POLS 322 final

"Humane Disposal" and Waiting Period

(Akron v Akron) Ohio ordinance required that post first-trimester abortions have these things. Both were found unconstitutional: 24-hour ordinance: no medical basis, beyond state's power, increases cost of abortion by forcing two trips; Humane disposal: says it must be "humane" but it is vague and unnecessary.

Alien and Sedition Acts

1798 - restricted the activities of foreign residents in the country and limited freedom of speech and of the press

Constitutional absolutists

Black, Douglas. 1st amendment says Congress shall pass no law, and they take it literally

Hand test

Dennis - recast of clear and present danger: gravity of evil discounted by its improbability justifies necessary restrictions

Lemon test

Establishment Clause 1. Statute must have secular legislative purpose 2. Principal/primary effect neither advances/inhibits religion 3. Must not foster "excessive government entanglement with religion"

Obscenity

Exception to prior restraint, first amendment. Common law precedent came from Victorian England Regina v Hicklin - Allowed government to ban any material and publish anyone (publisher, writer, possessor) if any part of the material is objectionable to any vulnerable person in society (women and children) US v Kirklen - rejected this common law precedent

Richmond Newspapers Inc v Virginia (1980)

Facts - 3 murder trial charges reversed or dismissed. VA granted motion of defense counsel to close the fourth to public Issue - 1st amendment free press Rule of law- Jeopardizing fair trial (6th) vs freedom of press (1st). narrow question - right of public/press to attend criminal trials (Gannett was pretrial and this is trial) Court opinion- 1st amendment protects right for everyone to attend trial. State says its not in the Const, Court says its an unarticulated right (like privacy, travel). Historically trials have been open: -Public trials have significant community therapeutic value -Justice provides outlet for community emotional release -Justice cannot function in the dark Dissent- 1st and 6th (applicable to the states through 14th), state's reasons for denying public access to a trial are not subject to constitutional review at the Court's hands, Burger is on a power trip Notable outcome/precedent- Trials are public!

Tinker v Des Moines (1969)

Facts - 3 students suspended from public school for wearing black armband protesting U.S. involvement in Vietnam War. Principle knew ahead of time and banned armbands Issue - 1st amendment free speech Rule of law- Does the First Amendment apply at school? If it does, does it apply in full or depending on needs of state? Court opinion- First Amendment rights do apply to students, even in school, because they're persons - "The First Amendment does not end at the schoolhouse gate." This is underinclusive - only bans this particular symbol (other political speech allowed). School's interest: preventing disruption, but students weren't disruptive. Dissent- ushers in new era of power where students can run schools, school officials still have authority in maintaining discipline Notable outcome/precedent- First Amendment doesn't end at the schoolhouse gate!

Abrams v U.S. (1919)

Facts - 5 Russians in U.S., not trying to naturalize. Four of them said they're anarchists, last person said they're a socialist. Charged under Espionage Act Issue - 1st Amendment freedom of speech Rule of law- Court opinion- clear and present danger, invites sedition, riots, and revolution. Persuasive evidence that they are trying to invoke curtailment of the war production. These people are trying to undermine the government, not just criticize it. This is speech advocating action in a time of war Dissent- Congress can't forbid all effort to change the mind of the country, has to be immediate evil, Holmes wrote clear and present danger test and told Court they're using it wrong Notable outcome/precedent- Freedom of speech is not the same during war

Wallace v Jaffree (1985)

Facts - AL statute - 1 minute period of silence in public schools "for meditation or voluntary prayer" Authorized teachers to lead willing students in prescribed prayer to God Issue - First Amendment Establishment Rule of law- Court opinion- fails first prong of the Lemon test - secular purpose. Invalid if entirely motivated to advance religion. NO secular purpose - Senator who sponsored bill said in statement it was an "effort to return voluntary prayer" to public schools. Said he had no other purpose in mind at the District Court. There was 3 laws, first was only about meditation, second law added "or voluntary prayer," indicates the state favors it (third was about authorizing teachers) Dissent- some moments of silence are okay (this is bad because of the intent). Court is being hostile to religion, comments from bill sponsor was after the law was passed. First Amendment does not exist to require neutrality between religion and non religion. Notable outcome/precedent-

NYT v Sullivan (1964)

Facts - Ad in NYT - false statements about actions from Alabama police on Civil rights demonstrators. Sullivan, who supervised police, brought libel action Issue - 1st amendment free speech Rule of law- determine extent to which free speech and press limit state's power to award damages for libel brought by public officials. Ad would qualify for constitutional protection, but does it forfeit protection by fallacy of the facts/alleged defamation of respondent? Court opinion- "Libelous" statements don't mention respondent by name but mentioned "police." Respondent showed no effort to prove he suffered actual "pecuniary loss" as a result of alleged libel. ACTUAL MALICE test - Public official cannot recover damages from libel unless he can prove "actual malice" — knowing it was false/reckless prior to publication. Lack of proof here. NYT eventually retracted b/c the government asked, did not see connection to Sullivan (not actual malice) Dissent- press has right to criticize officials despite harm caused Notable outcome/precedent- actual malice test developed

Holder v Humanitarian Law Project (2010)

Facts - Antiterrorism and Effective Death Penalty Act of 1996 - prohibits material support or resources to foreign orgs that are deemed to be engaging in terrorist activity. Humanitarian Law Project alleges they help orgs appeal to UN for humanitarian aid Issue - 1st amendment free speech and 5th amendment due process Rule of law- Court opinion- statute is constitutional, but government doesn't assume that this law is valid any time you want to use it. -due process of 5th? : applies stringent vagueness test; is not vague. -1st amendment free speech: Plaintiffs say Congress has banned pure political speech, can speak and write freely about both orgs. Govt said we're prohibiting conduct and not speech (material support). Both are wrong, it's a mix of speech and conduct -Uses "high scrutiny," compelling state interest (national defense), but HLP says it's not narrowly tailored enough -- unnecessary restriction on right of speech, we're just trying to help -Court says you can't separate humanitarian needs vs terrorism needs (Freeing up resources, allowing them to use more money) -1st amendment free association: doesn't prohibit being a member of org or supporting political beliefs, prohibits act of giving material support Dissent- it's not vague, but the govt hasn't met burden of proving that speech needs to be prohibited. This is pure political speech Notable outcome/precedent- Ya can't give $$ to terrorists

Near v Minnesota (1931)

Facts - Anyone publishing "malicious, scandalous, and defamatory" publication guilty of nuisance, subject to prosecution by state. Jay Near prosecuted for newspaper focused on corruption and racketeering in Minneapolis (directed at mayor, chief). Newspaper shut down, told he can never publish anything again Issue - 1st amendment free press, 14th due process Rule of law- Seditious libel about government or fair criticism? Court opinion- Infringement of liberty of the press under the 14th. Remedies for libel are still available. State didn't say the story was untrue, but "malicious." Statute says publication is defamatory if it injures reputation, scandalous if it speaks of reprehensible conduct. Statute shifts burden of proof to accused, violates due process. Doesn't lead to punishment, but suppression. Prior restraint Dissent- abuse of the liberty of the press Notable outcome/precedent- No prior restraint

Branzburg v. Hayes (1972)

Facts - Branzburg called before jury after writing article about how two men made hashish from marijuana. Refused to identity them. NYT reporters refused to testify about Black Panther coverage Issue - 1st Amendment free press Rule of law- are newsmen exempt from testifying in front of grand jury? Court opinion- does not violate 1st amendment freedom of press or speech. No prior restraint, no penalty related to published material. All citizens, including newsmen, are not exempt from appearing in front of jury. We're not telling you that you can't use anonymous sources. Court: no evidence mandating that you appear in court would stop news flow. Prosecuting crime > anonymity of sources Dissent- newsmen have an absolute right to not appear unless newsmen themselves are involved in the crime, Constitutional right to protect source stems from societal interest in full Notable outcome/precedent- newsmen have to testify

Miller v CA (1973)

Facts - CA prosecuted Miller for distributing obscene matter Issue - 1st amendment free press/speech Rule of law- is obscenity protected under the 1st? Court opinion- Creates new test - ROTH PLUS. conduct must be specifically designed by applicable state law. State offense limited to works (as a whole) appealing to prurient interest in sex, portray sexual conduct in patently offensive way, as a whole have no serious literacy, artistic, political, or scientific value. Reaffirms Roth, obscenity not included under fist. Material can be regulated by states subject to safeguards above, "contemporary community standards" not "national standards" Dissent- obscenity cases have no business in Courts. Statute is unconstitutional, overbroad Notable outcome/precedent- Another test...

Boerne v Flores (1997)

Facts - Catholic Archbishop wants to enlarge church, was denied. Sues under Religious Freedom Restoration Act Issue - Section 5 of 14th amendment Rule of law- Court opinion- Congress trying to overturn Smith and restore Sherbert. Judiciary's authority to determine. Congress authority is only remedial, trying to exercise plenary power. Congress is trying to do Court's job...RFRA is unconstitutional interpretation of 14th amendment. Used RFRA for Hobby Lobby, but that applies to the federal government - this is state Dissent- Smith is wrong Notable outcome/precedent- while Congress may enact such legislation as the RFRA, in an attempt to prevent the abuse of religious freedoms, it may not determine the manner in which states enforce the substance of its legislative restrictions.

Obergefell v Hodges (2015)

Facts - Challenging state prohibitions of same-sex marriage, and refusal to recognize marriages from another state Issue - 14th amendment due process and equal protection Rule of law- right to marry Court opinion- Marriage is a fundamental right and its meaning has changed over time. No clear test here. Four principles and traditions why marriage applies to same-sex couples 1. Right to personal choice in marriage from individual autonomy (similar to conception) 2. The right to marry is a fundamental right, supports two-person union unlike any other (Lawrence) 3. Safeguards children and families, relates to procreation and education 4. Marriage is a keystone of social order Dissent- Court is overstepping Notable outcome/precedent- Same sex marriage legalized! <3

RAV vs St. Paul (1992)

Facts - Charged with burning cross on Black family's lawn. Violated Bias-Motivated Crime Ordinance, prohibits symbols to "arouse anger, alarm, or resentment on the basis of race, religion, gender, creed, or color" Issue - 1st amendment free speech Rule of law- limiting speech on conduct Court opinion- Unconstitutional - prohibits otherwise permitted speech solely on basis of the subjects the speech addresses. Content-based regulations of speech are invalid. Can't be mean on basis of "race, religion, gender, creed, or color" but you can be mean to everyone else. State interest is not narrowly tailored Dissent- Notable outcome/precedent- content-based regulations of speech are invalid

Lynch v Donnelly (1984)

Facts - City of Pawtucket, RI set up Xmas display including nativity scene Issue - 1st amendment Establishment Clause Rule of law- Court opinion- did not violate Estab Clause. Had other non religious decorations - Santa, teddy bears, etc. Lemon test: -Secular purpose - yes, lots of different decorations -Doesn't endorse religion - Thanksgiving is nat'l holiday, we give people Christmas off (history of acknowledging that Xmas is religious holiday). Gov't not spending a lot of money on this, no evidence -Entanglements - if there was hostility, could be entanglement...but no one cares Dissent- display doesn't have clearly secular purpose. City can achieve its objectives through other means. This will create entanglement, Jews will want a Menorah Notable outcome/precedent-

Cohen v California (1971)

Facts - Cohen in LA courthouse, wearing jacket that said "F*ck the draft." Arrested for disturbing peace and quiet of neighborhood or person by offensive conduct - Common law disturbing of the peace act Issue - 1st and 14th amendments Rule of law- Right to free speech vs disturbing the peace Court opinion- this is pure speech, only conduct is communicating that speech. Statute is way too vague for "offensive conduct," being punished for the content of the message. Cites Roth v U.S. - this is vulgar, not obscene. Not fighting words (not aimed at anybody in particular, not an invitation to fight, objection to the draft). Unwilling audience - we are often captives outside the sanctuary of your own home. If you go in the public you are subject to speech you don't wanna hear. If you don't like it, walk away. Dissent- absurd and immature. Conduct, not speech. CA Supreme Court resolved issue of vagueness Notable outcome/precedent- clothes are speech

Reno v ACLU (1997)

Facts - Communications Decency Act to protect minors from harmful material on the Internet Issue - 1st amendment free speech Rule of law- Court opinion- Abridges freedom of speech under 1st. Many people access the Internet for many things. Slim odds that someone would see porn on accident. Reasoning effective method for parents to prevent children from accessing will soon be available (Pacifica Foundation v FCC). No reliable way to verify age. DIfferences between this case and other cases: Differentiates from Pacifica because it was a broadcast, and it was not a punitive statute No comparable history of Internet (not as invasive) to radio Differentiates from Ginsburg - it was narrower (a lot of ways to get around it, commercial transactions so it didn't punish access) Renton was not aimed at content but secondary effects (not placing adult video stores in residential neighborhood) Dissent- "indecency transition" and "specific person" was constitutional Notable outcome/precedent-

Cruzan v Director, Missouri Dept. of Health (1990)

Facts - Cruzan, 32-year-old woman, in persistent vegetative state. Parents wanted to take off life support against wishes of Missouri. Roommate had memory of Cruzan orally saying she didn't want to be alive unless she could live halfway normal. Competent person can refuse lifesaving nutrition/hydration, but Missouri requires "clear and convincing" evidence of incompetent's wishes Issue - 14th amendment Rule of law- Does someone have the right to die? Is the roommate's evidence enough? Court opinion- Cruzan cannot provide consent, and the statement is not clear and convincing evidence. The 14th amendment must balance individual liberty interest with related state interest, and Missouri has an interest in protecting and preserving human life. You can't reverse unplugging someone, but you can the other way around Dissent- No basis for state, cessation of treatment has no negative impact on third parties, Missouri has not met its burden Notable outcome/precedent- you don't have a right to die (if you want to, make sure it's recorded)

Gannett Co. v DePasquale (1979)

Facts - Defendants charged with murder, robbery, larceny, requested public exclusion from hearing. Judge ruled in favor, no opposition. Gannett reporter asked for transcript of pre-trial hearing, eventually given transcript Issue - first amendment free press (14th too) Rule of law- Jeopardizing fair trial (6th) vs freedom of press (1st) Court opinion- Constitution doesn't mention public access to criminal trial. Like other enumerated rights, personal to the accused -- 6th amendment is the defendant's right, public reinforces defendant's right. 1st and 14th are not violated - temporary, not absolute. Transcript was made available after Dissent- 6th and 14th prohibit state from conducting pretrial suppression hearing in private, even at request of accused, unless full and fair consideration given to public interest in open trials Notable outcome/precedent- Can make a pretrial hearing private

Dennis v U.S. (1951)

Facts - Dennis and others were leaders of Communist party, convicted under Smith Act for teaching and advocating overthrow of government with force and violence Issue - 1st amendment free speech Rule of law- Court opinion- Law is constitutional, Communists are a threat -- we don't even want that spark. Test: recasting clear and present danger. The hand test -- gravity of evil discounted by its improbability justifies necessary restrictions Dissent- prior censorship, only agreed to assemble. Communists are an easy target Notable outcome/precedent-

Hustler Magazine v Falwell (1988)

Facts - Falwell, minister/politics commentator, filed libel suit against Hustler. Ad parody displayed Falwell as drunkard having sex with mom in outhouse -- sued for libel and emotional distress Issue - first amendment free press Rule of law- Court opinion- small disclaimer that it's a parody, says it's a parody in the table of contents. Political discourse is poorer without satirical cartoons. NYT applies here - must show falsity with "actual malice" bc Falwell is public figure Dissent- NYT v. Sullivan has no place here — ad had no assertion of fact Notable outcome/precedent- satirical cartoons are great for democracy

West Virginia State Board of Education v Barnette (1943)

Facts - Gobitis sparked heavy criticism. Barnette, JW, challenged West Virginia mandatory flag salute statute, said it violates religious beliefs Issue - 1st amendment free exercise, 14th due process Rule of law- Court opinion- refusal to participate in ceremony does not interfere or deny others' rights to do so. The behavior was peaceful and orderly. There's a conflict between authority and individual rights. 14th amendment protects citizens from state including school board. "Compulsory unification of opinion achieves only the unanimity of the graveyard." Requiring salute transcends constitutional limits on power Dissent- If I was asked for my personal opinion I would agree with the ruling. But we're not religious, we have an attachment to the Constitution Notable outcome/precedent- Gobitis overturned

Goldman v Weinberger (1986)

Facts - Goldman is a Jew and couldn't wear his yarmulke in Air Force, sued for freedom of exercise. Air Force law is to establish discipline and foster esprit de corps Issue - 1st amendment free exercise Rule of law- unity vs free exercise. Does military have exception? Court opinion- violated Air Force Regulation law, Goldman says it should be analyzed under Sherbert v Vener but "military is a specialized society separate from civilian society" (Parker v Levy). Military doesn't have to tolerate 1st Amendment, must foster obedience. Desirability of dress regulations in military decided by military officials, Goldman's arguments don't matter Dissent- giving up our role and deferring to military, adding exception for yarmulke in statute would not make statute neutral Notable outcome/precedent- military has say with 1st amendment

Bowers v Hardwick (1986)

Facts - Hardwick violates Georgia law - sodomy with male in home Issue - Right to privacy Rule of law- Court opinion- No constitutional protection for acts of sodomy, it's a state's rights issue. No fundamental right to engage in homosexual sex. Stanley v Georgia doesn't apply - you cannot commit murder in your own home. We don't have to tolerate all crimes just because you're in your own home. Passes rational basis - morality cases aren't automatically violating due process Dissent- Goes against Stanley v Georgia, this is about the "right to be alone" Notable outcome/precedent- don't do anal in Georgia

Harris v McRae (1980)

Facts - Hyde Amendment - abortion not refundable under Medicaid Issue - due process of 5th, free exercise of 1st Rule of law- Court opinion- Doesn't violate 1st: just because the law coincides with the tenets of a religion doesn't mean it's a violation. Doesn't violate 5th: equal protection not source of substantive rights/liberties. Rational basis: saving taxpayer money. Dissent- Hyde Amendment infringement on right to receive abortion, coerces women to not get abortion, punishes poor women Notable outcome/precedent- Medicaid doesn't have to fund abortions

Walker v Texas Div, Sons of Confederate Veterans, Inc (2015)

Facts - In Texas, nonprofit groups can issue specialty license plate and a board reviews and approves applications. Sons of Conf. Vets applied for specialty license plates including confederate flag, Texas DMV denies application for plate design Issue - 1st amendment viewpoint discrimination Rule of law- Court opinion- License plates are government speech, this would be involuntary govt speech = Texas would be endorsing confederate flag. License plates are a form of government ID. Dissent- Court has erased distinction bt private and government speech. More than 350 designs of specialty plates in Texas, no way those can all convey a government message. This is blatant viewpoint discrimination Notable outcome/precedent- license plates are government speech, IDs

Texas v Johnson (1989)

Facts - Johnson burns American flag in front of Dallas City Hall, protesting Reagan and American corporations. Convicted by Texas for desecrating flag. Issue - 1st Amendment free speech Rule of law- Was his action "expressive conduct"? Court opinion- Constitutional. No disturbance of the beach. Expressive conduct (speech plus) — Texas allows flag burning if dirty, ripped, so the law is about expression. Law is not content neutral, only applies to American flag Dissent- goes over history of flag. Burning flag is not to express but to antagonize others. Johnson expressed his freedom of speech many other times. Value of flag is immeasurable, burning it will tarnish value Notable outcome/precedent- you can burn an American flag

Brandenburg v Ohio (1969)

Facts - KKK leader convicted under Ohio criminal law for advocating crime as a means of reform - Ohio Criminal Syndication Act. Organizing meeting, advocating for violence, media was there, prosecuted him on speech Issue - 1st and 14th Rule of law- Does the statute, prohibiting public speech that advocated certain violent activities, violate defendant's rights to free speech? Court opinion- Act was overly broad and violated first amendment. Unconstitutional on face and as applied: punished advocacy and assembly, cannot be sustained. Act made it illegal to reach or advocate doctrines of violence, but failed to address issues of whether advocacy or teaching would actually incite imminent lawlessness. New test from Dennis: Is there intent? Is there imminent lawless action?is there likely to be imminent lawless action? Dissent- clear and present danger test should have no place in the interpretation of the first amendment Notable outcome/precedent- Whitney overturned — now you can advocate, teach, and be a member but you can't incite

Stanley v Georgia (1969)

Facts - Law enforcement has warrant to search Stanley's home for bookmaking. Found and screened "obscene" films. Georgia has statute against obscenity, convicted Issue - 1st and 14th amendment Rule of law- To what extent is your home your castle? Do you have privacy in your home? Court opinion- You are protected in your home to watch and possess what you want. Cites Roth. He is harming no one but himself by having obscenity in his private home, insufficient justification for government intrusions into privacy. No evidence that obscenity leads to sexual deviancy and crimes. Dissent- Not a privacy case but a freedom of speech/4th amendment case Notable outcome/precedent- You have privacy in your own home

Packingham v North Carolina (2017)

Facts - NC passes law, banning sex offenders from using websites that has underage users. Packingham is a sex offender. Posts something on Facebook, convicted Issue - 1st amendment free speech applied to the states through 14th Rule of law- Court opinion- Unconstitutional: "with one broad stroke," bars access to what for many are the principal sources for knowing current events, employment ads, speaking and listening in the modern public square...Social media is unlimited forum for free speech. The Internet is like a public park/square. Anyone can access it, you can't restrict free speech on it. Intermediate scrutiny = state interest: significant, preventing sex offenders from soliciting minors. Did not meet burden, because social media is unlimited. Dissent- Internet not the same as public park: 1. Not physical, 2. Anonymous, 3. Limits observations by others (private). Agree that law is overreaching, but the government has more access to regulate than the Court says Notable outcome/precedent- The Internet is like a public park

Engle v Vitale (1962)

Facts - NY Board of Regents authorized composed prayer to recite in public schools, parents sued. NY says it's short, non denominational, and non coercive Issue - 1st Amendment Establishment Clause Rule of law- Court opinion- violates Establishment Clause. Breaches separation between church and state. It's short, but it's not nondenominational and it is coercive (when government supports religion, pressures minorities to conform, and kids are a captive audience) Government sponsored. Dissent- Court and Congress have prayers, but we don't have to join. Teacher spends minimal time saying the prayer, but it's still public officials on public payroll performing religious exercise in a government institution. Official religion is not established by letting someone pray. Denying wish to pray denies opportunity of "sharing in the spiritual heritage of our Nation" Notable outcome/precedent- Can't pray before class!!

New York v Ferber (1982)

Facts - NY statute prohibit promoting sexual performance by a child under 16 by distributing material. Ferber convicted of selling films of young boys masturbating Issue - 1st amendment free speech/press Rule of law- First SCOTUS examination of statute with child sex. Do states have more freedom in proscribing works with sex and kids? Court opinion- Yes, children in porn has become serious problem. 1. Compelling state interest in safeguarding children 2. Distributing child porn related to child abuse (permanent record, too hard to go after only producers). Miller test doeesn't apply 3 distribution encourages child porn (illegal nationally) 4. No value in child porn 5. Aligns with previous decisions (not protected under 1st) Not overbroad - medical textbooks, etc., could fall under statute, but it's a tiny percentage Does not violate 1st or 14th Dissent- Notable outcome/precedent-

Stenberg v Carhart (2000)

Facts - Nebraska law banning "partial birth abortion" (late-term abortion, D+X). Abortion delivering unborn child and killing it Issue - due process of 14th Rule of law- Came from Casey Court opinion- Violation of Constitution. Placed an undue burden on a woman's right to have an abortion and did not allow for exception in cases of threatened health. State has burden of proof and did not provide evidence that this is never necessary for women Dissent- Incorrectly applied Casey/Casey should be overturned/Casey gave power to states. Nothing in constitution Notable outcome/precedent- Partial birth abortions allowed

Nebraska Press Association v Stuart (1976)

Facts - Nebraska state trial judge anticipating trial with multiple murders and widespread news coverage. Entered into order restraining news from publishing amounts of confessions/admissions Issue - 1st amendment free press Rule of law- Jeopardizing fair trial (6th) vs freedom of press (1st) Court opinion- Rules against the gag order. nowhere in the Constitution addressing inherent conflict between 1st and 6th. This is prior restraint. Only a "clear and present danger that pre-trial publicity could impinge upon defendant's right to free trial."-- Impact was speculative Dissent- Notable outcome/precedent- Journalists can attend trial

Everson v Board of Education (1947)

Facts - New Jersey state law reimbursing parents for money they spent transporting students to school, includes students who attend religious schools Issue - establishment clause Rule of law- Court opinion- There should be a wall between church and state. Law is neutral, inclusive. Establishes two-prong test: Shouldn't directly support religious beliefs (including schools), gives examples; this is a general program (applying to public and religious schools), services have a secular purpose (getting kids to school safety). Similar to state police helping kids get through traffic to get to school Dissent- Court is hypocritical, advocating for separation of church and state then commingling in opinion. Subsidizing Catholic education. Slippery slope Notable outcome/precedent-

Vacco v Quill (1997)

Facts - New York statute - crime to aid people in committing suicide. Petitioner says a competent person can refuse life support, this is the same Issue - equal protection of 14th amendment Rule of law- Court opinion- Constitutional. Equal protection creates no substantive rights, No suspect class or fundamental right because the statute applies equally to all New Yorkers. Rational basis (Romer v Evans): State interest to preserve life, prohibiting intentional killing, preventing suicide, maintaining physician's role as patient's healers, protecting the vulnerable, avoiding slide into euthanasia/ Distinction between assisted suicide and withdrawing life support is rational and logical (causation and intent) Dissent- Notable outcome/precedent-

New York Times Co. v U.S. (1971)

Facts - Nixon administration sues NYT and WaPo to prevent them from publishing Pentagon Papers Issue - 1st amendment freedom of press Rule of law- national security vs. first amendment prior restraint Court opinion- Per curiam: government carries heavy burden for prior restraint and it hasn't been met Dissent- MANY concurrences and dissents. This is the purpose of the press, only concrete proof that the publication will endanger national security justifies prior restraint, this is executive's job, First Amendment is not absolute, Court rushes in deciding the case Notable outcome/precedent- Pentagon Papers published

Employment Division v Smith (1990)

Facts - OR prohibits sacramental use of peyote. Smith and Black fired for ingesting peyote @ Native American Church. Denied unemployment because they were fired for "misconduct." Issue - 1st amendment free exercise Rule of law- Court opinion- Smith cites previous cases where state can't deny unemployment based on willingness to forgo conduct based on religion. This is different because peyote is illegal... Sherbert test (respondents wants) - government actions that substantially burden religious practice must be justified with a compelling state interest We have abstained from applying test. Would not apply it to require exemptions from applicable criminal law Closer to rational basis test (government does not have burden) Not prohibiting drug to prevent Natives from using it, but prohibiting everyone This would place Natives beyond the reach of criminal law Dissent- Yes use Sherbert test, we will reach same conclusion. Religious peyote isn't harmful/doesn't contribute to drug trafficking Notable outcome/precedent-

Zelman v Simmons- Harris (2002)

Facts - Ohio offered tuition grant for low-income families in private schools. Majority of recipients enrolled in religious schools Issue - 1st amendment establishment clause Rule of law- Court opinion- does not violate Establishment Clause. Cleveland public schools among worst in the nation. Lemon test - No primary effect of advancing/inhibiting religion, yes primary secular purpose Cites Mueller, Witters, and Zobrest - when government programs are neutral, provides assistance to a broad class of citizens. If citizens use assistance for religious schools, that's their choice — private choice Dissent- the majority misuses twin standards of neutrality, free choice (96.6% of vouchers are used for religious schools). Allows state officials to referee whether a religious doctrine "teaches hatred or advocates lawlessness" Notable outcome/precedent-

Akron v. Akron Center for Reproductive Help (1983)

Facts - Ohio ordinance required that post first-trimester, be in hospitals, have counseling by physician, unmarried minor regulation, disposing of fetal remains, 24-hour delay after signing consent form Issue - right to an abortion through Roe v. Wade, right of privacy as implied by the Fourteenth Amendment Rule of law- State interest of protecting women vs their rights Court opinion- Reaffirms Roe v Wade Second-trimester abortion in hospital: 2x more expensive, not all hospitals are equipped to do abortions, necessitates travel, can cause health risks Provisions for minors: We need effective judicial bypass where judge can allow for minor abortion -Counseling by physician: extends state limits beyond permissible limits, tries to persuade women against abortion. -Doctor has to say life starts at conception, goes against Roe v Wade -24-hour ordinance: no medical basis, beyond state's power, increases cost of abortion by forcing two trips -Humane disposal: says it must be "humane" but it is vague and unnecessary. Dissent- 3 trimester system unworkable, state interests change over time, Roe v Wade is getting outdated and is an unstable precedent Notable outcome/precedent- Reaffirms Roe v Wade

Morse v Frederick (2007)

Facts - Olympic torch race goes through Alaska - unravels banner "Bong hits 4 Jesus." Principle says banner promotes illegal drug use, Frederick refuses to take it down and is suspended. School says it is school-sanctioned event Issue - 1st amendment free speech Rule of law- Court opinion- cites Tinker, Bethel, Hazelwood. In favor of school. Tinker: rights don't disappear at school. Bethel: student rights are not the same as adult rights. Hazlewood: student rights must be applied in light of school environment. Different from Tinker because the point of this was to be disruptive. Even if the sign is meaningless, still promotes drug use, ignores undeniable reference to illegal drugs. Dissent- The more detailed Court's supervision becomes, more likely will endanger disputes between students and teachers, then back to the Court. Banner is nonsense. Students are dumb Notable outcome/precedent-

Gonzales v Carhart (2007)

Facts - Partial-Birth Abortion Ban Act of 2003 bans D+X, no health exception (physical and psychological) Issue - 5th amendment Rule of law- Charged for vagueness and undue burden Court opinion- Constitutional. Different from Stenberg: is not vague, doesn't make big issue out of no health exception, partial birth abortion illegal because it's already alive when it comes into the world, no undue burden because there's other options. Congress says D+X never medically called for, we agree Dissent- bans procedure that is sometimes necessary for woman's life and health — there are times where D+X is necessary. Refers to research, goes back to ancient domesticity and women's roles in the world. Goes against Roe v Wade by banning a whole method of abortion. Notable outcome/precedent- Bans partial birth abortions

Planned Parenthood v Casey (1992)

Facts - Pennsylvania Abortion Control Act: informed consent, receive info 24 hours before abortion, parental consent/judges consent for minors, notification of husband, facilities had to report abortions Issue - right to an abortion through Roe v. Wade, right of privacy Rule of law- Court opinion- Reaffirms Roe but rejects the trimester framework and creates undue burden test: "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Spousal consent is undue burden, the rest are constitutional — father does not have a dog in the fight, not a part of the equation. Dissent- Disagreed about which parts are unconstitutional. Undue burden is too subjective and has no legal basis, Roe is now a shell. This is not our job. Notable outcome/precedent- Created undue burden test

Snyder v Phelps (2011)

Facts - Phelps founded Westboro Baptist Church. Picketed funeral of Marine, Snyder (killed in Iraq). Father sued for "intentional infliction of emotional distress," "inclusion upon seclusion," awarded damages. Not "at" funeral technically, outside of cemetery on public street Issue - 1st Amendment free speech Rule of law- Does 1st Amendment shield church members from tort liability for speech? Whether 1st Amendment prohibits Westboro liable for speech depends on if speech is of public or private concern (public falls under 1st) Court opinion- Constitutional. At a funeral, but they're on public land. Free speech. No captive audience Dissent- making political issue out of son's funeral, causing emotional distress. Private conduct - infringing on purpose to inflict emotional damage. No political value Notable outcome/precedent-

Griswold v Connecticut (1965)

Facts - Planned Parenthood employees convicte of giving advice/prescribing contraceptives to married woman. Connecticut statue made it a crime for anyone to use drugs or advice to prevent conception. Issue - Right to privacy Rule of law- Where is the right to privacy? Court opinion- violated due process of 14th. Right of privacy in 1st, 3rd, 4th, 5th, 9th, 14th amendments (penumbras). This is the spirit of the Bill of Rights, to protect our right to be left alone Dissent- There is no explicit constitutional right to privacy Notable outcome/precedent- Establishes the right to privacy exists (but we don't know where because it was a plurality)

Lawrence v Texas (2003)

Facts - Police entered home, found two men consentually having sex. Arrested and convicted of Texas law (different from Bowers bc only applied to same-sex) Issue - due process of 14th amendment Rule of law- Right to privacy Court opinion- Bowers v Hardwick was wrong, too narrow — law has far-reaching consequences of privacy. Texas law (only same sex) different from Georgia law, targets a specific group Statute seeks to control a relationship that is private decision: 1. Spacial component - home is very private place; 2. Transcendent liberty interest - not about marriage but about private conduct. National trend toward tolerance of gays. Dissent- homosexuals have no fundamental rights under due process. We have signed onto the homosexual agenda. Notable outcome/precedent- overruled Bowers

Lee v Weisman (1992)

Facts - Principles of public schools in RI could invite clergy at graduation. Lee invited Rabbi to pray and gave direction on the prayer, Wesiman sued Issue - First Amendment Establishment Clause Rule of law- Court opinion- Unconstitutional - "government involvement with religious activity in this case is pervasive" ... "creating state-sponsored and state-direction religious exercise is public school." Student attendance and participation is coercive, youth are susceptible. Standing silently = participating in prayer Principle advised Rabbi on prayer - government creating prayer, and says what they can and can't say Dissent- this is a tradition in graduation, Court invents boundless test of psychological coercion Notable outcome/precedent-

FCC v Pacifica Foundation (1978)

Facts - Radio station broadcasted satiric monologue with bad words. Father complained to FCC - granted complaint. Didn't impose normal sanctions, put order on license file, said they might impose sanctions if they got more complaints. FCC said it had the power to regulate indecent broadcasting Issue - 1st amendment free speech Rule of law- did statute permit censorship under first amendment? Is this forbidden censorship? Can speech that is concededly not obscene be restricted as "indecent"? Court opinion- Nothing in the act gives authority to censor before the broadcast, can review after the broadcast (no prior restraint). Commission issues the statute in a very specific context, only did this because the FCC got complaints. Broadcasting happens in every American's life. Not in the privacy of your own home, it's in the public. Warning that was given at the beginning of broadcast, people come in and out of the radio. Commission has power to regulate obscene, indecent, and profane language. Indecent, obscene not the same thing Prurient interest = unnatural interest in sex (obscene) Indecency = patently offensive (example: f*ck. Not obscene, but people know it's a bad word) Dissent- arguments about whether "indecent" prohibits only obscene speech, it should be broader than "obscene" Notable outcome/precedent-

Lemon v Kurtzman (1971)

Facts - Rhode Island and Pennsylvania, passing legislation providing financial assistance to religious schools Issue - 1st amendment establishment clause Rule of law- Court opinion- unconstitutional Lemon test - 3 prongs 1. Statute must have secular legislative purpose 2. Principal/primary effect neither advances/inhibits religion 3. Must not foster "excessive government entanglement with religion" Passes first two prongs (but fudges it), fails third prong. State has to approve the curriculum, teachers, textbooks and instruction materials to make sure they're secular Dissent- "insoluble paradox for state and parochial schools" Notable outcome/precedent- establishes Lemon test

Roth v US (1957)

Facts - Roth jailed for mailing obscene material, circulating and advertising. (Companion case, Alberts v CA - crime to sell/advertise obscenity) Issue - 1st amendment speech/press, due process of 5th and 14th Rule of law- is obscenity protected under the 1st? Court opinion- obscenity is not "within the area of constitutionally protected speech or press." Numerous opinions that obscenity is not free speech. Obscenity is not sex, appeals to prurient interest (Sex in itself is protected, subject of interest). Replaced Hicklin test: applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest Dissent- punishment for provoking thoughts, not acts. Ignores definition of "obscenity," doesn't discriminate between state and federal obscenity cases Notable outcome/precedent- new obscenity test

Gitlow v New York (1925)

Facts - Socialist Gitlow convicted for violating NY law of criminal anarchy (advocating violent overthrow of government) Issue - 1st amendment freedom of speech Rule of law- Court opinion- there is a call to action, NY is correct in trying to prevent danger. NY doesn't have to wait until acting. Imminent quality goes away, doesn't even need to be an effect. Advocacy alone is enough Dissent- this is mere advocacy, there's no call to action Notable outcome/precedent- 1st amendment free speech clause now applies to the states

Burwell v Hobby Lobby Stores, Inc. (2014)

Facts - Through ACA, employees had to provide contraceptives. Hobby Lobby raised religious objection Issue - SCOTUS uses Religious Freedom Restoration Act of 1993, not Constitution Rule of law- Does HHS regulations substantially burden exercise of religion? Court opinion- Yes, regulations on health insurance violate RFRA, prohibits government from taking action burdening freedom of religion. Contraceptive mandate, as applied to closely held corporations, violates RFRA. Because the contraception requirement forces religious corporations to fund what they consider abortion, which goes against their stated religious principles, or face significant fines, it creates a substantial burden that is not the least restrictive method of satisfying the government's interests. Dissent- allows corporations to opt out of any law incompatible with religious beliefs. Women are disadvantaged, ACA helps them. What about religious objections to vaccines, blood transfusions... Notable outcome/precedent- Corporations are people and can prevent women from getting contraceptives bc of religious beliefs.

Minersville School District v Gobitis (1940)

Facts - Twins got expelled from public school for not saying pledge of allegiance (Jehovah's Witnesses, idolizing), dad sues Issue - 1st amendment free exercise, due process of 14th Rule of law- national unity vs freedom of religion Court opinion- Courtroom isn't the place to debate educational policy. National unity is the basis for national security. Upheld mandatory flag statute. "Secular regulation" rule, weights secular purpose of nonreligious government regulation against religious practice that burdens free exercise Dissent- rights of small, helpless minority trampled by state interest in disciplining schools Notable outcome/precedent- gotta salute the flag

Allegheny County v Greater Pittsburgh ACLU (1989)

Facts - Two displays in Pittsburgh - Christian nativity (in a public building), Menorah (outside building on public land). Donated by religious groups Issue - 1st amendment Establishment Clause Rule of law- Court opinion- Nativity unconstitutional, Menorah constitutional. Nativity - nothing else but nativity (unlike Lynch, which had secular objects), has "Glory to God on the Highest." No secular purpose, inside government building. Menorah - Xmas tree next to it, "holiday setting," not an endorsement of a religion. Secular because it's cultural, historical Dissent- both violate Establishment Clause; neither of them do and they're cultural and historical Notable outcome/precedent-

Schenck v United States (1919)

Facts - Violation of the Espionage Act of 1917, Distributed anti-WWI draft leaflets that said the draft violates the 13th amendment. Charged with conspiracy Issue - 1st Amendment freedom of speech Rule of law- Court opinion- clear and present danger of a substantive evil that Congress has a right to prevent. Context matters: Falsely shouting fire in theater causes panic - unconstitutional. Cites Aikens v Wisconsin, Gompers v Bucks Stove & Range Co. When at war, free speech principles change: obstruction of recruiting service. You don't have to wait for something to happen to prevent it - degree and proximity of danger is important, not immediacy Dissent- Notable outcome/precedent- Freedom of speech is not the same during war, created clear and present danger test

Gertz v Robert Welch, Inc (1974)

Facts - Welch publishes magazine article saying murder trial was a part of a communist conspiracy to disband local police, falsehoods about attorney (Gertz) Issue - first amendment free press Rule of law- Court revisits holding on the protection of private individuals subject to defamatory falsehoods, what is "general or public interest?" Who is a public figure? Court opinion- cites Rosenblum v Metromedia, same question, different facts. False statements not worth of constitutional protection, but inevitable in free debate. Punishment of error could risk the 1st Amendment. Gertz is a private figure (just trying to do his job), private individuals more vulnerable to injury (Sullivan not applicable). Dissent- Court is abandoning tradition, we can't accommodate first amendment, this has ill-defined concepts Notable outcome/precedent- private figures have more protections

Whitney v California (1927)

Facts - Whitney convicted of California Criminal Syndicate Act -- organized/assembled to advocate, teach, or aid syndicalism Issue - 1st amendment free speech Rule of law- Court opinion- affirmed, Constitutional. Speech is fundamental right but it's not unlimited, states have police powers Dissent- not set standard for "clear" or "present" danger. Being scared of injury to society is not justification alone to suppress free speech Notable outcome/precedent- free speech in states

Buck v Bell (1927)

Facts - Women in mental institution, both mother and daughter mentally feeble. Virginia statute allows for sterilization of mentally feeble people who could pass on their illnesses hereditarily. State doctor involved, appeal process, record, representation. Issue - Due process of 14th Amendment Rule of law- The right to reproduce Court opinion- constitutional. There were adequate procedural protections, and the burden will not hurt Buck. Her health is not at risk, and if she reproduces there will be more feeble minded people which will be a burden on taxpayers and the state Dissent- Notable outcome/precedent-

Prior restraint

Government cannot restrain/censor newspapers from publishing something before it's published. Most basic, elemental form of free speech protection.

"Women regret abortions"

In Gonzales v Carhart, Kennedy used this justification in upholding a government prohibition of an abortion procedure, ancient morals

Church/state theory - Rodney King

James Madison (mutual accommodation, doesn't have to be absolute wall)

Declaratory Judgment

Legal determination of the Court for rights and responsibilities of each party in the conflict. This is a legally binding contract.

Church/state theory - build a wall

Locke and Jefferson (build a wall to protect the state and individual rights, worry about religious intolerance)

Religious Freedom Restoration Act

Prohibits any agency, department, or official of the United States or any State (the government) from substantially burdening a person's exercise of religion even if the burden results from a rule of general applicability (Hobby Lobby, Boerne v Flores)

Church/state theory - wall theory 2

Rob Williams (to protect religion from state)

Roe v Wade (1973)

Roe v Wade (1973) Facts - abortions illegal except to save mom's life. Single pregnant woman brought suit. Issue - 9th and 14th amendment Rule of law- Right to privacy, balancing act between mom and fetus Court opinion- Right of privacy in 14th, broad enough to encompass woman's right to terminate pregnancy. Anti-abortion laws in history were for reasons that don't exist today. Women experience societal pressures, psychological pressures, social stigma, stress from pregnancy. Woman's right to choose, state can't interfere up until third month (only her interest that's involved, state's interest in preserving health of pregnant grows over time). Three trimester system: -First trimester only woman's right -Second and third trimester: viability -After viability, state can regulate to protect woman's health (including psychological) and the life of the fetus Dissent- breaking pregnancy into three terms and outlining guidelines for each is "judicial legislation," no constitutional right to privacy Notable outcome/precedent- abortions are legal

Eschewing Effect

The idea of avoiding politics in law.

Viability

The point at which the fetus can live outside of the mother with medical aid. Usually happens at 24-28 weeks.

Church/state theory - modern conservative evangelical view

U.S. is Christian nation and the laws can enforce that

Syndicalism

advocating for seizing means of production. Strikes, sabotage, violence

Espionage Act

after U.S. entered WWI, essentially made it a crime for any person to convey information intended to interfere with the U.S. armed forces prosecution of the war effort or to promote the success of the country's enemies (Schenck v US)

Symbolic speech

an arm band, sewing a flag on the butt of your jeans and then sitting on it (Tinker)

Content-neutral

applies to expression without regard to its substance

Roth test

applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest (Roth v U.S.)

Roth plus test

conduct must be specifically designed by applicable state law. State offense limited to works (as a whole) appealing to prurient interest in sex, portray sexual conduct in patently offensive way, as a whole have no serious literacy, artistic, political, or scientific value (Miller v CA)

D+E and D+X

dilation and evacuation, extraction (intact), "partial birth abortion" (Stenberg and Gonzales v Carhart)

Vacuum aspiration

early term abortions

Speech plus

expressive conduct

Clear and present danger test

formulated by Justice Holmes in Scheck v United States; mere advocacy is not enough to be punished. You do not need to wait before the state acts if there is an extreme danger and advocacy of a call of action.

"The heckler's veto"

government accepts restrictions on speech because of the anticipated or actual reactions of opponents of the speech

Fighting words

incite action

Chilling effect

inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanctions

European Court of human Rights

laws banning homosexuality originated here, outdated

Seditious libel

libel against the government. To what extent should you be able to criticize government and government officials?

Actual malice test

public official cannot recover damages from libel unless he can prove "actual malice" — knowing it was false/reckless prior to publication (NYT v Sullivan)

Penumbras

rights within other rights (right to privacy within other rights...) (Griswold)

Smith Act

set criminal penalties for advocating the overthrow of the U.S. government by force or violence (Dennis v U.S.) (Cold War)

Coerced/compelled speech

sets out the principle that the government cannot force an individual or group to support certain expression (WV vs Barnette)

Sodomy

sexual intercourse involving anal or oral copulation (Bowers v Hardwick)

Theory of preferred rights

some rights are more important than others

Undue burden test

substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability (Planned Parenthood v Casey)

Pure speech

talking and writing

Prurient interest

unnatural interest in sex (obscene)

Constitutional balancers

willing to balance different Constitutional rights. Courts in interest of balancing competing interests

Time, plan and manner restriction

you can protest, but no parades on the freeway