about "liberty," here Kennedy reaches "fundamental rights" 2. If both Due Process and Equal Protection are about ferreting out arbitrariness, can be true in the same case a. Randy attributes this to the nullification of the privileges or immunities clause b. Similar to what happened in Brown/Bolling: had to use these clauses to compensate for the nullification 1. Substantive due process is bad 2. Lochner is bad (Randy thinks Roberts hasn't studied Lochner since law school he is "obsessed" and "hasn't kept up with a better understanding") 3. Core meaning of marriage has persisted and is rooted in procreation 4. Reducio ad absurdum: what's to stop the court from recognizing polygamy? The court is threatening elected democracy/self-governance (cites DOI with approval vs. his dissent in Troxell) 1. Liberty has been understood as freedom from government action, not entitlement to government benefits, since the founding era 2. Precedent is distinguished because those cases (such as Loving) involved absolute prohibitions (criminalization) on private action associated with marriage 3. Says "dignity clause" doesn't exist, and humans can't lose dignity or have it bestowed by the government, it is inherent in the value of human life (for example, slaves did not lose their human dignity) 4. Threat now to religious liberty 5. Locke = freedom from gov; liberty = freedoms exist outside of government Under this view, only wrongly decided in states that don't offer civil unions

Miami Herald v. Tornillo

A newspaper published critical editorials about a candidate for the FL House of Reps, and proceeded to decline to print the appellee's replies, violating the FL Right to Reply statute Does a statute granting a political candidate a right to equal space to reply to criticism and attacks on his record by a newspaper violate the guarantees of a free press? Yes, the FL right to reply statute is unconstitutional 1. Statute operates a command in the same sense that a statute might forbid publishing 2. Might have to forgo publishing other pieces as a financial matter 3. Even if no additional costs and the paper is not forced to forgo publications to include the reply, intrudes into the functions of editors: choice of material is an exercise of editorial control and judgment Cuts against, but doesn't over-rule, Red Lion

Citizens United v. FEC

A non-profit corporation wanted to place a documentary about Hillary Clinton on-demand within 30 days of the 2008 primary, but feared to do so due to the ban on corporate-funded independent expenditures (electioneering ban) within this period before an election Corporations have free speech rights; the provision impermissibly distinguishes on the basis of the identity of the speaker 1. Holdings a. Overturns Austin by rejecting a direct restriction on independent expenditures of funds for political speech by corporations and unions b. Upholds the disclaimer and disclosure provisions i. While they may burden the ability to speak, they impose no ceiling on campaign related activities ii. As-applied challenge is available if a group could show a reasonable probability that disclosure of names will subject them to threats and/or harassment iii. Holds corporations and elected officials accountable 2. Rejected government interests a. Antidistortion: no limiting principle, could allow congress to ban speech by media corporations b. Corruption: more speech, not less is the governing rule; the categorical bans that Congress has created are asymmetrical to preventing quid pro quo corruption c. Preventing dissenting shareholders from being compelled to fund corporate speech: would still apply to media corporations Stevens - dissent 1. Precedent shows that speech can be regulated differentially on account of the speaker's identity when identity is understood in categorical or institutional terms 2. Original understanding a. Business corporations were not seen as facilitating associational or expressive ends b. History of restrictions on corporate and political spending goes back to 1907 Tillman Act (prohibited corporations giving to congressmen—ban still exists) 3. Antidistortion a. When a corporation speaks, merely derivative speech b. Suppressing corporate speech does not prevent anyone from speaking in his own voice c. Can generate the impression that corporations dominate our democracy Notes 1. This case is a big deal because it says that corporations have free speech rights! a. Issue because the 1st amendment presumably applies to persons; however, there is no textual limit to people b. Stevens argue that the press is expressly protected regardless of whether or not corporations receive this privilege; Randy: but the Amendment might have been regarding to printing—thus, not special protection under originalist view 2. Corporations have the most to lose by legislation, but the least means to be heard? a. Supposed to go through political process/lobby for protection, but seem corrupt if they get special protection b. Tension between not letting businesses sue for economic protection and political process

Lorillard Tobacco v. Reilly

AG of Massachusetts created regulations governing the advertising and sale of cigarettes, smokeless tobacco, and cigars 1. Outdoor regulation prohibiting smokeless or cigar advertising within 1,000 ft radius of school or playground is unconstitutional a. Fails (4) of Central Hudson b. Broad sweep, in combination with zoning laws, would prevent advertising in 87-91% of Boston; would effectively prevent advertising to the adult consumer c. Also found unconstitutional a prohibition on indoor advertisements that could be seen from outside - safety concerns of convenience stores, want people to see in 2. Prohibition on indoor, point of sale advertising for smokeless tobaccos and cigars lower than 5 ft from the floor is unconstitutional a. Fails (3) and (4) of Central Hudson b. Does not advance goal, and blanket height restriction is not a reasonable fit (kids could "look up") 3. Barring the use of self-service displays, requiring the that tobacco products be placed out of reach of all consumers in a location accessible only to salesperson is constitutional a. Content-neutral; regulating for reasons unrelated to the communication ideas b. Preventing underage kids from tobacco is a legitimate state interest Kennedy - concur Central Hudson gives insufficient protection to truthful, non-misleading commercial speech Thomas - concur 1. When the gov. seeks to restrict truthful speech in order to suppress the ideas it conveys, strict scrutiny should apply 2. No philosophical or historical basis for asserting that commercial speech is of lower value than noncommercial speech

Adkins v. Children's Hospital

Act passed in DC to fix the minimum wage for women and children A statute which prescribes payment solely with relation to circumstances apart from the contract of employment, the business affected by it, and the work done under it, is the product of a naked, arbitrary exercise of power that is unconstitutional Notes 1. Distinguished from Muller on the basis that Muller was a health and safety law, Adkins is not except in a general way that applies to everyone 2. True purpose is class legislation: helping sub-set of populous as opposed to others; was thought not within the competence of a general legislature, legislating on behalf of everyone

Muller v. State of Oregon

Act passed limiting the number of hours a woman could work in a mechanical establishment, factory, or laundry to 10 hours a day; violation was a misdemeanor Falls within state's police powers: Physical difference between women and men justifies a difference in legislation that is Constitutional Notes 1. Shows that the liberty to contract can be regulated where there is substantial evidence of a public health problem 2. Part of a pattern of realism cases based on "junk science," relied on Brandeis brief ("realism" facts opposite of "formalism" rules)

Pierce v. Society of the Sisters

Act required parents to send children between 8 and 16 years to public school The Act unreasonably interferes with the liberty of parents to direct the upbringing and education of children under their control Decided on economic liberty ground, but reinterpreted as personal liberty case

Stanley v. Georgia

Agents found films of obscene material in P's home when searching for bookmaking activity; P charged under GA law for the possession of obscene matter The 1st and 14th Amendments prohibit making mere private possession of obscene material a crime. While the states do retain broad power to regulate obscenity, that power does not extend to mere possession by the individual in the privacy of his own home 1. Roth: Obscenity is not within the area of constitutionally protected speech or press; thus, states may regulate it as they see fit a. Distinguished from this case on the basis of public dissemination/action 2. Really a protection of liberty: Both spatial and decisional aspects of privacy are present— privacy of home, and freedom of thought 3. Rejected state interests a. Controlling the moral content of the mind b. Exposure to obscene materials may lead to deviant sexual behaviors or crimes of sexual violence c. Necessary incident to the statutory scheme prohibiting distribution 1. This is really a privacy case, but is lined up with the 1st Amendment as part of the re-characterization by the court of cases as being firmly rooted in theConstitution 2. Unlike Griswold, there is a distant relation to the 1st Amendment here: however, this is all about an audience's right to hear - textual problem, not about right to speak (also the case in Red Lion); Randy: "typical WN court move" that completely ignores the text of the amendment 3. ****if this is the case, why is distribution still prohibited

Buckley v. Valeo

Are the disclosure requirements (given as a less restrictive alternative to contribution prohibitions) overbroad due to their application to minor parties and independent candidates? No 1. Held to "exacting" scrutiny: strict test is necessary because compelled disclosure has the potential for substantially infringing the exercise of 1st Amendment rights; however, free functioning of our national institutions if a sufficient gov. interest 2. Gov. interests: a. Disclosure provides the electorate with info. about where the political campaign $ comes from and how it is spent by the candidate; aids voters in evaluating candidates b. Deters actual and the appearance of corruption by exposing large contributions and expenditures to the public c. Record-keeping, reporting, and disclosure are essential means of gathering the data necessary to detect violations of contribution limits 3. While it might deter some individuals from contributing, least restrictive means of curbing the evils of campaign ignorance and corruption 4. Does not foreclose as-applied challenges if there is evidence/factual showing of actual deterrence ("reasonable probability" that disclosure will cause threats/harassment/etc.), but rejects the need for a blanket exemption

Lochner v. New York

Bakeshop Act passed in NY that limited the hours a baker could work a week (included other provisions clearly related to health and sanitation) Is the state's regulation of an employer's ability to contract with an employee a fair, reasonable and appropriate exercise of the police power? No • o For example, a previous law setting a maximum hour of labor for mine workers was upheld - more direct connection to severe consequences Note "Menu of Three Options" 1. Peckham (Majority): Rebuttable presumption in favor of the person/liberty; burden on the government to justify restrictions on liberty as non-arbitrary 2. Harlan (Dissent): Rebuttable presumption of constitutionality; burden on the challenger of the law to provide facts showing that it is arbitrary 3. Holmes (Dissent): Irrebuttable presumption of constitutionality; if any reasonable person thinks its okay, it is okay (upheld where there is disagreement); in favor of majoritarianism—Randy says it is an impossible standard to meet Randy thinks that the court is being "realistic," not formalistic; acting irrationally in regards to health and safety, but rationally as helping unions and big, commercial bakers—class legislation, however, was not allowed for this reason (see Adkins)

McConnell v. FEC

Bipartisan Campaign Reform Act enacted to limit loopholes in campaign finance law 1. Soft money restrictions: limits the amount of money that can be given to parties 2. Electioneering communications ban: fixed the "magic words" problem by banning broadcasts, cables, or satellite communications referring to a clearly identified candidate for federal office made within 60 days before a general election or 30 days before a primary election "Theme" of these laws: anti-circumvention Scalia - dissent 1. Soft money ban is constitutional; considered a contribution limit—corruption interest is not just "cash for votes" but also curbing "undue influence" or the appearance of that influence; regulates contributions, not activities 2. Electioneering communications ban is constitutional a. Express vs. issue advocacy is not a first principle of constitutional law; was due to Constitutional vagueness - this is specific enough b. Corruption interest is sufficient to justify this broader definition Campaign finance restrictions greatly favor incumbents and are truly about preventing criticism of the government; an attack upon the funding of speech is an attack upon speech itself; pooling financial resources for expressive purposes is part of the freedom of speech Thomas - dissent Why aren't anti-bribery laws sufficient for anti-circumvention? Notes 1. Majority: Congress rational at face value, assumes good faith is why the law was passed 2. Dissent: Skeptical of Congress, sees law/corruption justification as pretext to stop negative campaign ads (and therefore help the incumbents passing the law) Do you assume the proper motives (good faith) of the legislature, or should you be skeptical and look for pretext? Fn. 4 suggests that we should look for pretext in this area

Boy Scouts of America v. Dale

Boy Scouts preventing Dale, an openly gay man/activist, from being a scout leader The state interests in NJ's public accommodations law do not justify such a severe intrusion on the Boy Scout's right to freedom of expressive association—unconstitutional to require homosexual membership 1. Does the group engage in expression? Yes, BSA transmits a system of values 2. Would the forced inclusion of Dale significantly affect BSA's ability to advocate their views? Yes a. Court gives deference to BSA despite lack of explicit assertion in scout oath and law regarding sexuality or sexual orientation b. Could also be related to union cases: can't compel expression 3. Does NJ law "run afoul" BSA's freedom of expressive association? Yes a. Broad application of public accommodation law leads to an increased risk of 1st Amendment violation b. Distinguishes Jaycee based on whether enforcement of the statute would cause a material interference with ideas c. Rejects O'Brien because of direct effect on associational rights 4. Doesn't matter that homosexuality has gained greater societal acceptance: the 1st protects expression regardless of popularity 5. *****Randy - Note - what about Free Assembly right to get together with likeminded people? The issue with this is that it would seem to allow discrimination, so it has been watered down and avoided.******* Stevens - dissent Worried about pretext for (2). This is less of an issue for Jaycees, because they already have women involved - so forced inclusion isn't going to significantly affect their ability to advocate for their views (unless voting, but court rejected as stereotyping, which Randy questions as being realistic)

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

Burning cross placed on the front yard of an African American residence outlawed by a bias-motivated crime statute (content-based); could've been prosecuted under trespass The ordinance is facially unconstitutional because it imposes special prohibitions on speakers who express views on disfavored subjects 1. Distinguishes between content and viewpoint based legislation: viewpoint based requires taking sides and is a more egregious interference because it discriminates in favor of some views or against others; leads to the danger of censorship. The ordinance is viewpoint based! a. When the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of viewpoint discrimination exists b. Another valid basis for according differential treatment to event a content-defined subclass of proscribable speech is that the subclass happens to be associated with particular secondary effects of the speech 2. A general prohibition against fighting words would suffice as an adequate content-neutral alternative White - concur Would over-rule the statute on overbreadth grounds: • Allows someone to assert that a statute is overbroad, and therefore unconstitutional on its face, in that it reaches protected speech (prohibits a substantial amount of protected expression) • Exception to general standing: litigant may assert the rights of a 3rd party. Allows a challenger to point out how it may be unconstitutional in cases not before the court, even if the challenger's own conduct is not the type he is pointing out Note The court implements first amendment doctrines to protect what is in the constitution/ferret out censorship; suggests that the right itself might require made up law to be protected (that being enumerated itself is not enough) - thus, an argument in favor of unenumerated rights?

United States v. O'Brien

Burning of draft cards outlawed by statute; four individuals burned their registration certificated on the steps of a court Was the act of burning the registration certificate protected symbolic speech within the 1st Amendment? Not protected by the 1st; the cards substantially further a sufficiently important government interest and the statute is an appropriately narrow means of protecting this interest 1. Court rejects the proposition that all modes of communication of ideas by conduct fall within the 1st Amendment; however, doesn't doubt that in this specific case, his conduct had expressive elements 2. When speech and nonspeech elements are combined in the same course of conduct, a sufficiently important government interest in regulating the nonspeech element can justify incidental limitations on the 1st Amendment freedom 3. Test a. Within the Constitutional power of government? Yes; gov. interest in establishing a system of registration for military, necessary to raise and support armies. Authority through necessary & proper b. Furthers interest? Yes; draft card provides more than just notice, it provides proof, communication, reminders, etc. c. Content-neutral? Yes (see above interests - unrelated to expression) d. Narrowly tailored!

Stromberg v. California

CA code makes it a felony to display a symbol of opposition to organized government A statute which upon its face, and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of speech is unconstitutional; here, the statute might be construed to include peaceful and orderly conduct

Cleburne v. Cleburne Living Center, Inc.

CLC wanted to operate a group home for mentally retarded, but was required to obtain special use permit to do so (permit denied) 1. Rational basis is appropriate for legislation regarding the mentally handicapped because it is a characteristic that the government may legitimately take into account in a wide range of individuals a. Not the type of issue that judges should be meddling with (same considerations as economic regulation b. Goes to both judicial role and cost of litigation c. How could you distinguish mentally handicapped from other disabilities? Could all become suspect classes 2. However, the record does not reveal a rational basis for believing that the home would pose a threat to the city's legitimate interests; appears to rest on an irrational prejudice (animus) against the mentally retarded a. No other group would be required to receive a permit to operate home b. Can't let fear of prejudice (animus) control Marshall - concur The court actually applied heightened scrutiny, not the rational basis test of Williamson Optical under which the court 1. Would permit phases of legislation (one piece at a time arg.) 2. Wouldn't go through the record 3. Would presume Constitutionality Handicapped people, like negroes and women, have been subject to a history of discrimination and should therefore have heightened review

NAACP v. Alabama

Can AL require the NAACP to give over its general membership list as part of corporate law? No: The immunity from state scrutiny of membership lists which the Association claims on behalf of its members is here so closely related to the right of the members to pursue their lawful private interests privately and to associate freely with others to come within the protection of the 14th 1. Nexuses between: freedom of speech and assembly, and right to privacy and assembly 2. Substantial evidence here that the production order from the state would entail the likelihood of substantial restraint upon the freedom of association: risk of economic reprisal, loss of employment, threat of physical coercion, harassment/violence 3. ******2 types of fre association recognized: INTIMATE and EXPRESSIVE a. INTIMATE = same kinds of concerns as right of privacy, basically sub. Due process b. EXPRESSIVE = related to free speech, gather with others to convey a message Note - association is not assembly; intimate association is unenumerated

Brown v. Board of Ed.

Cases from KS, SC, VA, and DE in which minors are seeking the aid of the court to obtain admission to the public schools of their community on a nonsegregated basis In the field of public education, the doctrine of separate but equal has no place; separate educational facilitates are inherently unequal and deprive plaintiffs of equal protection under the 14th Amendment 1. Findings in these cases that the schools were equalized in regards to tangible factors, thus looked to effect of segregation itself on public education 2. Education now the most important function of state and local governments, doubtful child could succeed without 3. Intangible considerations: feelings of inferiority Notes 1. Plessy is not outright reversed, in a sense it is just distinguished; however, all separate but equal is struck down citing Brown 2. Is Brown enforcing social rights? Outside of bounds of Constitutional authority for court to force association; argument is, however, that by enforcing segregation the government is interfering with social rights! 3. Implicit unhappiness with the way Brown was reasoned because it rested on social science - possible way to get all justices to sign on

Ezell v. City of Chicago (7th Cir.)

Chicago ordinance mandates one hour of range training as a prerequisite to lawful fun ownership, yet prohibits all firing ranges in the city Applies framework from 1st Amendment cases 1. If the gov. can establish that a challenged firearms law regulates activity falling outside the scope of the 2nd Amend. right as it was understood at the relevant historical moment, then the regulated activity is categorically unprotected a. Looks to public meaning at the time of the 14th Amendment, because that is what incorporates the Amendment to the states 2. If not, rigor of judicial review will depend on how close the law comes to the core of the 2nd Amend. right and the severity of the law's burden on the right a. A severe burden on the core right of armed self-defense will require an extremely strong public-interest justification and a close fit between the gov.'s means and ends b. Laws regulating activity closer to the margins of the right and modest burdens on the right may be more easily justified 3. As-applied: a. "Law-abiding, responsible citizen" comes closer to implicating the core of the right, vs. domestic-violence prohibition where intermediate scrutiny was okay b. City must establish a close fit between range ban and actual public interest, and that the public interest is strong enough to justify so substantial an encumbrance on individual 2nd Amend. rights (not quite strict scrutiny, but more than intermediate) 1. "A smoking gun" in bad faith legislation - court could've looked for pretext like in City of Cleburne 2. Analogous to content-based restrictions because the legislation is aimed at guns 3. In Teixeira (2016), 9th Circuit struck down a ban on gun stores within 500 ft. of a residence - followed Sykes approach despite opinion being written by O'Scannlain (didn't apply the undue burden framework of Nordyke)

McDonald v. City of Chicago

Chicago ordinance prohibiting possession of firearms unless valid registration, and continues to prohibit registration of most handguns—effectively banning handgun possession by almost all private citizens Does the individual right to keep and bear arms apply to the states? Yes, the 2nd Amend. protects a right that is fundamental from an American perspective, and thus is incorporated to the states via the Due Process Clause of the 14th Amendment 1. Declines to reconsider Slaughterhouse a. Notes that petitioners are unable to identify the clause's full scope; Randy—why should they be able to? Shouldn't it be confined to the facts of this case? ***Notes that the P or I Clause would solve this issue. b. For many decades the question of the rights protected by the 14th Amendment against state infringement have been analyzed under Due Process Clause 2. Uses Glucksburg approach to incorporation a. Asks if a particular BOR guarantee is fundamental to our scheme of ordered liberty and system of justice—points to Heller as evidence that self-defense is a basic right, deeply rooted in Nation's history and tradition b. General observations about progression of incorporation. Court has abandoned... i. Reluctance to hold rights guaranteed by BOR to meet requirements for Due Process ii. Watered-down, incongruous application of the right to state 3. Historical, not originalist opinion Thomas - concur The right to keep and bear arms is a privilege of American citizenship that applies to states through the 14th Amendment's Privileges or Immunities Clause; see pg. 9 Stevens - Dissent 1. Tries to distinguish substantive due process from normal incorporation cases 2. Says that this is a substantive due process clause case, and the "right to keep and bear arms" is not an aspect of the 14th Amendment "liberty" a. Personal liberty can exist without necessary relationship to the text b. Views the 2nd Amendment as a federalism provision protecting states (inconsistent w/Heller view), so basically irrelevant to the 14th 3. Liberty approach to substantive to due process a. Disparages Glucksburg—means that the only rights that are protected are the ones that already existed, and those rights probably don't need protection anyways (Randy seems to agree with this) b. History can be a starting point, but should not be a definitive ending point c. ****Says liberty on both sides of the issue because firearms threaten liberty Addresses majority "incorporation" perspective; the right to keep and bear arms is not a fundamental right, and therefore should not be incorporated Breyer - dissent 1. Views the 2nd Amendment to be similar to the 10th, perverse to apply to the states 2. Fundamental: history is inconclusive about the status of the right, but states have been regulating it forever 3. Requires empirical determinations and interest balancing to scrutinize, the police power requirement is always satisfied; therefore, should be left to the legislature

Ashcroft v. Free Speech Coalition

Child Pornography Prevention Act of 1996 prohibited sexually explicit images that appear to depict minors but were produced without using any real children In Ferber, the Court upheld a prohibition on the distribution and sale of child pornography (sexually explicit material involving children that was not obscene), as well as its production. Basis 1. Act intrinsically related to the sexual abuse of children 2. Circulation of the pornography harms the child's reputation and well-being 3. Traffic was an economic motive for production 4. Difficult to identify both the child involved and the person who created the pornography Over-ruled on overbreadth grounds 1. Distinguishes Ferber on the basis that the Act does not require involvement of real children, and thus does not implicate the prohibited category of child pornography a. Statute forecloses an alternative that helped make Ferber constitutional 2. CPPA reaches beyond obscenity and makes no attempt to conform to Miller a. The prospect of crime does not justify laws suppressing speech b. The causal link to child abuse is contingent and indirect here; mere tendency of speech to encourage unlawful acts I insufficient to ban, must be advocacy directed at inciting and likely to do so under Bradenburg

Church of Lukumi Babalu Aye v. City of Hialeah

Church leased land in FL and announced plans to establish a house of worship as well as a school, cultural center, and museum with the goal of bringing the practice of the Santeria faith, including its ritual of animal sacrifice into the open. City council passed 5 resolutions to prevent actions by the group. A law that is not neutral and not of general application must be justified by a compelling gov. interest narrowly tailored to advance that interest (strict scrutiny). Not met here 1. Neutral: Goes to purpose, object of law not to infringe upon or restrict practice because of their religious motivation a. Not neutral here, almost the only conduct subject to the ordinance is the religious exercises of the church members 2. General Applicability: Goes to form, Categories of selection apply widely/generally (despite incidental selectiveness) b. Not generally applicable here, fails to prohibit nonreligious conduct that endangers interests in a similar or greater degree than the sacrifices (underinclusive); also provides for numerous exceptions for basically all but the church's practices 3. No narrowly tailored solution to further compelling gov. interest Test designed to look for pretext: (1) Over and under inclusive purposes supposedly being served (evidence within the statute and without) and (2) Applicability

United States v. Stevens

Congress enacted a statute criminalizing the commercial creation, sale, or possession of certain depictions of animal cruelty—did not address underlying acts harmful to animals, but only portrayals of such conduct; legislative background was focused primarily on the interstate market for crush videos (typically prohibited by all states); this case, however, involved animal fighting The statute is substantially overbroad, and therefore unconstitutional; while crush videos and dogfighting videos might be intrinsically related to criminal conduct or analogous to obscenity, statute is not narrowly tailored and applies to depictions of protected activities 1. Rejects a test that would balance the value of a category of speech against its societal costs a. Ferber was more than just a balance of the compelling state interest of protecting children from abuse and the de minimis value of porn b. Market for child porn was intrinsically related to the underlying abuse (proscribale speech—integral to criminal conduct) 2. The exceptions clause, mimicking Miller, is not narrow; "serious" makes the threshold high to fit into one of the enumerated categories a. Underlying concern about hunting culture b. Could explain both why the statute was written, and why it was over-ruled 3. Even though the Executive said it would only apply the statute to acts of extreme cruelty, promise to exercise prosecutorial discretion is not sufficient protection; gives statute "natural reading" Alito Dissent 1. Ferber test should apply: a. Child porn involves the commission of a crime that inflicts severe personal injury to the children involved b. Underlying crimes could not be effectively combatted without targeting the distribution of child porn c. Lack of value 2. As applied to crush videos a. Infliction of severe physical injury required to make the video b. Criminal acts cannot be prevented without targeting the creation and sale of videos c. Harm > value 3. As applied to dog fighting a. Recording the actual commission of a crime involving deadly violence b. Crime cannot be effectively controlled without targeting the videos due to the low-profile, clandestine industry; videos essential to success of the subculture c. No appreciable social value, significant harm

United States v. Carolene Products

Congress passed the Filled Milk Act, which prohibited the shipment in interstate commerce of skimmed milk compound with any fat or oil other than milk fat The presumption of Constitutionality would be sufficient to uphold the act, but affirmative evidence provided by Congress further sustains the statute 1. Discrimination claim: the 5th Amendment has no equal protection clause (back in 1938 it did not yet have one), even that of the 14th does not compel the legislature to prohibit all like evils 2. Fact-based inquiry: The existence of facts supporting the legislative judgment is to be presumed, unless the existence of a rational basis for the legislation depends upon facts "beyond the sphere of judicial notice" a. Can be challenged by showing the court that those facts have ceased to exist b. Constitutionality of a statute valid on its face may also be assailed by proof of facts tending to show that the statute as applied is so different from others of the class as to be without the reason for the prohibition Footnote 4: The presumption of constitutionality does not apply if legislation... (1) Violates an express prohibition of the Constitution, such as those in the Bill of Rights; (2) Restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation; or (3) Adversely affects discrete and insular minorities who cannot be expected to protect themselves in the democratic process Notes Suggests that a fact based inquiry is required by due process 1. Would deny due process to exclude facts that would disprove the statute 2. Courts still take evidence; the burden is now just on the challenger to show irrational: Traditional Rationality Approach (different than rational basis) a. Presumption affirmed in the body of the case b. Narrower presumption (heightened scrutiny) in footnote 4 3. First time tiers of scrutiny introduces

Bailey v. Alabama

Criminalized the act of quitting your job; exposed a loophole in the 13th Amendment which permits involuntary servitude as punishment for crime (in reality, south was using in an attempt to recreate the conditions of slavery) Unrealistic as to whether the statute is addressing fraud or not; unconstitutional 1. Meaning of involuntary servitude is larger than slavery itself 2. Compulsion of service that statute inhibits under "guise of contract" Holmes - dissent It is not slavery to be required to work for punishment; hard labor is a valid punishment for crime; if you can be civilly liable, you can be criminally liable as well

D.C. v. Heller

DC Law generally prohibits the possession of a handgun; lawfully owned firearms must be unloaded and dissembled or bound by a trigger lock or similar device. Police officer registered for handgun he wished to keep at home, District refused Does the 2nd Amend. Protect an individual right? Yes: The 2nd Amend. Protects an individual right to keep and bear arms. Thus, the DC law is unconstitutional 1. Methodology of opinion: ORIG. PUBLIC MEAN. a. Evidence of word usage in context i. Communicative content of the text at the time it was enacted ii. Includes bare semantic meaning of words, but also context, implications, presuppositions, etc. b. Evidence after the fact i. Goes all the way up the Civil War, seeking evidence of a change in usage ii. Looking for evidence of change in usage. Randy admits that you do start seeing collective usage in 1830s, but none from the time of the founding. If anything, protected individual right perhaps with one end being to protect the militia, but still includes individual right to keep and bear arms 2. Operative Clause a. "Right of the people" refers to all members of the political community b. "Bear arms" only had purely military/idiomatic meaning when followed by "against" c. Codified a pre-existing right to self-defense 3. Prefatory Clause: serves a clarifying function but does not limit or expand the scope of the operative clause 4. Post-Ratification Commentary: protects an individual right necessary for self-defense 5. Wide range of permissible restrictions exist a. Concealed weapons, possessions by felons, mentally ill, laws forbidding carrying in sensitive places, laws imposing conditions and qualification on commercial sale b. ***refused to look at the historical understanding, instead relied on tradition --- this is a move to CONSTRUCTION, which SCALIA supposedly rejected*** c. Randy: but the evidence isn't really there to tell us the scope of the right was so restricted! Scalia made up to prevent opinion from becoming too radical Stevens - dissent "Special individual right reading": ---- USES FRAMER'S INTENT ORIG. --- The 2nd Amendment only protects the individual right to possess and use guns for military-relate purposes while in a militia. --- Odd because the only way it could be violated is if an individual in the select militia was prohibited from having a gun ... Randy: minimizes switch in theory, "surely it protects a right that can be enforced by individuals." Uses "framer's intent" instead of originalism Argues this is a collective right of the states • Counter - the Founders knew how to provide rights to the States in the BoR (see 10th Amendment), so why would they not use such language in the 2nd Amendment? Breyer - dissent Would adopt an interest-balancing test to decide whether a law infringes the right protected by the amendment 1. Strict scrutiny doesn't work because a state's concern for the safety and lives of its citizens is always a valid and compelling gov. interest under Salerno 2. Would ask: Does the statute burden a protected interest in a way or to an extent that is out of proportion to the statute's salutary effects upon other important gov. interests?

Griswold v. Connecticut

Douglas - majority Appellants found guilty as accessories for providing contraception to a married couple The statute forbidding the purchase of contraception concerns "a relationship lying within the zone of privacy created by several fundamental constitutional guarantees" and is therefore unconstitutional 1. "...specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance" 2. Various guarantees create zones of privacy a. 1st Amendment b. 3rd Amendment: Prohibition against the quartering of soldiers in any house in time of peace without consent of the owner c. 4th Amendment: Right against unreasonable searches and seizures d. 5th Amendment: Self-Incrimination Clause e. 9th Amendment Douglas tries to make the right to privacy fit within category 1 of fn. 4 of Carolene Products because he wrote the majority of Williamson 10 years prior to this opinion 1. Key move: distinguishing between economic and personal liberty 2. Both distinguishes Lochner, and affirms Williamson Instead of across the board scrutiny, across the board deference (with exceptions) 1. Exception 1: Fn. 4 Categories—problem with this textually is the 9th Amendment, until US Public Workers v. Mitchell essentially does away with it 2. Exception 2: Freedom of speech 3. Exception 3: Griswold—going beyond footnote 4; not an "approved" move, but the Supreme Court makes it anyways a. Political conservatives have stuck with the fn. 4 understanding for Williamson qualified b. Progressives stand for Williamson with fn. 4 + (+ is questioned, and Randy ridicules) Term of "privacy" is ambiguous 1. Could mean private space, like a home; or a private decision/matter 2. Term "liberty" likely rejected due to economic liberty references/Lochner WN Court "barely mentioned the text of the Constitution"; "hallmark of WN court era" that has been changed" 1. Credit to Scalia via Kagan tribute at GMU 2. Brown forward, the text "fell away," making the court's results vulnerable 3. Kennedy writes like the WN court Goldberg - concur 1. "bombshell opinion" 2. The 9th Amendment provides support for the court's conclusion that the right to privacy in an unenumerated, protected right 3. Even though the 9th Amendment only applies to federal rights, it's evidence that other rights can be retained by the people 4. "While this Court has had little occasion to interpret the 9th Amendment, '[i]t cannot be presumed that any clause in the constitution is intended to be without effect'" (quoting Marbury) Harlan - concur The proper inquiry is whether the statute infringes the Due Process Clause of the 14th Amendment because it violates basic values implicit in the concept of ordered liberty: standard later adopted by the court for substantive due process Black - dissent 1. "Asserting fn. 4" 2. Privacy is a broad, abstract term that can be shrunken in meaning but also expanded as a constitutional ban on many things --- Majority is just replacing words with more general words to change the meaning 3. Due process argument fails because it allows judges to make determinations of Constitutionality based on their own appraisal of what laws are unwise or unnecessary 4. 9th Amendment argument fails because it was intended to limit the federal government to the powers granted expressly or by necessary implication, and not act as a source of a judicial veto "Use of any such broad, unbounded judicial authority would make of this Court's members a day-to-day Constitutional convention"

Schenck v. United States

Espionage Act of 1917 (similar to the Sedition Act); circulated document that embodied the idea that the Conscription Act violated the 13th Amendment and was despotism in its worst form The question is whether the words 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 had a right to prevent 1. Question of proximity and degree (attenuation) ... as these cases develop: a. How immediate is the threat to government operations? b. What is the intent? c. How effective? 2. When a nation is at war, many things may not be said that would be okay during peace Notes - Randy Bad Tendency Test: Actions had tendency to effect the operations of the government (intent irrelevant) - no clear difference from clear & present danger test here

Abood v. Detroit Board of Education

Every employee represented by a union must pay into the union to prevent free-riding; union using money for political expression ("closed-shop union") ----- ****government employee union****** The freedom to speak includes the freedom not to speak. Paying dues to a union can be a condition of public employment; however, the union cannot use the charges, dues, or assessments paid by employees who do not support the political or ideological causes of the union for expenditures unrelated to its duties as exclusive bargaining representative 1. Opt-in vs. opt-out distinction: default requires the union to give the person the option to take affirmative action to opt-out 2. Normally held to strict scrutiny. Not clear that the court is taking either of the following approaches, but it could have: a. Gov. has compelling interest in promoting compelling bargaining and requiring fees is a narrowly tailored solution that survives strict scrutiny, but requiring political expenses is not narrowly tailored b. Could also say that there is a content-neutral justification for collective bargaining Other Notes - the public sector unions are bargaining with the taxpayer, so this is a public matter; money is fungible argument; outsized union power because of public monopolies

Buckley v. Valeo (contributions)

FECA to regulate federal election campaigns 1. Created a contribution ceiling of $1,000 by individuals and groups to candidates 2. Expenditure ceiling $1,000 relative to a clearly identified candidate 3. Limit on a candidate's expenditures from his own personal funds 4. Ceiling on overall campaign expenditures 1. Government interests a. Equalization of speech is not a cognizable government interest: the concept is "wholly foreign" to the 1st Amendment, which exists to promote wide dissemination of adverse views b. Actual or apparent corruption is sufficient to limit contributions (not yet only quid-pro-quo) 2. Limits a. Contribution ceiling is constitutional i. While it restricts one aspect of freedom of political association, the sufficiently important gov. interest of limiting the actuality and appearance of corruption resulting from large individual financial contributions justifies the narrow restriction ii. Does not undermine to a material degree the potential for robust and effective discussion of candidate and campaign issues b. Expenditure ceiling is unconstitutional i. Meant to be a loop-whole closing provision, but too vague ii. Court construed "relative to" to words of explicit advocacy of election ("magic words"): "vote for, elect, reject, etc." c. Limit on a candidate's expenditures from personal funds is unconstitutional i. Using personal funds reduces candidate's dependence on outside contributions, thereby counteracting coercive pressures at issue in contribution ceiling ii. Wanting to equalize the playing field is not enough d. Ceiling on overall campaign expenditures is unconstitutional i. Purpose is to reduce the skyrocketing costs of elections ii. However, it is up to the people to retain control over the quantity and range of debate on public issues in a political campaign 1. Laws aimed at expenditures seemed to be aimed at conduct that is expressive, therefore content based (and in theory, strict scrutiny) • Expenditures: giving money to express your views; breadth of your ideas 2. Laws aimed at contributions are also aimed at conduct, but they are content neutral because they are aimed at the favor an individual could be seeking return • Contributions: giving for someone else to express their view that you might associative with; different amounts might = different level of intensity 3. Could have gotten rid of contribution limits with fn. 4, category 2: majority can't screw with the way that they become the majority! Randy: the opposite has happened in these cases, these laws get less scrutiny than others involving speech

Buchanan v. Warley

Facially neutral law meant to discriminate; ordinance passed in KY forbidding any colored person from moving into and occupying a residing upon a block where a greater # of houses are occupied by white people than by colored people State attempt to prevent the alienation of property to a person of color is not a legitimate exercise of the police power and is a direct violation of the 14th Amendment's prevention of state interference with property rights except by due process of law Notes 1. Today, case would be brought under equal-protection clause 2. This case shows that that the court can protect persecuted groups during periods of pervasive racism

Adarand Constructors v. Pena

Federal law requires that a subcontracting clause must appear in most federal agency contracts that includes a promise of additional compensation of the contractor if it hires a small business controlled by socially and economically disadvantaged individuals - presumption that minority fits category All racial classifications, imposed by whatever federal, state, or local government actor, must be analyzed by the reviewing court under strict scrutiny (5th Amendment "equal protection" via Bolling = strict scrutiny) Stevens - dissent If the majority is passing laws to help the minority, don't have to worry about the majority because they passed them! 1. An interest in consistency does not justify treating differences as though they were similarities (invidious discrimination is an engine of oppression, vs. benign race-based preferences reflect a desire to foster equality in society) 2. Congruence between federal government and state governments ignores important practical and legal differences a. Congress is a co-equal branch entitled deference b. Congress is the only law-making body that represents the will of the Nation Notes 1. If you try to get certain results by going beyond the text, might outsmart yourself down the road 2. "Slaughter-house" all over again

Bowers v. Hardwick

Georgia statute criminalizing sodomy (neutral application, not specific to homosexuals) No fundamental right to engage in sodomy 1. A liberty is fundamental when it is a. "implicit in the concept of ordered liberty" (Palko) or b. "deeply rooted in this Nation's history and tradition" (Moore v. East Cleaveland) 2. Because of the deep history of criminalization of sodomy at common law, clearly not the case 3. Distinguishes precedent on the basis that there is no connection between category of family, marriage, or procreation, and the asserted right (homosexual activity) 4. Court accepts the argument that rational basis inquiry is sufficiently satisfied by Georgia's belief that sodomy is immoral and unacceptable; the courts would be "very busy indeed" if they were to hold morals legislation unconstitutional The court 1. Narrowly defines the right, and then 2. Uses the historical test ("operative question") It can't have been a right if throughout our history it's been crimalizated. Here, looks specifically at the history of criminalization of the right - as opposed to a history of existence of the right itself Blackmun - dissent 1. This is really a right to privacy case 2. Precedent has recognized a privacy interest in a. Decisional (private matters): certain decisions that are properly for the individuals to make; i.e., Roe b. Spatial (private space): certain places without regard for the particular activities in which the individuals who occupy them are engaged Brings to the floor the ambiguity of the word privacy 3. Further, state must have secular reasons to police - if the only reasons are religious, cuts against the law Stevens - dissent 1. Traditional view that practice is immoral is insufficient to uphold a law prohibiting the practice 2. Individual decisions by married persons, concerning the intimacies of their physical relationship are a form of liberty protected by the Due Process Clause, and it carries to unmarried persons 3. Statute is not limited to homosexuals textually, but would be patently unconstitutional when applied to married couples a. Means that homosexuals don't have the same interest in liberty (not possible under the 14th), or b. The policy of selective application is supported by a neutral and legitimate interest—no such belief here, implicit animus

Gitlow v. People of the State of NY

Gitlow indicted for criminal anarchy due to being the business manager who arranged for the printing of the Left Wing (Socialist) Manifesto 1. Freedom of speech and of the press are among the fundamental personal rights and liberties protected by the Due Process Clause of the 14th Amendment 2. State in the exercise of its police power may punish those who abuse this freedom by a. Advocating and encouraging a breach of its criminal laws, and b. Teaching or advocating that its citizens should not assist the US in prosecuting or carrying on war, and c. Advocating, advising, or teaching the overthrow of organized government by unlawful means While the term incorporation is not explicitly used, more clearly an example of incorporation than Chicago Burlington due to the explicit reference to the 1st Amendment; Randy believes that the earliest conception of true incorporation was footnote 4 Holmes - dissent 1. There was no present danger of an attempt to overthrow the government by force 2. "Every idea is an incitement" 3. if the beliefs expressed by the party are one day to be accepted in the community, they have to have the opportunity to be heard through free speech

Troxel v. Granville

Grandparents filed a petition to obtain visitation rights for their two granddaughters after their son, whom had divorced from his wife, committed suicide; court ruled in a compromise between the grandparents' and mother's wishes The visitation order was an unconstitutional infringement on the mother's fundamental right to make decisions regarding the care, custody, and control of her two daughters 1. Precedent a. Meyer: Right to establish a home and bring up children, and to control the education of their own b. Pierce: Right to direct the upbringing and education of children under their control c. Prince: Custody, care and nurture of the child reside first in the parents 2. Mother is a fit, custodial parent: not for the court to infringe on her right just because it thinks a better decision could be made Doesn't use the Glucksberg formulation, bases holding on precedent Thomas - concur Would apply strict scrutiny to infringement of fundamental rights. Randy: wouldn't work, because the legislature can't over-rule the court (counter-majoritarian difficulty?) Scalia - dissent 1. Concedes that the right exists as originalism (right of a parent to direct upbringing of children is among the unalienable rights in the DOI and the other rights retained by the people in the 9th) 2. However, the right is not mentioned anywhere within the text of the Constitution, and is therefore outside of the competency of the judiciary to determine 3. Further, the precedent that the court relies on is from an era that is full of substantive due process holdings that have since been repudiated - too weak to claim stare decisis Common move of judicial conservatives: Shift from the meaning of the text to the proper role of judges in enforcing that meaning (we see it again in Sebellius)

Romer v. Evans

Kennedy CO Amendment 2: Prohibited protected status based on homosexual, lesbian, or bisexual orientation Violates the Equal Protection Clause; "Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else ... a state cannot so deem a class of persons a stranger to its laws" 1. Breadth of amendment 2 is too far removed from particular justifications (such as protecting social rights like freedom of association) 2. Broad and undifferentiated disability on a single group with a lack of rational basis to legitimate state interest - inevitable inference that disadvantage is imposed is born of animosity towards the class of persons affected 3. Randy rejects arg as bad that only recourse would be to amend Constitution or pass laws of general applicability 1. Rational basis in that homosexuality is criminalized in many states and it is within the legislature's judgment that acts of homosexuality are what's bad - historical ability to regulate morals 2. Compares homosexuality to polygamy and cruelty to animals (legislation based on morals) Scalia - dissent 1. Tension between Kennedy and Scalia is morality 2. Scalia denies that moral disapproval = animus 3. Scalia: the democratic process determines what is moral, not the courts

United States v. Alvarez

Kennedy - majority 1. Alvarez lied about receiving the Congressional Medal of Honor at a public meeting as a board member of a governmental entity 2. Indicted under the Stolen Valor Act of 2005: criminalized falsely representing one's self as a recipient of such an honor (enhanced penalty under the Congressional claim) Does the 1st Amendment permit speech, merely on the basis of its falsehood, to be criminalized? No, act is unconstitutional/overbroad because not limited to circumstances in which the rights of someone else are being violated 1. Content-based restriction; thus requires "exacting" scrutiny 2. Always have required more than just falsity for liability 3. No link between the government's interest in holding in its highest respect and esteem those who have acted with extraordinary honor and preventing the dilution of that honor, and the claim: where is the evidence that fraudulent representation actually dilutes that honor? 4. Alternate remedies: Counterspeech and government-created databases listing medal winners Breyer - concur Suggests that the statute would be okay if narrowly tailored and insisted upon a showing that the false statement caused specific harm, or at least was material Alito - dissent 1. Overbreadth needs to be substantial before met (would just bring as-applied challenges; generally Constitutional, but unconstitutional as applied) 2. Falsity Debate: The Stolen Valor Act presents no risk at all that valuable speech will be suppressed, and false speech is not protected unless it is necessary to do so in order to protect good speech (because false speech itself is valueless) a. Here, the speech is verifiably false, b. Lacking intrinsic value, and c. Fails to serve any instrumental purpose that might be protected by the 1st 3. There's a lot of speech that doesn't violate the rights of others but is bad nonetheless because it inhibits the operation of the government (i.e., impersonating an FBI Agent, selling military decorations) said the law was a response to proliferation of false claims; the harm can be intangible or tangible 1001 prohibits false statements to gov regardless of pecuniary benefit showing, so why different here?

Gertz v. Welch

Lawyer sued a newspaper for falsely asserting that he had communist ties May a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor a public figure claim 1st Amendment protection against liability? No: So as long as they don't impose strict liability (must be a standard of negligence or below) states may define for themselves the appropriate standard for liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual; further, only allow recover for damages to compensate for actual injury 1. Legitimate state interest of compensating individuals for the harm inflicted upon them by defamatory falsehood, balanced against the 1st Amendment interest of avoiding self-censorship 2. Strong state interest than in public officials and public figures because... a. Private citizens don't have the same opportunities to remedy the falsehoods b. Private citizens haven't voluntarily exposed themselves to the public sphere Note: assumed a background of a different technology. Would be interesting to see how this analysis would play out now with the internet/social media available to virtually everyone 1. Falsity debate: "The 1st Amendment requires that we protect some falsehood in order to protect speech that matters" 2. Why negligence standard? a. Theory 1 (later doctrines dispute): Newspaper is at issue here, publishes a ton of stories - might be difficult to ensure that everything is 100% true b. Theory 2: Social issues are a matter of public importance and interest, private lives are not (randy thinks this is more likely what is going on, though the court does not explicitly say)

Plessy v. Ferguson

Louisiana law providing for separate railway carriages for the white and colored races; Plessy, 7/8 Caucasian, refused to sit in the Black section Origin of "separate but equal." 1. 13th: Segregation is not incident to slavery 2. 14th: Absolute equality of races does not mean the abolition of distinctions based on race; enforced separation does not give the black race a badge of inferiority that is the black choice to identify it as doing so. Rejects the argument that it holding would be extended to other cases (such as hair color) because every exercise of police power must be reasonable. Harlan - dissent 1. Source of "color-blind" Constitution. 2. The purpose of the law is exclusion, which thus interferes with the personal freedom of citizens. 3. Rejects the majority's reasonableness/limiting principle argument because courts don't generally get into questions of public policy and defer to the legislature

Board of Regents Univ. of Wisc. v. Southworth

Mandatory student fee goes towards student organizations, some of which express political views Viewpoint neutrality justifies the required fee and ensures the integrity of the program's operation 1. However, referendum that permits, by majority vote of the student body, for a given RSO to be funded or defunded may undermine viewpoint neutrality Distinction: You don't join a labor union to express political views, but for collective bargaining. Conversely, purpose of a university is to present diverse viewpoints. Thus, Abood provides insufficient protection

Miller v. California

Mass mailing campaign to advertise the adult sale of books; five unsolicited brochures containing sexually explicit pictures and descriptions received by a restaurant owner How is obscenity defined? Obscenity is not within the area of constitutionally protected speech or press (reaffirms Roth). State statutes designed to regulate obscene materials must follow these rules: 1. Must be limited to works which, taken as a whole, appeal to the prurient interest in sex (based on community standards) 2. Portray sexual conduct in a patently offensive way (community standards) 3. Do not have serious literary, artistic, political, or scientific value (objective/nationwide standard) The problem with a community standard is that movies would be filmed in places with lax obscenity laws and distributed to stricter places (generally the south); Randy: "community standard would work if governing public spaces"

Regents of UC Berkley v. Bakke

Medical School created two admission systems: one for "disadvantaged" candidates, self-identified by applicants. A prescribed number of students each year was selected from the special system, which did not require candidates to meet the 2.5 minimum GPA of other students Schools may not engage in a quota admission system based on a race; however, race may be a factor that graduate schools consider when making admission decisions, as long as it is part of an individualized consideration 1. Minimizes footnote 4: Rationale has never been invoked as a prerequisite to subjecting racial or ethnic distinctions to strict scrutiny (still relevant as to when Williamson Lee Won't apply) 2. Schools are engaging in the legitimate interest of attaining a diverse student body; academic freedom is a special concern of the 1st Amendment, within the realm of school expertise Rejected Interests 1. Reducing historic deficit of disfavored minorities in the medical field: Innocent individuals pay the price 2. Countering effects of societal discrimination: Rejects a 2-class theory, which would permit some people to be protected by the 14th while others are not, essentially putting all the weight on 1 individual (same theory behind the Takings Clause) 3. Increasing the number of physicians who will practice in under-served communities: The school is not the government body that should be making this determination, up to the legislature

Sherbert v. Verner

Member of 7th Day Adventist church fired because she would not work on Saturday, the Sabbath Day of her faith. Denied compensation benefits because she did not have "good cause" to reject suitable work offered Governmental action that substantially burdens a religious practice must be justified by a compelling gov. interest. SC may not constitutionally apply the eligibility provisions so as to constrain a worker to abandon his religious convictions respecting the day of rest. 1. Sherbert Test a. Does the law impose a (substantial?) burden on the individual's free exercise of religion? b. If so, is there a compelling state interest in the law that could not be achieved by alternative means? (strict scrutiny) 2. As Applied a. Yes: Ineligibility for benefits derives solely from the practice of her religion; must choose between following her religion and foregoing benefits, or abandoning her religion and accepting work b. No: State only claims filing of fraudulent claims and hindering the scheduling by employers of Saturday work, and did not try to demonstrate that there were no alternatives

Trinity Lutheran Church v. Comer

Missouri gives grants for pub/private schools and other non-profit entities to purchase recycled tire surface ---- excluded this church because it is a church --- church sought to redo playground surface for community benefit Roberts - Free exercise claim no denying generally available benefit because of religious status without strict scrutiny Here, the State's policy expressly discriminates based on the religious "status" of the school Churches get to use government functions (fire, safety, etc.) without issue No compelling interest here Gorsuch - concur Questions the Majority's distinction between "status" and "use"; saying 1st A protects free EXERCISE not INWARD BELIEF Questions Locke, which allowed for barring scholarship being used for theology degree Breyer - concur State can't cut off funds for health/safety of children because of religion Sotomayor - dissent Worried about separation between church and state Says funding the church = supporting the underlying religious exercise

O'Gorman v. Hartford Fire

NJ statute made it unlawful for any fire insurer to allow any commission in excess of a reasonable amount to any person for acting as its agent in respect to any class of such insurance It does not appear upon the face of the statute, or from any facts of which the court must take judicial notice, that in NJ evils did not exist in the business of fire insurance for which this statutory provision was an appropriate remedy 1. Presumption of constitutionality must prevail in the absence of some factual foundation on record for overthrowing the statute 2. Subject clearly within the scope of the police power; action of legislature and highest court indicates that evils did exist 1. Brandeis upholds the law by switching presumptions; realistic burden of proof, but switches the burden from Peckham to Harlan 2. Presumption of liberty presumption of Constitutionality

Central Hudson Gas v. Public Service Comm'n

NY Commission ordered electric utilities in the state to cease all advertising that promotes the use of electricity based on the finding that the system did not have sufficient fuel stocks to supply customer demands for the winter Unconstitutional restriction 1. Central-Hudson Test a. Is the expression protected by the 1st? (i.e., lawful activity and not misleading?) b. Is there a substantial governmental interest? c. Does the regulation directly advance the government interest asserted? d. Is the regulation not more extensive than necessary to serve that interest? Does not require least restrictive means, only "reasonable fit" 2. As applied here a. Yes: lawful and not misleading b. Yes: energy conservation, based on our dependence on energy resources, is a substantial state interest c. Yes: there is an immediate connection between advertising and demand for electricity d. No: Too broad; does not justify suppressing info. About electric devices or services that would cause no net increase in total energy use, or even divert demand from less efficient sources Opinion returns to Lochner, ignoring the state's broad discretion in imposing economic regulations. The test adopted by the court elevates protection of commercial speech to a level that is virtually indistinguishable from that of noncommercial speech

Marsh v. Chambers

Nebraska legislature opens each legislative day with a prayer led by a chaplain paid by the state Constitutional because of tradition 1. The court DOES NOT apply the Lemon test, instead relies on history 2. Since the founding of the US, practice of legislative prayer has coexisted with principles of disestablishment and religious freedom a. 3 days after Congress authorized the appointment of paid chaplains, the final agreement was reached on the language of the BOR b. Unlikely the men who wrote the 1st did not view the legislative chaplains and opening prayers as a violation of the 1st, as they engaged in the practice themselves 3. Precedent found okay... a. Everson: $ for school transportation b. Tilton: Beneficial grants for higher education c. Walz: Tax exemptions for religious organizations Brennan - Dissent Applies the Lemon test, and finds that the 1) purpose is religious, 2) effect is religious, and 3) that it fosters excessive entanglement between the gov. and religion Note Could potentially be reconciled with Lemon if viewed as 1) applying assistance to legislature, like "water," or 2) part of the legislature's internal rules/organization; or, a House Resolution does not equal a law, so it isn't covered by the Est. Clause

Branzburg v. Hayes

Newspaper under P's by-line described his observation of two residents synthesizing hash; refused to testify as to the identity of the individuals when subpoenaed by GJ Does requiring newsmen to appear and testify before state or federal GJs abridge the freedom of speech and press? No: The publisher of a newspaper has no special immunity from the application of general laws (cites Associated Press v. NLRB) 1. Similar to the idea of content-neutral 2. The public interest in news about crime obtained from undisclosed sources does not take precedence over the public interest in pursuing and prosecuting crime 3. Administrative difficulty: If this privilege did exist for the press, we would then have to decide who constitutes the press 4. Grand juries are important and the press can be regulated

Planned Parenthood v. Casey

O'Connor - plurality PA Abortion Control Act: Requires parental consent for a minor's abortion, spousal notification for married women, and a 24-hour waiting period Re-affirms the essential holding of Roe 1. "It is a Constitutional liberty of the woman to have some freedom to terminate her pregnancy" a. Shift in text from being about privacy to being about liberty b. Roe: abortion protected by right of privacy, strict scrutiny; Casey, constitutional liberty of the woman (Poe "rational continuum" like Souter in Glucksburg) - generally taken as a lesser protection 2. However, gets rid of the trimester framework. A state may enact rules and regulations designed to encourage a woman to make an informed decision prior to obtaining an abortion, regardless of what stage of pregnancy she is in 3. Undue burden standard: Law is invalid if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability The majority's analysis 1. Roe has in no sense proven unworkable 2. No evolution of legal principle has left Roe's doctrinal footings weaker than they were in 1973 3. While time has overtaken some of Roe's factual assumptions due to advances in medical care, attainment of viability remains the same critical fact 4. "The Court's power lies in its legitimacy" Randy's POV 1. Horizontal stare decisis only followed if it serves the interests/narrative of the court 2. "Dead" justices get to decide over the text 3. The Constitution is "law who governs those who govern us" 4. However, once the courts have adopted the doctrine "in good faith," i.e., adhering to the original meaning of the Constitution, stare decisis can be a good thing 5. We're all originalists when it comes to the clear principles in the text, litigation arises in vague areas 1. Constitution says absolutely nothing about abortion, and longstanding traditions have allowed it to be legally proscribed 2. Use rational basis 3. Same centrality to personal dignity could be applied to sodomy, polygamy, incest, suicide - all of which are equally "intimate" and "deeply personal" 4. "undue burden" is a unique concept - unclear rules that permits state to pursue its interest as long as it's not too successful

Chicago Burlington

Ordinance passed to widen Rockwell St. by condemning certain parcels of land owned by individuals and the Burlington Railroad (jury determined that compensation should be $1) States must provide just compensation for private property taken for public use (though court doesn't reach compensation issue) Notes 1. Known as the first case to incorporate a right from the BOR to the states (however, Randy disagrees because the case doesn't even mention the Takings Clause) --- says shows sub dp before Lochner 2. Very much like Calder: even within general powers there must be a limit, no free people's consent can be presumed, legislature's powers are inherently limited

Abrams v. United States

Pamphlet distributed by foreign nationals The plain purpose of their propaganda was to excite disaffection, sedition, riots and revolution Holmes - dissent Turning point for Holmes; inspiration for modern 1st Amendment law! Changed his mind because his friends started getting into trouble 1. Only immediate evil or intent should be restricted; the people here are pitiful and not very effective, therefore, the government is not justified in restricting their speech 2. Holmes's rationale for freedom of speech: while it is important for political effects, it is also a truth discovering mechanism! 3. "[T]he ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution." 4. Differences a. Increasing remoteness to alleged bad consequences b. Issue of intent c. Reasonable prospect that the people could have effected (marginality)

Gonzales v. Carhart

Partial-Birth Abortion Ban Act of 2003: Bans abortions when the death of the fetus occurs when the entire fetal head, or any part of the fetal trunk past the naval, is outside of the body of the mother On its face, the Act does not impose an undue burden on previability abortions 1. Legitimate interests of Congress a. Respect for the dignity of human life b. The effects on the medical community and on its reputation caused by the practice c. Lack of information given to the mother as to the abortion procedure until after it has taken place 2. Where there is medical disagreement, the court gives state and federal legislatures wide discretion a. No health exception is okay, although the court notes that congressional findings aren't dispositive b. Court has "an independent Constitutional duty" to review factual findings "where constitutional rights are at stake" Notes 1. If the right to an abortion is a fundamental right, does the undue burden test weaken protection of a fundamental right? The law probably wouldn't have been upheld under strict scrutiny. Risk of creating two tiers of fundamental rights? 2. None of the abortion cases are about the mother's life, it's a given exception. Post-Roe, health of the mother included the physical and mental well-being, meaning there was essentially a choice to abort at anytime. That's why this case/health exception was a big deal

Van Orden v. Perry

Primer Display of a monument inscribed with the 10 Commandments on the TX state capitol grounds after donation by the Fraternal Order of the Eagles. Litigation brought 40 years after donation. One of 17 monuments and 21 historical markers on the 22 acres surrounding capitol, commemorating the "people, ideals, and events that compose Texan identity" Rule Does not violate the Establishment Clause due to (1) the nature of the monument, and (2) the nation's history (court does not apply Lemon) 1. Acknowledges that the role played by the 10 Commandments in US heritage is common throughout America (depictions in SC courtroom, the Capital, and DOJ) 2. While the Commandments are religious, have an undeniable historical meaning. Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause 3. Distinguishes Stone on the basis that placement of the Commandments here is far more passive of a use, and Weisman on the basis that the individual walked by the statute for several years before bringing suit Note: Randy suggests that there was an underlying prudential reason for the court to decide this way—if ruled otherwise, could be read as authorizing a search and destroy mission of 10 Commandments on gov. property that have been there for a long time Breyer Concurrence *swing-vote from McCreary Relies on the context of the statute and the basic purposes of the 1st Amendment's Religion Clauses. The fact that the statute has existed for 40 years without litigation shows that it is unlikely to prove divisive; reaching a contrary conclusion could instead lead to hostility towards religion and encourage dispute. Further, tablets are part of display that communicates both a religious and secular message, and the setting provides a context of history and moral ideals Note - the 40 years should be irrelevant because constitutional violations don't become acceptable just because time passed... Note Court finds pretext, or reasons offered in bad faith (similar to Lochner). Like Babalu, facially neutral act of court, improper legislative history Scalia Concurrence There is nothing unconstitutional in a state's favoring religion generally Souter Dissent A gov. display of an obviously religious text cannot be squared with neutrality, except in a setting that plausibly indicates that the statement is not placed in view with a predominate purpose on the part of gov. either to adopt the religious message or urge its acceptance by others 1. Interprets the context of the statute very differently/lacking historical context. Believes statutes should be taken individually based on setting (separated) 2. Not dispositive that 40 years passed before suit—plaintiff has little financially to gain from bringing suit, but a lot to lose financially and might face social ostracism

Friedman v. City of Highland Park (7th Cir. 2015)

Prohibition on "assault weapons," including restrictions on assault rifles that have specific characteristics (pistol grip, etc.) or names (AR-15s, AK-47s) Does this prohibition violate the 2nd amendment rights recognized in Heller/McDonald? No, 1. Defers to the legislature 2. Says these weapons were not "common at the time of ratification" 3. THOMAS - Dissent from denial of cert. a. The 7th Cir. is upholding categorical bans on commonly owned guns b. Heller said not to leave up to legislative debate c. Heller said explicitly not to restrict to arms existing at the ratification d. Heller requires the guns regardless as to whether alternatives exist Randy - says his personal belief is that reasonable regulation = weapons that, when properly used in self-defense, create an unreasonable risk of harm to others (3rd parties)

United States v. Williams

Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 bans the collateral speech that introduces child pornography into the distribution network by prohibiting offers to provide and request to obtain child pornography Offers to provide or requests to obtain child pornography are categorically excluded from the 1st Amendment Souter dissent 1. Offers to engage in illegal transactions care categorically excluded from 1st Amend. Protection 2. Child pornography is a crime 3. Therefore, can prohibit the offer to participate in the crime Court dispenses with the real-child element in the underling subject (that was the line that Ashcroft held against Ferber) ***note - can't pander heroin, even if you don't have it, so same here

Lee v. Weisman

Public school in RI invited a member of the clergy to offer invocation and benediction prayers at part of the formal high school graduation (discretion granted by school district) Kennedy - Unconstitutional (does not apply Lemon) 1. Key Facts a. State officials direct the performance of a formal religious exercise b. Student attendance, while technically optional, is essentially obligatory; "law reaches past formalism" 2. Heightened concerns with protecting freedom of conscience from "subtle coercive pressure" in the elementary and secondary public schools a. Act of standing might make the dissenter feel as though she is participating in and approving of the prayer b. States may not place primary and secondary school children in position to protest to feel vindicated under the Establishment Clause 3. Distinguishes Marsh a. Atmosphere of opening legislature: adults are free to come and go b. In contrast, graduation is a formal exercise in which teachers and principals retain a high degree of control and students have no real choice but to submit Souter - concur Historical analysis of the drafting of the text of the clause, textualist; says TJ and Madison were separationist (who cares, they're two people and were in the minority on this issue) Scalia - dissent 1. Tradition is as old as public school graduation ceremonies themselves 2. Standing is not coercive. The historical coercion at concern behind the Establishment clause was coercion by force of law and threat of penalty 3. State officials have done nothing but invite clergy to the ceremony, are not involved in the prayer itself 4. Says that we live in society and haven't gotten to the point where sitting respectfully is so out of the norm

Reynolds v. U.S.

Reynolds charged with bigamy after his second marriage, despite having it sanctioned by the Mormon church he is associated with Bigamy may be outlawed despite its ties to the Mormon faith. To permit a criminal practice to continue because it is contrary to an individual's faith would "be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself" 1. History: Polygamy has always been odious among northern and western states, 2nd marriage void at common law. After the passage of the act establishing religious freedom, and after the convention recommended the religion addition to the BOR, the legislature of VA banned polygamy 2. Conduct vs. Belief: Laws can't interfere with mere religious belief and opinions but may with practices a. This distinction does not hold up over time b. Text of amendment says "the exercise," which implies conduct - not limited to expression of opinion/belief Notes What is the basis of prohibition here (source of police power)? 1. Bare moral disapproval? a. But does that not go against Steven's Dissent in Bowers, adopted by Kennedy in Lawrence? 2. Protective Arguments a. Women and children (but centuries ago, laws did not protect these categories) b. Men—equal distribution of women, otherwise men socially destructive 3. Equality

Snyder v. Phelps

Roberts - majority Westboro Baptist Church picketed, in a public street, the funeral of a soldier who died in Iraq after receiving prior approval from the city Should the family have been able to recover for IIED, or was the activity protected by the 1st Amendment? Westboro's speech was protected by the 1st Amendment (creates an exception to the tort of IIED) 1. Public issue a. Considered a public matter when: relating to any matter of political, social, or other concern to the community; is a subject of legitimate news interest inappropriate or controversial character is irrelevant b. Considered private when credit report (Dunn), video of employee engaging in sexually explicit acts (San Diego); private matters don't implicate the same constitutional concern because there is no threat to the free and robust debate of public issues 2. Not motivated by a private grudge a. Westboro actively engaged in these types of events before Snyder b. No pre-existing relationship or conflict between parties 3. Occurred on a public street: archetype of a traditional public forum Alito - dissent In this case, the 1st Amendment permits a private figure to recover for the IIED caused by a speech on a matter of private concern 1. Signs could be understood to suggest that Matthew was gay 2. Matthew was not a public figure; yet Westboro issued a press release to draw attention to the subject 3. Westboro also posted an online account addressing the family directly

Jackson v. City of San Francisco

Safe storage law requiring persons to carry gun on their person or keep in a locked box (or with a trigger lock) Are safe storage laws reasonable restrictions on 2nd Amend. rights? No, 1. Argues it does not prohibit guns, only regulates the manner of the use, making it more like a content neutral laws in free speech cases 2. Applies intermediate scrutiny? a. Gov. interest in preventing injuries from unlocked guns b. Only a minimal burden on 2nd A right c. ***therefore, appropriate fit 3. THOMAS - Dissent from denial of cert. a. This restricts use for self-defense in times where people are most vulnerable (example - old woman can't unlock gun fast enough if awoken in the middle of the night)

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

School districts assignment plans relied upon race to determine which public schools certain children attended; Seattle: white or nonwhite, Jefferson County: black or other No legitimate purpose, the counties are essentially engaging in racial balancing, and thus are acting unconstitutionally by returning to a pre-Brown world 1. Two interests qualify as compelling in affirmative action/education cases a. Remedying the effects of past intentional discrimination: never the case in Seattle b. The interest of diversity in higher education: uniquely important to higher education, context matters when applying strict scrutiny. However, diversity debate doesn't get engaged in because classifications aren't narrowly tailored to goal anyways 2. Race is a decisive factor in itself, used in a non-individualized, mechanical way that can have costs (notions of racial inferiority... cites Brown) Kennedy - concur There are instances when race can be factor/the government can have an interest in ensuring equal opportunity; however, must be a showing of necessity 1. It is okay to be race conscious if narrowly tailored 2. Can't lead to different treatment based on a classification that tells each student he or she is to be defined by race 3. What is objectionable is judging individuals based on race Benign policies that would be ok: strategic site selection, drawing attendance zones with recognition of demographics, allocating resources for special programs, recruiting students and faculty in a targeted fashion, tracking enrollments, performance, and other statistics by race

Bolling v. Sharpe

Segregation of public schools in DC The 14th Amendment does not apply to DC, so plaintiffs argued that separation deprived them of due process of law under the 5th Amendment Racial segregation in the public schools of DC is a denial of due process of law guaranteed by the 5th Amendment 1. No equal protection clause in the 5th Amendment; however, equal protection and due process both stem from ideal of fairness and are not mutually exclusive a. While the equal protection clause is more explicit of a safeguard, discrimination may be unjustifiable as it is violative of due process 2. Arbitrary deprivation of the liberty of negro children in violation of due process 1. Was it wrongly decided? 14th applied to states because needed a way for the federal government to tell states what to do, didn't need an amendment for congress to tell the federal government what to do 2. Due process may have always prevented irrational and arbitrary laws?

Raich v. Gonzalez (9th Cir.)

Seriously ill patient used medical marijuana every two waking hours for nearly eight years to treat more than 10 serious conditions, without which conditions might be fatal Federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering. Court applies Glucksburg 2-step 1. Asserted fundamental interest a. Right to make life-shaping medical decisions that are necessary to preserve bodily integrity, avoid intolerable pain, and preserve life, when all other prescribed medications and remedies have failed b. Raich's statement was not narrow enough because it did not include medical marijuana; court says that this is the right to use marijuana 2. Deeply rooted? a. Long history of use both medically and otherwise; took an about face with the passage of the Controlled Substances act in 1970 b. Rejects Raich's "emerging awareness" argument from Lawrence v. Texas i. No state permitted medical usage until CA in 1996 ii. Not obtained the degree of recognition (not fundamental or implicit in concept of ordered liberty) that private sexual conduct had by the time of Lawrence Notes 1. While a legal realist perspective might lead you to believe that the SC would have sided with Raich, the court decides thing on the basis of principle a. Principle of national power > sick individuals b. Results of a specific case are secondary to principle (narrative) c. Case-by-case realists: will use whatever in each case to fit within the larger picture - so need to figure out what the bigger picture is to argue effectively/win 2. Take-Aways a. Level of generality issue in formulating the right: each was individually accurate; thus required normative reasons for choosing 1 - can be outcome determinative b. Clash between Glucksburg and Lawrence; emerging awareness theory looked like another way to find a fundamental right; Lawrence was about liberty, not privacy, didn't apply strict scrutiny c. Lower court predicting what SC would do, Randy thinks they did so accurately

Debs v. United States

Socialist candidate for president indicted under the espionage act for a speech Jury instructed not to find the defendant guilty for advocacy of any of his opinions unless the words used had as their natural tendency and reasonably probable effect and intent to obstruct the recruiting service - satisfied Intent plays a greater role; probable effect (bad tendency)

Employment Division Dept. of Human Resources v. Smith

State of OR prohibits the knowing or intentional possession of a controlled substance unless prescribed by a doctor; peyote, used for NA religious ceremonies, listed on schedule 1; two employees violated, ineligible for benefits because discharged for work-related misconduct A law that is neutral and of general application need not be justified by a compelling gov. interest, even if it imposes incidental burdens on the exercise of religion 1. Declines to apply/distinguishes Sherbert: that test is okay in employment context because of the individualized assessment required 2. Law is content-neutral: not there to suppress the views of Native Americans; test has a very similar structure to O'Brien! 3. While the Sherbert philosophy was to protect minority religions, Smith allows for minority religions to be burdened

McCutcheon v. FEC

Statute imposes aggregate limits on campaign contributes: how much money a donor may contribute in total to all candidates or committees Unconstitutional: Aggregate limits do little, if anything, to further the legitimate government interest of preventing actual or apparent quid pro quo campaign corruption, while seriously restricting participation in the democratic process 1. Over-turns the holding in Buckley on this issue a. Only three sentences in opinion on the issue b. Disposed of constitutional objections on the basis that they are only a corollary of the basic individual contribution limitation to prevent circumvention - different anti-circumvention measures today 2. Government interest must be to prevent quid pro quo (direct exchange of an official act for money) corruption, or appearance of quid pro quo corruption 3. Alternatives are available, such as requiring contributions above the current aggregate limits to be deposited into segregated nontransferable accounts, or to only be spent by recipients Thomas - concur Would over-rule Buckley and subject the aggregate limits in BCRA to strict scrutiny Breyer - dissent 1. Plurality defines corruption too narrowly by removing efforts to garner influence over or access to elected officials or political parties 2. Speech does not exist in a vacuum: the 1st Amendment advances not only the individual's right to engage in political speech, but also the public's interest in preserving democratic order; even the appearance of corruption can make the public cynical and lose interest in participating

Whole Women's Health v. Hellerstedt

TX House Bill 2 included two provisions on abortion: (1) admitting privileges requirement, requiring the physician performing the abortion to have admitting privileges at a hospital within 30 miles from location, and (2) surgical center requirement, requiring minimum standards for abortion facility equal to ambulatory surgical centers Neither provision confers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a pre-viability abortion, constituting an undue burden on abortion access 1. Weighs the state interest against the undue burden the woman will face as a result of the regulation a. This is significant because the test was originally only focused on the burden b. Now, the burden can be less substantial if the interest is weak 2. Improper, underlying purpose of the law is to cause the burden! a. TX allows midwife to oversee childbirth at home despite 14x more likely fatality rate b. "many of the building standards . . . [h]ave such a tangential relationship to patient safety in the context of abortion as to be nearly arbitrary" Ginsburg - concur It is "beyond rational belief" that the provisions of the bill could genuinely protect the health of women Thomas - dissent 1. The court re-writes the undue burden test, requiring more than reasonable relationship to a legitimate stare interest 2. Tiers of scrutiny approach is increasingly a meaningless formalism based on policy preferences of the court 3. Should be one set of rules to adjudicate constitutional rights

Lawrence v. Texas

TX Statute made it a crime for two persons of the same sex to engage in sodomy (distinguished from statute in Bowers in that not gender-neutral) The statute is unconstitutional; the liberty protected by the Constitution allows homosexual persons the right to make the choice to engage in intimate conduct 1. Bowers failed to appreciate the extent of the liberty at stake - about more than sex, but private human conduct/relationships 2. No longstanding history of laws against homosexual sodomy 3. "Emerging Awareness" Perspective a. Laws and traditions in the past half century are of the most relevance b. Emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex 4. Since Bowers, Casey + Romer: Rejects equal protection argument because does not want to leave open the possibility that the statute would survive with neutral language 5. Adopts Stevens Dissent in Bowers a. The fact that a governing majority has traditionally viewed a particular practice as immoral is insufficient to uphold a law prohibiting the practice b. Individual decisions by both married and unmarried persons concerning intimacies of their relationship, even when not to produce offspring, are form of liberty protected by Due Process 6. The TX statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual O'Connor - concur 1. Wouldn't overrule Bowers, (was part of the majority there) however the statute is unconstitutional under the Equal Protection Clause 2. More searching rational basis when the law seems to be motivated by animus 3. Promotion of morality is insufficient to satisfy rational basis Scalia - Dissent 1. Should be following Glucksburg 2. Court is taking side in a culture war that should occur in the legislature 3. Law is rational because it is based on morality

Texas v. Johnson

TX Statute prohibits the desecration of a venerated object; D indicted for burning an American flag as part of a demonstration at the RNC (presented no imminent threat, but offended witnesses) Unconstitutional prohibition of the burning 1. Conduct is expressive under Spence: flag is "pregnant with expressive content," but must also consider context; overtly political nature of this conduct was intentional and overwhelmingly apparent a. There was an intent to convey a particular message b. There was a great likelihood that the message would be understood by those who viewed it 2. Asserted government interests a. Preventing breaches of the peace: no disturbance of the peace actually or threatened to occur b. Preserving the flag as a symbol of nationhood: this in itself is directly related to expression (i.e., content-BASED); it would be okay to burn the flag under some circumstances, such as getting rid of an old or damaged flag 3. Because content-based, fails O'Brien and must be held to strict scrutiny a. State interest: unity b. Principle of 1st Amendment: Government may not prohibit expression of an idea just because it's offensive c. There would be no limiting principle! Heckler's veto—the suppression of speech by the government because of the possibility of a violent reaction by "hecklers" (seems to limit the 1st to far) not present here

Loving v. Virginia (due process argument)

The statute also deprives the Lovings of liberty without due process of law in violation of the Due Process Clause of the 14th Amendment 1. Freedom to marry is a vital personal right essential to pursue happiness; basic civil right 2. "The 14th Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination"

Williamson v. Lee Optical

Three sections of Act dealing with the regulation of visual care challenged • Section 2: Unlawful for any person not a licensed optometrist to fit glasses • Section 3: Exempts from regulation all sellers of ready-to-wear glasses, makes it unlawful to advertise glasses • Section 4: Unlawful to have visual care within a store As long as the court can think of a proper reason that the law might have been passed, it is Constitutional; don't have to have hearings, the government doesn't have to give reasons 1. "Law need not be in every respect logically consistent with its aims to be constitutional" 2. Legislature can take reform one step at a time; equal protection only applies to invidious discrimination Randy - "Irrational" laws = means don't align with end "arbitrary" laws = treating people differently for no justified reason Notes 1. Constitutional if the court can formulate a rational basis; leaves only footnote 4 to scrutiny 2. Lower court too "realistic"; this is "formalistic" - going to uphold basically everything 3. Gets the court out of the business of policing economic decisions! 4. Reverses the body of Carolene products!!

Nebbia v. People of the State of New York

To address economic turmoil of dairy farmers, NY passed a statute fixing the price of milk at 10 cents for distributers and 9 cents for independent stores Constitutional; this price control, like any other regulation, is unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the Legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty Notes 1. Change of mind about the purpose of government 2. Public welfare can be benefited by helping some over others (opposite of Adkins presumption); it is up to the legislature to decide 3. Underlying purpose: The law in actuality benefited big milk distributers and hurt small mom & pop shops - reason to doubt purpose of law was because the distributor existed between the farmer and retailer; Randy believes irrational/means don't line up with ends

Town of Greece v. Galloway

Town in NY opens monthly board meetings with prayer (predominantly Christian prayers until litigation is brought) Kennedy - Constitutional. Rejects arguments that 1. Marsh did not approve prayers containing sectarian languages or themes a. The Congress that drafted the 1st would have been accustomed to invocations containing explicitly religious themes; continues in Congress today b. To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers to supervise and censure religious speech (far greater entanglement) c. Relevant constraint on content derives naturally from place at the opening of the session, where it is I meant to lend gravity to the occasion and reflect values i. If shows discrimination or disparagement over time, might be a problem ii. However, must look at prayer opportunity as a whole rather than single prayer 2. The setting and conduct of the town board meetings create social pressures that force non-adherents to remain in the room or even feign participation to avoid offending reps who will vote on matters citizens bring before the board a. Fact-sensitive inquiry considering the setting and audience b. Reasonable observer is acquainted with tradition of opening prayers c. Audience is not the public, but the lawmakers themselves (disputed by the fact that chaplain faces audience, back to lawmakers) d. Timing of prayer is during ceremony, nor policymaking e. Distinguishes Lee: i. Nothing suggests members of the public are dissuaded from leaving or arriving late ii. "Mature adults" are not readily susceptible to religious indoctrination or peer pressure Alito - concur Tradition hasn't required a secular prayer, would be hard to do so with such a diverse population, simply recommending a prayer to a chaplain could be seen as entanglement Would be impossible to accommodate all religions (example - "We thank the Creator, or the Creators, or no Creator, whatever ...") They can't help the fact that their town is predominantly Christian Thomas - concur 1. The Establishment Clause is a federalism provision that should not have been incorporated to the states a. Many states at the time of the founding had established churches b. Arg. for incorporation: Individual right to religion at the time of the founding 2. Historical coercion was by force of law and threat of penalty Kagan - dissent 1. Agrees with Marsh, but distinguishes the meetings a. "Hybrid": involvement by ordinary citizens despite legislative functions b. Audience: Chaplain turns back to legislature, directly faces citizens c. Content and character: Marsh prayers not used to advance belief; here, explicitly Christian 2. Religious neutrality, the gov. may not favor or align itself with a particular creed

Loving v. Virginia (eq. protection arg)

Two VA residents, a black woman and white man, were married in DC pursuant to its laws. Returned to VA, indicted for violating ban on racial marriage Law violates central meaning of Equal Protection Clause 1. Statute rests solely on distinctions drawn according to race and thus must be held to the most rigid scrutiny 2. There is no legitimate overriding purpose (implicitly endorsed white supremacy) independent of invidious discrimination Statute interferes with social rights (liberty to socialize)

Washington v. Davis

Two black police officers alleged that the officer application process violated due process under the 5th Amendment due to the use of "Test 21" • Test used generally throughout federal service and developed by Civil Service—less likely to have discriminatory intent because of this and the need for educated officers • Claimed that Test 21 had no relationship to job performance and had a highly discriminatory impact in screening out black candidates Disparate impact alone does not render a facially neutral statute unconstitutional. 1. However, a facially neutral statute can still have an underlying discriminatory purpose inferred from the totality of the relevant facts, including that the law bears more heavily on one race than another/discrimination is difficult to explain on nonracial grounds (see Yick Wo). 2. Think poll taxes and literacy tests: introduces invidious purpose into the analysis

McCreary County, KY v. ACLU of KY

Two courthouses placed copies of the 10 Commandments on the wall within; repositioned three times to fit asserted secular purposed (Foundations of American Law) Purpose must be taken in light of context, an implausible claim that the government purpose has changes is insufficient. 1. While a legislature's stated reasons will generally get deference, the secular purpose required has to be genuine, not a sham, and not merely secondary to a religious objective a. Limit to holding: Past actions need not forever taint any effort on part to deal with subject matter, nor can a sacred text never be integrated Constitutionally into gov. display on the subject of law or American history 2. Principle of neutrality: gov. may not favor one religion over another, or religion over irreligion 3. Precedent, Stone v. Graham: Isolated exhibition of Commandments required by state law in public school classrooms violated Establishment Clause a. Similarities: Both set out a text of the Commandments as distinct from any traditionally symbolic representation; each stood alone, not part of arguable secular display b. Where the text is set out, the insistence of the religious message is hard to avoid in the absence of a context plausibly suggesting a message going beyond an excuse to promote the religious POV i. Only when counties were sued did they modify to provide context ii. No "reasonable observer" could swallow the claim that the Counties had cast off the objective so unmistakable in the earlier display 4. History, no common understanding about the limits of the establishment prohibition. Inconsistent historical practice is too weak to upset decades of precedent adhering to neutrality 5. *****Basically says that because the first two displays were found to violate the Establishment Clause, "no reasonable observer" would think that this third, facially secular display was secular because it's tainted (for who knows how long...because you know...reasons...) Scalia - dissent 1. Disagrees with basic assumption of Souter majority, believes gov. can favor religion over non-religion (similar to moral-disapproval arg.) 2. The government has a tradition of endorsing monotheism permitting the disregard of polytheists and atheists 3. "Indirect evidence based on behavior" is probative of the original public meaning -distinguished from his "tradition" discussion in Weisman dissent 4. Morality is essential to the well-being of society, religion fosters those views 5. If the government isn't supposed to promote religion, shouldn't it only matter what a reasonable person viewing thinks? History of how it got this way is irrelevant Note - argue that intent relevant for eq. protection claims because discrimination requires intent, whereas establishment clause does not?

Grutter v. Bollinger

University of Michigan Law School admission policy requires admission officials to evaluate each applicate based on all of the information available in the file • Requires them to look beyond grades and consider "soft variables" • Goal to enroll a "critical mass" of under-represented students The policy has a legitimate purpose (diversity) and the means are narrowly tailored to meet the ends, thus Constitutional; however, expect that in 25 years the use of racial preferences will no longer be necessary 1. Law school's educational judgment that diversity is essential to its educational mission is one to which the court defers 2. While there is some relationship between numbers, remains flexible enough to make sure that each applicant is evaluated as an individual Note In Bakke, diversity a particular minority brings to a class; in Grutter, the critical mass is an extra argument for diversity Rehnquist - dissent Strict scrutiny is not deferential; only explanation for critical mass difference between Hispanics and African Americans is racial balancing which is unconstitutional Thomas - dissent Affirmative action is racial discrimination; the real goal of the law school is to offer a marginally superior education while maintaining an elite institution; school chooses to use the LSAT which disproportionately favors non-minorities, then tries to correct for poor black performance (dropping LSAT would be okay because benign); actually deserves students by (1) stigmatizing all minorities who are admitted and (2) causing "overmatched" students to fail

Gratz v. Bollinger

University of Michigan undergrad admission policy admits students based on a selection index which allots a certain number of points to students that possess certain qualities; students belonging to underrepresented group automatically get 20 points, essentially guaranteeing admission Unconstitutional: Not narrowly tailored to achieve the interest in educational diversity claimed to justify the program 1. Decisive for virtually every application 2. Thus not an individualized selection process Ginsburg - dissent Race being used to achieve equality is okay, ("no automatic proscription is in order"); further, affirmative action plans permit institutions of higher education to maintain minority enrollment without resorting to "camouflage" "benign" discrimination v. "invidious" discrimination

Fischer v. Texas (Fischer II)

University of TX admission plan combines a Top 10% plan (that supplies a critical mass) with a PAI, in which race is given weight as a sub-factor Lawful under the equal protection clause 1. Concrete and precise goals mirror compelling interest in other cases 2. Months of study and deliberations by the university concluded that race-neutral policies were insufficient to achieve racial diversity despite 10% plan 3. Record doesn't support that considering race was unnecessary because consideration had minimal impact on achieving compelling interest 4. No proposed alternatives were workable means for university to attain benefits of diversity sought Alito - dissent Accuses Kennedy of not using strict scrutiny, but instead deferred to the state Condemns the majority for stereotyping who got in through the top 10% plan b/c not "enough" wealthy minorities were getting in The race-conscious plan came in after the numbers were already up, so not legit What about Asians? Discriminates against minority race because too many in schools? Racist. 1. Justifications had to shift because minorities already present in school due to the 10% plan a. 10% plan was race conscious and implemented by legislature - like Kennedy's concurrence in Seattle b. Racially neutral practice on its face, but policy adopted for race conscious reason; conservatives on the court okay with this 2. Court is very deferential to U of T, as it was to Michigan Law defer to the professional opinion that they need to do this to provide the experience that they want to provide (issue with this idea: isn't that the opposite of strict scrutiny?)

Va. Pharmacy v. Va. Consumer Council

VA statute prohibited pharmacists from advertising prescription drugs Does 1st Amendment protection extend to commercial speech? Yes: Commercial speech is protected by the 1st Amendment 1. Interests a. Advertiser: purely economic (but doesn't disqualify for protection) b. Consumer: free flow of commercial information c. Society: also free flow of commercial information; in a free enterprise economy, matter of public interest that economic decisions are intelligent and well informed 2. State may still regulate the stream of commercial information to prevent deceptive or misleading advertising Rehnquist Dissent Holding open the door for dissemination not only of price information, but for active promotion of prescription drugs, liquor, cigarettes, and other products - the use of which it has previously been though desirable to discourage

United States v. Virginia (VMI case)

VMI was the sole single-sex public school of higher education left in VA; proposed opening VWIL at Mary Baldwin College to be the female equivalent 1. VA fell short of establishing the "exceedingly persuasive" justification that must be the solid base for any gender classification a. Part of skeptical scrutiny is to reject overbroad generalizations of "talents capacities, and preferences of males and females" (rejects sex-stereotyping) -here, stereotype is that very few women are going to want to subject themselves to this process b. For Ginsburg, enough that 1 woman would want to go c. Lacking actual state purposes, rationalizations for actions not enough: Stark difference in the deference afforded to educational institution from affirmative action cases 2. Remedy must closely fit the Constitutional violation by eliminating the discriminatory effects of the past and barring like discrimination in the future A. VWIL different in kind from VMI and unequal Notes 1. Not the same formula of intermediate scrutiny; "skeptical scrutiny" based on standard of "exceedingly persuasive justification" 2. Would probably survive intermediate scrutiny 3. While there are relevant differences to legislate differences based on gender (as opposed to race), they must be real reasons the Act was done, not post-hoc litigation reasons—here, the program in the 1800s probably left women out to discriminate Scalia - dissent Tradition: When did this become unconstitutional? Need a good constitutional objection to get rid of something that's been around for so long; isn't clear when intermediate scrutiny is now looking a lot like strict scrutiny

Brown v. Entertainment Merchants

Violent Speech: CA Bill prohibiting the sale or rental of violent video games to minor without the consent of one parent, and requires their packaging to be labeled "18" Unconstitutional, (1) subject of the games is violence, which is not categorically unprotected, (2) boils down to the restriction to minors 1. Precedent suggests that obscenity only covers depictions of sexual conduct a. Winters: violence is not part of obscenity b. Ginsberg: approved a prohibition on the sale to minors of sexual material that would be obscene from the perspective of a child 2. Rejects CA attempt to create a new category of content-based regulations for speech directed at children: longstanding tradition of books with violence given to children (Grimms fairytales, etc.) 3. Because the act is content-based must be held to strict scrutiny a. CA fails to show a direct causal link between violent video games and harm to minors b. Statute doesn't cover restrictions on cartoons, sale of games, etc.: underinclusiveness raises concern about pretext! c. Overinclusivenss (by including kids whose parents don't care) does not cure overbreadth Alito - Concur Would hold the law unconstitutional on the grounds that it is impermissibly vague. Fails to provide fair notice because... "deviant" interest of minors is heavily dependent on the identification of generally accepted standards, lumps all minors together regardless of age. Cautions that the court is too quick to dismiss the possibility that the experience of playing video games may be different from anything seen before; new technology should be approached carefully Thomas Dissent 1. Biggest issue that separates him: the opt out vs. opt in nature of the regime, kids can't have unless parents opt out 2. The 1st, as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians Breyer Dissent 1. CA law only imposes a modest restriction on expression to support compelling state interests (basic parental claim to direct the rearing of children, and state's independent interest in well-being of its youth) 2. Evidence that statute furthers: video games teach habits, cause more harm than passive media 3. Case is about education, not censorship: making choices

Washington v. Glucksberg

Washington law prohibits causing or aiding a suicide; petitioners are physicians who treat the terminally ill and would like to assist patients in ending their lives The asserted "right" to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause 1. Glucksberg 2-Step (order inverted from actual case) a. Careful description of the fundamental liberty interest i. In operation, careful is taken to mean narrow ii. Concrete examples (1) rein in subjectivity, and (2) reject case by case balancing a) As you look back in history, not likely to be there as an acknowledged, recognized right b) "level of generality" problem iii. Right to suicide with assistance b. Is it deeply rooted in tradition and history of the nation? i. Centuries of legal doctrine outlawing the practice 2. Distinguishes Cruzan: right to refuse lifesaving hydration and nutrition 3. Rational basis analysis c. State interests: preserving human life, protecting the integrity of the medical profession, protecting the vulnerable from coercion and involuntary euthanasia d. The prohibition is at least reasonably related to the state's interests Souter - concur In place of Glucksberg 2-Step, would conduct Arbitrariness Review 1. Don't have to identify as fundamental, just whether or not the law is arbitrary a. "Understanding begins with a concept of ordered liberty comprising a continuum of rights to be free from arbitrary imposition and purposeless restraints" (Harlan Dissent, Poe) 2. Distinguishes Lochner on the basis that it implemented in an "absolutist" fashion (suggests that it isn't so terrible otherwise) - view instead in a realistic fashion 3. Gets to the merits and says that the law is not arbitrary nor irrational because of the slippery slope here (recognizing this right would lead to no principled way to avoid recognizing others) Souter's approach meant something "real" in the body of Carolene Products, but is turned into a formalistic fiction in Williamson

U.S. v. Cruikshank

White militia attacked black militia Notwithstanding Congress's attempt to reverse Barron with the 14th, Cruikshank upholds it; thus, the BOR does not apply to the states. (Formally known as the State Action Doctrine: 14th Amendment only applies to state action) Limits the 14th A: • Limits to intentional, race-based legislation • Reinforces/cites Barron • Pre-existing rights not protected by the federal gov • Doesn't create rights of one person against another

Yick Wo v. Hopkins

Yick Wo and 200 other Chinese guilty of violating a San Francisco ordinance requiring laundry cleaner owners to obtain the consent of the board of supervisors to operate (80 non-Chinese granted consented) Statute facially okay, but is unconstitutional in application: Whatever the purpose of the ordinance, apply by the public authorities representing the state "with a mind so unequal and oppressive as to amount to a practical denial by the state of that equal protection of the laws." 1. First time a facially neutral law struck down because of that way that it is applied 2. One of the rare cases during this time where the court is protective of civil rights 3. Look at a facially neutral law and ask, is there an improper purpose? (i.e., is the government trying to subvert a liberty?)

Harris v. Quinn

caregivers who are employees of the State --- argues shouldn't have to pay union dues Alito - said they don't have to reverse Abood because these people don't work for the State, they work for the patients and are just paid by the government Says Abood is problematic Kagan - Dissent Thinks these are public sector employees and should apply Abood Says you can't overrule Abood because so much reliance (horrible superprecedent argument)

Chaplinsky v. New Hampshire

fighting words case

Buck v. Bell

forced sterilization case for mentally incompetent Eugenics movement cited by the Nazis in the Nuremberg trials "three generations of imbeciles is enough"

Meyer v. State of Nebraska

unconstitutional act prohibiting teaching of foreign language decided on economic liberty ground, but reinterpreted as personal liberty case

Burwell v. Hobby Lobby

whether 1993 RFRA permits HHS to require corporations to provide contraception Alito - Majority HHS cannot require corporations to provide contraception because it violates RFRA Smith doesn't apply because of the RFRA, which requires least restrictive means serving compelling interest if substantially burdening religious exercise -------------basically a Sherbert approach ---here, substantial burden because will be heavily fined if they don't provide the contraception which is against their religious belief ---HHS exempted non-profits, so capable of doing the same thing for for-profits; therefore, not least restrictive means Ginsburg - Dissent Says now businesses can opt out of any law because of religion Claims this harms women (factually incorrect because they still get coverage) Says corporations are not people and the burden is "too attenuated" Says compelling interest because "women's well being" Randy Note - does this undermine Smith? Yes, shows anarchy doesn't ensue from religious accommodation. Or maybe it shows it isn't within the Court's role to decide these issues unless Congress tells them to