Constitutional Law II

Impermissible Regulation of Expressive Conduct

1) A ban against students wearing black armbands to protest the war in Vietnam, bc the govt's only interest in banning the conduct was prohibiting communication (Tinker v. Des Moines) 2) A federal prohibition against burning the American flag bc the law was intended to suppress messages of disapproval of govt policy, rather than any conduct-related consequences of the burning of a flag (US v. Eichman) 3) An ordinance prohibiting leafleting that results in littering on public streets, bc the govt interest in clean streets is insufficient justification, and such a ban on distribution is not narrowly tailored to protect the communication of info and opinion (Schneider v. State of NJ) - Act of signing petition constitutes expressive conduct; public disclosure of the petition - including names of individuals who signed the petition does not violate the First Amendment bc such disclosure is substantially related to important interest of preserving the integrity of the electoral process (Doe v. Reed)

Rational Basis Review (RBR)

1) A law passes the rational basis standard of review if it is rationally related to a legitimate governmental interest. This is a test of minimal scrutiny. It is not required that there is actually a link between the means selected and a legitimate objective. However, the legislature must reasonably believe there is a link. 2) Laws are presumed valid under this standard, so the burden is on the challenger to overcome this presumption by establishing that the law is arbitrary or irrational 3) RBR applies to laws drawing distinctions based on age, wealth, weight, or most other classifications *Most deferential - govt always wins, except City of Cleburne, Moreno, and Romer

Freedom of Association

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the ppl peaceably to assemble, and to petition the govt for a redress of grievances" - Inseparable aspect of "liberty" assured by the DPC of the 14th Amendment - Integral to the speech and assembly protected by the 1st Amendment - effective advocacy is enhanced by group association

Content-based Speech

"On its face" in distinguishing among ideological, political, and temporary directional signs, subjecting each to different treatment SS applies to content-based speech Ask: What are the asserted compelling govt interests? Are the means narrowly tailored to achieve those interests?

Religious Freedom Restoration Act

- Applicable to the federal govt, not to the states, even neutral laws of general applicability are subject to SS if they substantially burden the free exercise of religion

Laws requiring disclosure of membership

- Disclosure of membership not limited to employees and officers, but included all rank and file members of the NAACP. Evidence showed harm had come to some of its members; stressed the privacy of members; chilling impact of disclosure since NAACP out of favor

Importance of Political Speech

- Does not depend on the identity of the speaker - FSC includes protection for corporations. USSC struck limitations on what corporations can expend to oppose ballot referendum (Bellotti) - USSC upheld restrictions on corps and expenditures for or against particular candidates (Austin v. Michigan State)

Neutrality/Endorsement Test

- Govt cannot promote or affiliate itself with any religious doctrine or organization - May not discriminate among religions - May not delegate govt power to a religious institution - May not involve itself too much in a religious institution's affairs - May not advance, endorse, or indicate any one religion is favored

Proof of discriminatory purpose

- Historical background: a) sequence of events b) departure from normal procedures c) substantive departures - Legislative or administrative history a) stmts by decision makers; notes; reports e.g. McCleskey v. Kemp a) Challenger must establish purposeful discrimination as to HIS criminal conviction and death sentence b) Court rejects argument that discriminatory purpose is shown e.g. Feeney - Over 98% of veterans are men; 1.8% are women - No evidence of purpose to discriminate against women - Policy does not trigger heightened scrutiny and do not violate EPC in spite of discriminatory impact

Govt Action with Express Racial Classification

- Laws disadvantaging racial minorities: a) only "white men" may serve on juries b) executive order in Korematsu - Laws burdening whites and minorities: a) law prohibiting interracial marriages as in Loving - Laws requiring separation of the races: a) segregation laws as in Plessy & Brown

Laws prohibiting/punishing membership

- Only if the govt can prove a person actively affiliated with a group knowing of its illegal objectives and with the specific intent to further those objectives (p. 1671) and summary of cases in first full paragraph on that page - Law denying employment as teachers those who are members of orgs that advocate overthrow of govt. unconstitutional bc no req't of prf that person knew of objective or intended to further them

Pleasant Grove City, Utah v. Summum

- Permanent monuments on public property are forms of govt speech to which the free speech clause does not apply - Given limited space for monuments in a city park, city does not violate the constitution when they make decisions based on criteria

Espinoza v. Montana

- State tax-credit program to fund scholarships for private K-12 education, but vast majority are religious schools - State Dept of Revenue barred families from using scholarships at religious schools based on state constitution's no aid provision - Montana USSC scrapped the program in its entirety, thus eliminating any discrimination

Equal Protection: RBR

- The default level of scrutiny - Classification will be upheld if it is rationally related to a legitimate govt purpose - Court will not uphold classification if it is so arbitrary as to be unreasonable, or there is no legitimate purpose for the classification

American Legion v. American Humanist Assoc.

- Where categories of monuments, symbols, and practices with a longstanding history fall within the tradition of the First Congress opening with a prayer, they are constitutional - Concern with determining original purpose; - Purpose may change over time; - Religious symbol may take on secular and/or historical meaning; - Tearing down monument is hostile toward religion

Free Speech Issues

-Examining the nature of the govt action: i) what triggers FSC analysis? compelled speech ii) content-neutral or content-based; vague; overbroad; prior restraint -Examining the nature of the speech: 1. most protected: i) political "at the heart of the FSC" 2. less protected: i) sexually explicit speech; ii) profane and "indecent" speech iii) commercial speech 3. unprotected: i) incitement of illegal activity ii) fighting words iii) hostile audiences iv) racist speech (?) v) obscenity vi) child pornography vii) "true threats" -Relevance of the places available for speech/expression: type of govt space; private space -Freedom of Association: closely related to speech and assembly rights -Freedom of the Press: runs throughout the material

Analytical Steps for Categorical Approach

1) Does the law define the category consistent with the relevant USSC precedent? a) incitement of illegal activity - speaker intended to cause imminent illegality, and the speech was objectively likely to produce imminent illegal action (Brandenburg) 2) Does the speech at issue come within the category of unprotected speech? See Slide #32 March 31 LSN for Canvas ppt

Unprotected Speech

1) Incitement of Illegal Activity - Use Bradenburg Test/requirements for incitement law: a) imminent harm b) objectively likely to produce illegal action c) speaker intended to cause imminent illegality 2) Fighting Words -Speech directed at another likely to provoke a violent response OK -Crime to "unlawfully, willfully, and knowingly utter and speak obscene and lascivious words and language" (Brown) 3) Obscenity

Intermediate Scrutiny (IS)

1) To be constitutional, the law must be substantially related to an important governmental interest 2) Although the Court has not clearly stated the rule, the burden appears generally to be on the government. As with SS, the govt must defend the interests it stated when the law was enacted, not just some conceivable legitimate interest 3) IS is used when a classification is based on gender or status as a non marital child (legitimacy). In gender cases, there must be an exceedingly persuasive justification for the classification, which may bring the standard in such cases closer to SS (United States v. Virginia)

Places Available for Speech

1) Traditional Public Forums: govt may regulate with reasonable time, place, and manner regulations that are content-neutral 2) Designated Public Forums: - govt property not traditionally considered a public forum - ex: public schools and universities that open their property for use by student and community groups - analysis: same as for traditional public forum - university that allows student groups to use student buildings cannot exclude religious student groups - same as to public schools 3) Limited Public Forums - Govt opens property limited to use by certain groups or dedicated solely to the discussion of certain subjects - ex: Good News Club - parties agreed on designation of limited public forum. School excluded use of property for prayer and bible study after school hours. school's concern was that allowing this would violate the Establishment Clause. USSC held it would not violate EC. - analysis: restriction must be reasonable and not discriminate against speech on the basis of viewpoint. USSC found FSC (Free Speech Clause) violation; excluding prayer and bible study was viewpoint based - city sells ad space on city buses, but will not accept ads on behalf of candidates running for political office - content based, but bus space for ads found to be a limited public forum. restriction found to be reasonable and NOT viewpoint based (Lehman v. City of Shaker Heights) 4) Nonpublic Forums def: govt properties the govt can close to all speech activities; EX: outside prison and jails; areas open to the public, military bases, sidewalks in front of US post offices, solicitation at airports, but court struck the ban on distributing literature at airports

Miller Test (for Obscenity)

1) the average person, applying contemporary community standards, would find that the work taken as a whole appeals to the prurient interest; 2) the work depicts or describes in a patently offensive way sexual conduct specifically defined by the state law; 3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value In application: - nudity alone is not enough (Jenkins) - social value is to be based on a national standard (Pope)

Free Speech Analysis

1. Analyze the govt action - how does it restrict speech? 2. Is the restriction based on the content of the speech? If yes, apply SS; If the restriction is a reasonable time, place, and manner regulation, apply IS *But govt will always argue the restriction does not target content but targets secondary effects and thus IS should apply

Equal Protection Review: Analytical Steps

1. Constitutional basis for the challenge to the classification - 5th or 14th Amendment? - Action by state = 14th A - Action by federal govt - 5th A (a due process clause based on reverse incorp) 2. What is the classification? What is the distinction the govt is making? - RBR? or is "heightened scrutiny" triggered? - Suspect or quasi-suspect class analysis - Race, national origin, or sex? 3. Is the level of scrutiny (LOS) satisfied? a) immutable characteristic; b) lack of political power; c) history of discrimination *not found as to mentally disabled or sexual orientation - Significance of the govt purpose/goal - Fit between the ends and means

How to Accomplish Diversity w/o Violating EPC

1. Document the process used - reports, meetings, studies relied upon to support CGI of having a diverse police force 2. Set out a goal of achieving a "critical mass" of underrepresented minorities 3. Consider underrepresented minorities as one factor among many to define diversity 4. Adopt an individualized and holistic review of applicants

Equal Protection Clause: Levels of Scrutiny

1. Rational Basis Review: the classification is rationally related to a legitimate governmental interest 2. Strict Scrutiny: the classification is necessary to achieve a compelling governmental interest and the goal cannot be achieved through any less restrictive/discriminatory alternative - applies when govt creates classifications based on race/national origin 3. Intermediate Scrutiny: the classification is substantially related to an important governmental purpose

Equal Protection Overview (3 Qs)

1. What classification has the govt created by its action? - The type of classification may lead the court to "heighten scrutiny" above RBR: race, national origin, gender 2. What level of scrutiny (LOS) is appropriate? Default LOS is RBR. Certain classifications lead to heighten scrutiny. - Is there a history of discrimination? - Was there an infringement on a fundamental right? (Due process analysis) 3. Does the govt action satisfy the LOS? (consider the fit between govt purpose/goal and the means chosen to achieve that goal)

Van Orden v. Perry (2005)

A Ten Commandments monument on the grounds of a state capitol building does not violate the First Amendment's establishment clause because "simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the establishment clause." - Religious clauses require that "we neither abdicate our responsibility to maintain a division between church and state nor evince a hostility to religion"

Religious Displays: Ten Commandments

A display of the Ten Commandments on public property is an impermissible violation of the Establishment Clause if the display has a "predominately religious purpose" (McCreary County v. ACLU - Ten Commandments posted in courthouse impermissible) - if the display also communicates a secular moral message, or its context conveys a historical and social meaning, it may be upheld Govt holiday displays will generally be upheld unless a reasonable observer would conclude that the display is an endorsement of religion - A nativity scene in a courthouse under a banner reading "Gloria in Excelsis Deo" was struck down as endorsing religion, but a nearby outdoor display of a Christmas tree, Chanukah menorah, and other seasonal symbols was upheld as mere recognition that Christmas and Chanukah are both parts of a highly secularized winter holiday season (County of Allegheny v. ACLU)

Unfettered Discretion

A law or regulation that permits a govt official to restrict speech must provide definite standards as to how to apply the law in order to prevent govt officials from having unfettered discretion over its application - Such law or regulation must be related to an important govt interest and contain procedural safeguards (mentioned above) - A statute that gives officials unfettered discretion is void on its face (Lovell v. City of Griffin)

Overbreadth

A law that burdens a substantial amount of speech or other conduct constitutionally protected by the First Amendment is "overbroad" and therefore void. - Does not apply to commercial speech

Collateral Bar Rule (CBR)

A procedural rule against substantive challenges to court orders by ppl who disobeyed them w/o first raising their objections in court A court order prohibiting expression must be obeyed; a claim that the order is unconstitutional is NOT a defense and violator will be held in contempt (Walker) Schad case - ban on all live entertainment in town. If a person violated this, they can raise constitution as defense, but if there is a court order prohibiting a demonstration (even if unconstitutional), CBR says that one must comply with the court order and then challenge it for violating FSC When one is denied a permit or enjoined by court order, it would be prudent to appeal the denial or court order

Diversity in public elementary and high schools

A school district may not assign students to schools on the basis of race unless it is necessary to accomplish a compelling interest (e.g. remedy past discrimination). - A district may use facially race-neutral criteria that may have the same effect, such as strategic site selection for new schools or the redrawing of attendance zones (Parents Involved in Community Schools v. Seattle School District) - The Equal Protection Clause applies only to govt action, so private persons generally are not restricted by it - Discrimination by private persons in various areas, such as employment, housing, and public accommodations, is nonetheless regulated by federal statute purs. to Congress's power under the enabling clauses of the 13th and 14th Amendments and the Commerce Clause

Vagueness

A statute is void for vagueness if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited (US v. Williams) Statutes that tie criminal culpability to conduct that involves subjective judgments without providing statutory definitions, narrow context, or settled legal meanings have been struck down for vagueness (Reno v. ACLU)

Requirements for Licensing Laws (p. 1317)

A) Important reason for licensing e.g. ensure multiple parades/demonstrations aren't held at the same time, place. B) Clear standards/guidelines allowing for virtually no govt discretion Examples of too much discretion: 1. public nuisance determined by city manager (Lovell) 2. mayor decides whether to grant permit to news rack (Lakewood) C) Procedural safeguards - prompt decision; full and fair hearing; prompt judicial review of denial

When Conduct is Communicative

A) It is protected by FSC when 1) there is intent to convey a specific message and 2) there is substantial likelihood of it being understood by the audience B) Is govt restriction constitutional? Yes, if the terms of the restriction do not target speech; the goal is to further an important govt interest; and the incidental restriction on speech is no greater than necessary to further the govt interest

Korematsu v. US (overruled)

All legal restrictions which curtail the civil rights of a single racial group are immediately suspect/subject to the most rigid scrutiny. Compelling govt interest: national security Trump v. Hawaii (2018) - USSC did not apply SS, RBR applied in establishment clause challenge and national security is a legitimate govt purpose

Sherbert/Smith Test

Apply if: 1. The federal law, regulation, policy, or other action is being challenged (USSC more likely to find infringement on Free Exercise); OR 2. A state law, regulation, policy, or other action is being challenged, and ONE of the following is involved: a) the state action is related to unemployment compensation or a program involving individual assessment (Sherbert; Frazee; Thomas); b) there is a hybrid situation in which the P is claiming an effect on religion and another fundamental right (Yader); c) the state action targets religion or otherwise displays animus or hostility toward religion (Lukumi) Apply Smith test if: - the law, regulation, or policy is neutral and generally applicable (USSC less likely to find infringement on Free Exercise) - Argue in the alternative when state law is involved (?)

Content Neutral Ordinances

Are OK if not aimed at content of films, but rather on the secondary effects of the business on the community -IS applies if ordinance is aimed at secondary effects rather than content -Content-neutral time, place, and manner regulations are acceptable as long as they are designed to serve a substantial govt interest and do not limit alternative avenues of communications (similar to narrowly tailored but considers what options remain open for free speech)

Analytical steps after Smith

Ask: 1. Is the law or regulation neutral and generally applicable? If yes, no violation. If law targets religion and is not neutral, court will likely find constitutional violation under Lukumi 2. Even if the law is neutral and generally applicable: Sherbert test applies: Sherbert: consider the burden on religious exercise. Govt interest must be compelling. a) if the law or regulation is about unemployment compensation; OR b) the regulation has a "hybrid" effect on religion and another right; OR c) when federal law or regulation is challenged Sherbert test: ask whether govt action imposes a substantial burden on religion. If so, whether compelling govt interest justifies this burden?

Attack Plan

Ask: 1. What is the infringement/burden on free exercise? If it is substantial, is it justified by a compelling governmental interest? 2. What is the asserted governmental interest?

School Integration

Bc discrimination must be intentional in order to violate the Constitution, only intentional (de jure) segregation in schools violates the Equal Protection Clause A court cannot impose a remedy that involves multiple school districts unless there is evidence of intentional segregation in each district (Miliken v. Bradley) If a school board does not take steps to eliminate intentional racial segregation of schools, a court can order the district to implement measures, such as busing, to remedy the discrimination. Court-ordered busing is temporary, however, and must be terminated once the "vestiges of past discrimination" have been eliminated (Board of Education v. Dowell) Missouri v. Jenkins - state not compelled to create magnet schools in order to attract students from outside the district

Licensing Schemes and CBR

CBR not applied if licensing scheme is facially invalid Shuttlesworth case - City ord: unlawful to hold a parade, procession, or demonstration w/o a permit. A permit was to be granted unless in the commission's judgment the public welfare, safety, health... require that it be refused USSC found the law unconstitutional on its face due to lack of criteria and broad discretion given to the commission.

Vagueness

Can support a facial challenge of the law Concerns: fairness; lack of notice; selective prosecution; allows for too much discretion Constitutional: blocking sidewalk, obstructing traffic, littering streets Unconstitutional: 3 or more ppl on sidewalk annoying to others (Coates) Vagueness argument in Finley rejected bc Congress may have selection criteria that are inherently subjective Jews for Jesus: ban of all speech not protected by first amendment at LAX = vague

Commercial Speech

Characteristics: 1) advertisement of some form; 2) reference to a specific product; 3) speaker has an economic motivation for the speech *Commercial aspects did not negate all First Amendment guarantees (Bigelow v. Virginia)

Religious Clause of the First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof - protect religion from corrupting influence of the state; - protect the state and secular interests from religion; - avoid dominance of any faction through diffuse and decentralized power Free Exercise Clause applied to states through incorporation into the DPC of the 14th Amendment in Cantwell v. Connecticut - Govt can regulate conduct, but not belief Establishment Clause applied to the states in Everson v. Board of Education

Free Speech

Congress shall make no law... or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble... -Applies to the states via the DPC of the 14th Amendment

Religious Freedom Restoration Act (RFRA)

Congress' attempt to restore the Sherbert test

Regulating Polling Places

Court upheld federal law prohibiting distribution of campaign lit within 100 ft of polling place. CGI: to avoid campaign workers intimidating voters around polling places (Burson v. Freeman)

De Jure or De Facto Discrimination

De jure - classification, including segregation on the face of the law or policy as in Korematsu, Plessy, Loving, and Brown. SS applies. De factor - law or policy is neutral on its face, but either applied in a discriminatory manner or has a discriminatory impact. RBR applies UNLESS there is evidence of discriminatory purpose *Disparate or discriminatory impact alone is not enough to heighten scrutiny in an EPC challenge *Evidence of discriminatory purpose is required to heighten scrutiny e.g. Yick Wo v. Hopkins Over 200 waivers sought by operators of Chinese ancestry were denied; all but one waiver by an operator not of Chinese ancestry were granted. *USSC concluded that the law, "neutral" on its face, was administered in a discriminatory manner in violation of the EPC of the 14th Amendment e.g. Flowers - Same prosecutor struck 41/42 black prospective jurors over 6 trials

Quasi-suspect classification: gender

Discrimination based on gender is subject to intermediate scrutiny. - Must be discriminatory intent by govt, disparate impact not enough - Burden on state to show that a statute or regulation that treats sexes differently is substantially related to an important govt interest - Requires govt to show that an "exceedingly persuasive justification" exists for the distinction (such as separate sports team facilities as state universities) are "substantially equivalent" Discrimination against women Intentional discrimination through gender classification will generally be struck down under IS standard (e.g. state law giving preference to men over women to be administrators of decedents' estates was invalid - Reed v. Reed) Discrimination against men Intentional discrimination against males is generally struck down for violating equal protection. Instances of discrimination against men upheld bc of important govt interest: 1) Draft registration of males, but not females (interest of preparing combat troops) 2) Statutory rape law held only men criminally liable for such conduct (interest in preventing teen pregnancy) Court has upheld affirmative action regulations granting beneficial treatment to women over men bc providing a remedy for past gender-based discrimination is an important govt interest

Mosely, Free Speech and Equal Protection

EPC analysis of the law prohibiting all picketing near all schools, except for peaceful labor picketing. *No suspect or quasi-suspect classification, RBR would likely apply (Railway Express) Content-based regulation of speech triggers SS Therefore, it may be worth considering EPC analysis, but Free Speech analysis is likely to lead USSC to heightened scrutiny

Equal Rights Amendment

Equality of the rights under the law shall not be denied or abridged by the US or by any state on account of sex -Strengthen laws on pregnancy discrimination, equal pay, and violence against women

No Excessive Entanglement

Excessive entanglement = unconstitutional - Lemon No excessive entanglement = constitutional - public school teachers providing remedial education in parochial schools

Regulation of Speech

Expressive Conduct: Protected speech can include not only written, oral, and visual communication, but also activities such as picketing and leafleting. Govt regulation of expressive conduct is upheld if: 1) the regulation is within the govt's power to enact (e.g. through a local govt's police power) 2) the regulation furthers an important govt interest 3) the govt interest is unrelated to the suppression of ideas 4) the burden on speech is no greater than necessary US v. O'Brien - prohibition against burning draft cards upheld as furthering the important govt interest in a smoothly functioning draft system Permissible regulation of expressive conduct includes upholding a ban on public nudity, such as nude dancing (City of Erie v. Paps)

Categorical Approach

FSC does not protect speech that 1) incites illegal activity (Bradenburg) 2) amounts to fighting words (Chaplinsky) 3) amounts to true threats (Watts) 4) is obscene (Roth; Paris Adult Theater; Miller) 5) child porn (NY v. Ferber) Rejected: - child porn that does not depict children (Ashcroft) - depictions of cruelty to animals (US v. Stevens) - violent video games sold to minors (brown v. EMA)

Past Discrimination by Govt

For a govt affirmative action program based on race to survive, the relevant govt entity must show more than a history of societal discrimination. The govt must be guilty of specific past discrimination against the group it is seeking to favor; the remedy must be narrowly tailored to end that discrimination and eliminate its effects. - Elimination of past discrimination is a compelling state interest - Attempting to remedy general societal injustice through affirmative action is not

Aid to religious institutions

Govt financial assistance to religious institutions is permitted if the aid is secular in nature, used only for secular purposes, and when the aid is distributed among secular and religious institutions, the distribution criteria must be religiously neutral. - Aid in the form of secular textbooks, computers, standardized tests, bus transportation, school lunches, and sign language interpreters for deaf students has been upheld.

Permitted Prior Restraint

Govt interest for restricting speech: - prevent libel; - protect national security; - safeguard a criminal defendant's right to a fair trial (e.g. limit what jury can say outside the courtroom) E.g. nation at war may prohibit obstruction of recruiting soldiers; publishing details about troops, etc -prohibit publication of obscene materials -prohibit speech that incites violence or overthrow of govt by force

Prior Restraint

Judicial order directing a person not to engage in speech on penalty of being held in contempt Prior restraints are presumptively unconstitutional Most common: -admin system or licensing scheme requiring govt approval before speech; failure to comply could result in penalties -judicial order directing a person not to engage in speech on penalty of being held in contempt *Watch for govt action that occurs before speech can happen as a possible prior restraint E.g. No movie will be shown w/o permit. Permit may be denied if movie is "obscene"

Race, Ethnicity, and National Origin

Laws or regulations that intentionally disadvantage on the basis of race, ethnicity, or national origin have almost always been struck down for failing to advance a compelling state interest. One exception was Korematsu v. US, in which the internment of Japanese Americans during WWII was upheld in the name of national security

Locke v. Davey

Locke sought to use state scholarship funds for a degree in pastoral ministries and was denied. The Free Exercise class does not ensure the right to state-financed religious instruction. (2004) It is not unconstitutional to withhold publicly funded scholarships to students pursuing degrees in theology. The court says it would NOT violate the establishment clause to give scholarship funds to ministerial students, BUT state could also lawfully refuse to do so.

Racial Prejudice is Not a Legit Govt Interest

Loving - concludes incident of slavery and endorsement of white supremacy are not legit govt purposes Palmore - similar to USSC in City of Cleburne, govt cannot give effect to or tolerate private prejudice. No legit govt purpose

Trinity Lutheran

Missouri created a program to pay for resurfacing of playground surfaces Trinity Lutheran owns and runs a Church Child Learning Center with a playground and applied for funding The application received favorable reviews, but was denied bc churches deemed ineligible Test to apply: - State program challenged, thus RFRA does not apply - Not an unemployment case; not a "hybrid" situation - Program not neutral and generally applicable bc it excludes churches from program

Govt When Subsidizing Speech

NEA - requires "taking into consideration general standards of decency and respect for diverse beliefs and values of American public" US v. Amer. Liby Assn - Fed law requires libraries receiving federal funds to block sexually explicit material on Internet Rosenburger - state funding for newspapers but not for religious paper (failed SS)

Limiting Fighting Words

Narrow the doctrine: only applies to speech directed at another person; likely to provoke average person to retaliation 2) find laws vague/overbroad - statutes using words like "opprobrious" and "abusive" found to be broader than fighting words When regulating within categories of unprotected speech, lawmakers cannot single out speech based on content within these categories, unless: 1) the content-based distinction advances the reason why the category is not protected; or 2) the subclass is associated with particular secondary effects of the speech

Secular Effect (not advancing or inhibiting religion)

No secular effect = unconstitutional - law that stated no person could be required to work on their Sabbath Secular effect = constitutional - exemptions from Title VII's prohibition against discrimination on the basis of religion for religious organizations

Secular Purpose (Non-Religious Purpose)

No secular purpose = unconstitutional - law requiring posting of the 10 commandments in public school classrooms (Stone v. Graham) - law authorizing teachers to hold a one minute of silence (Wallace v. Jaffreee) - law requiring public schools to teach "creation science" (Edwards v. Aguilar) Secular purpose = constitutional - law requiring businesses to be closed on Sunday (McGowan)

Is discriminatory intent sufficient to establish EPC violation?

Palmer v. Thompson: Jackson, MS segregated pools, parks, golf links violated EPC City decided to close all public pools - USSC held not violation of EPC bc action impacted whites and blacks - Difficult to determine if racial purpose was the sole motivation Hunter v. Underwood: Alabama law permanently denied right to vote to anyone convicted of crime of "moral turpitude" - Evidence that racial discrimination was a key purpose of the law - Law found in violation of EPC

Establishment Clause

Part of the First Amendment stating that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Three theories: 1. Strict separation - broadest view of EC 2. Neutrality - considers whether govt perceived as "endorsing" religion 3. Accommodation - narrowest view of EC (actual establishment of religion by the govt or coercion)

Sex Discrimination

Past justifications for upholding distinctions based on sex Sex is a protected class and USSC applies intermediate scrutiny to sex-based classifications Two ways to trigger heightened scrutiny/IS: (1) Sex classification on the face of the law or policy; (Craig; Frontiero; Hogan) OR (2) Discriminatory impact AND discriminatory purpose (Feeney)

Lemon v. Kurtzman (1971)

Penn and RI adopted state statutes that allowed the state govts to provide financial support to religious schools. USSC concludes that both programs violate the Establishment Clause and set out three tests: 1) state must have a secular purpose; 2) primary effect must neither advance nor inhibit religion; and 3) must not foster an excessive govt entanglement with religion

Prior Restraints

Prior restraints are generally presumed to be unconstitutional, with limited exceptions: 1) There is a particular harm to be avoided (like publication of troop movements) 2) Certain procedural safeguards are provided to the speaker. Examples: a) The standards must be narrowly drawn, reasonable, and definite (Butterworth v. Smith) b) The censoring body must promptly seek an injunction (Teitel Films v. Cusack) c) There must be a prompt and final judicial determination of the validity of the restraint (National Socialist Party v. Village) - Burden is on govt to prove that the material to be censored is not protected speech - Prior restraints have been rejected even when national security was at issue - Prior restraint must be the only way to accomplish a goal

Affirmative Action

Programs that favor racial or ethnic minorities are subject to SS - Adarand Constructors v. Pena: overruling application of the intermediate standard to federal discrimination - Race may be used as a "plus factor" in determining whether a student should be admitted to a public college or university, as there is a compelling interest in obtaining the educational benefits of a diverse student body - The use of racial quotas or of race as a determinative criterion violates equal protection and is unconstitutional - Race may not be considered unless the admissions process used to achieve a diverse student body can withstand SS - SS requires the university to clearly demonstrate that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary to the accomplishment of its purpose. A university must regularly evaluate available data and tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest (Fisher v. University of Texas

Suppression of Expression

Prohibiting any person from defacing, damaging, or otherwise physically mistreating a flag in a way that the actor knows will seriously offend persons likely to observe his action

Tax exemptions for religious organizations

Property-tax exemptions for religious institutions have been held valid as being equivalent to exemptions given to other charitable organizations and therefore neither advancing nor inhibiting religion. Tax exemptions that are available only for religious activities or organizations, however, violate the Establishment Clause as an endorsement of religion (Texas Monthly v. Bullock)

Discrimination based on Sexual Orientation

RBR applied in Rome v. Evans USSC has not heightened scrutiny on this basis alone -Do transgenders make up a suspect or quasi-suspect class? City of Cleburne considerations: -history of discrimination -immutable characteristic -lack of political power Being transgender bears no relation to ability to contribute to society USSC unlikely to recognize any new quasi-suspect or suspect class, RBR would apply *Govt usually prevails, unless there is evidence of animus or hostility (e.g. Romer, City of Cleburne, Moreno)

Hostile Audience

Raises the question of when an audience reaction to speech can be a basis for suppressing a speaker "incitement to riot" finding to uphold conviction (Feiner) -focus on police ability to control the crowd to overturn convictions

Religious Conduct

Religious conduct is not absolutely protected. Generally, only state laws that intentionally target religious conduct are subject to SS. Neutral laws of general applicability that have an impact on religious conduct are subject only to the rational basis test Targeting religious conduct - SS applies when the govt purposely targets conduct bc it is religious or displays religious beliefs (Church v. City of Hialeah) E.g. city ordinance banning all ritual sacrifice of animals not for the purpose of food consumption struck down as targeting the Santeria religion - A state law that is designed to suppress activity bc it is religiously motivated is valid only if it is necessary to achieve a compelling govt interest - Neutral state laws of general applicability that have the incidental effect of interfering with one's ability to engage in religious practices are subject only to the rational basis test E.g. criminalization of peyote that did not contain an exception for use in Native American religious rituals upheld, as the ban was not motivated by any desire to burden religious conduct (Employment Div. v. Smith) E.g. parent's right to pray over a child who has contracted meningitis, rather than seeking medical assistance, may be limited by state child-neglect and manslaughter laws. Parents do not have the right to endanger the lives of their children on the grounds of freedom of religion (Prince v. Mass)

Equal Protection

State action: The equal protection clause of the 14th Amendment provides that "no state shall... deny to any person within its juris the equal protection of the laws." The clause applies only to states and localities Federal action: Although there is no federal equal protection clause, the SC has held that the 5th Amendment Due Process Clause includes the rights guaranteed by the Equal Protection Clause, thereby making discrimination by the federal government subject to review under the same standards as discrimination by the states

Religious Conduct: access to benefits

SS applies when the govt purposely denies a religious entity access to an otherwise available public benefit purely on account of its religious status - Avoidance of entanglement of church and state is not sufficient govt interest to justify denial - Trinity Lutheran Church v. Comer: church-run preschool could not be denied, solely on the basis of its religious status, a state grant to resurface playground - Locke v. Davey: state not required to fund degree in devotional theology as part of a state scholarship program

Higher Education & Affirmative Action

School reserved 16 seats in the 100-person class for minority students - Schools could consider race in admissions decisions (diversity is CGI) - Quota system is not necessary to achieve this goal. Race + other factors could be used to achieve diversity - After Grutter, diverse student body is a CGI in higher education context (not K-12 context), issue is ends/means fit Fisher I - state must demonstrate that no workable race neutral alternative would achieve the educational benefits of diversity Grutter - 1) Diversity was broadly defined in the admission plan, and not limited to race 2) Admission plan upheld bc race was only one consideration among several as part of a highly individualized holistic review

Strict Scrutiny (SS)

Suspect Classifications: Laws that categorize based on race, ethnicity, national origin, or alienage are considered suspect and therefore require closer judicial examination. Such laws are subject to strict scrutiny and are invalid unless they are necessary to achieve a compelling govt interest 1) The law must be the least restrictive means to achieve a compelling governmental interest 2) The burden is on the government to prove that the law is necessary. Bc SS test is a very difficult one to pass, the govt rarely meets its burden, and most laws subjected to this standard of review are struck down 3) The SS test is applied if a suspect classification is involved. The suspect classifications are race, ethnicity, national origin, and if the classification is by state law, alienage *Least deferential, govt nearly always loses, except in Korematsu

Tax deductions and aid for parochial school expenses

Tax deductions given to reimburse tuition expenses only for parents of students in religious schools are invalid (Mueller v. Allen) - Giving parents tuition vouchers to assist them in paying religious-school tuition does not violate the Establishment Clause if the choice of whether to use the vouchers for religious or non-religious private school tuition lies with the parents (Zehman v. Simmons-Harris) - States may deny state funds to a student pursuing a religious career w/o violating the Free Exercise Clause (Locke v. Davey - denial of state scholarship funds to a student seeking a career in religious instruction did not violate the Free Exercise Clause bc the state was free to choose not to fund a distinct category of instruction to avoid the establishment of religion

Freedom Not to Speak

The First Amendment protects not only freedom of speech, but also freedom not to speak E.g. a child's right not to recite the Pledge of Allegiance (W. Virginia v. Barnette)

Freedom of Religion

The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Both the Establishment Clause and the Free Exercise Clause have been incorporated into the Due Process Clause of the 14th Amendment and are therefore applicable to the states Establishment: When a govt program shows preference to one religion over another, or to religion over non religion, SS applies (Board of Education v. Grumet - creation of special school district to benefit members of one religion invalid) Standard of Review: Not every govt action that impacts religion is unconstitutional. To determine whether a particular program violates the Establishment Clause, the Court has applied Lemon v. Kurtzman A govt action that benefits religion is valid if: 1) It has a secular purpose 2) Its principal or primary effect neither advances nor inhibits religion; and 3) It does not result in excessive govt entanglement with religion Though still applied, the Lemon test has been modified or set aside in the SC's most recent Establishment Clause cases

Freedom of Expression and Association

The First Amendment provides that "Congress shall make no laws...abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the govt for a redress of grievances. Freedom of expression is not absolute. While govt regulation of the content of speech is severely constrained, govt regulation of the time, place, and manner of speech is subject to less restriction.

Free Exercise

The Free Exercise Clause of the First Amendment has been construed to include two freedoms: the freedom to believe and the freedom to act The degree of protection that individuals are afforded from governmental interference in religion depends on whether religious belief or conduct is involved

Public School Activities

The following practices have been held invalid as promoting religion: 1) Prayer and bible reading (Engel v. Vitale) 2) A designated period of silence during the school day for "meditation or voluntary prayer" lacking any secular purpose (Brown v. Gilmore - divided court holding that short periods of mandatory silence did not necessarily implicate the establishment of religion) Moment of silence requirements with dual legitimate purposes (e.g. a secular purpose along with a purpose to accommodate free exercise of religion) satisfy the first Lemon prong and may still pass the Lemon test 3) Nondenominational (nonsectarian) prayer at school events (Lee v. Weisman - prayer led by a cleric at a graduation ceremony) (Santa Fe Indep School District v. Doe - school policy of student-led prayer at HS football games) (Town of Greece v. Galloway - prayer before sessions of town council did not violate Establishment Clause due to tradition of such prayers and lack of coercion with regard to participation by nonbelievers) 4) Posting the 10 Commandments on public school classroom walls (Stone v. Graham) 5) Prohibiting the teaching of Darwinism (human biological evolution) or mandating that such teaching be accompanied by instruction regarding "creation science" (Edward v. Aguillard)

Religious Belief

The freedom to believe in any religion or none at all is absolutely protected and cannot be restricted by law - Govt may not deny benefits or impose burdens based on religious belief (Cantwell v. Connecticut) - It may not require affirmation of a belief (West Virginia State Board of Edu v. Barnette) - It may not determine the reasonableness of a belief, although it may determine the sincerity of the person asserting that belief (US v. Ballard) - When there is a property dispute between two religious groups, a court may not decide Qs of religious doctrine, but may apply religiously neutral principles of law to resolve the dispute (Jones v. Wolf)

Proving Discrimination

To trigger SS or IS, there must be discriminatory intent on the part of the govt - The fact that legislation has a disparate effect on ppl of different races, genders, without intent, is insufficient - Discriminatory intent can be shown facially, as applied, or when there is a discriminatory motive 1) Facial discrimination: A law that, by its very language, creates distinctions between classes of persons (e.g. an ordinance states that only males will be considered for a city's training academy for firefighters) 2) Discriminatory application: A law that appears neutral on its face may be applied in a discriminatory fashion. To invalidate the law, the challenger must prove that a discriminatory purpose was used when applying the law (e.g. a city's ordinance concerning the police academy says nothing about gender, but in practice only men are considered for admission) 3) Discriminatory motive: A law that is neutral on its face and its application may still result in a disparate impact. By itself, however, a disparate impact is not sufficient to trigger SS or IS; proof of discriminatory motive or intent is required to show violation of the Equal Protection Clause (Arlington Heights v. Metropolitan Housing) e.g. a city's paramedic training school is theoretically open to both men and women, but the entrance test includes a height requirement that disproportionately excludes women

Overbreadth Issues

USSC requires showing that the challenged govt action be substantially over broad In evaluating challenges, USSC will consider decision by state court that narrowly construes an over broad law Govt action sweeps in substantially more speech than permitted by 1st Amendment: - ordinance banning all live entertainment - ord. making it unlawful to interrupt police officers in performance of duties; - LAX resolution banning all first amend. activities at LAX "Use of opprobrious words or abusive language, tending to cause breach of peace" - substantially overbroad and no narrow construction by state courts

Racial Classifications Benefitting Minorities

Why SS? Remedy Past Discrimination - Fullilove - no finding that the fed govt engaged in past discrimination - Paradise - proven intentional discrimination - Wygant - settlement of discrimination lawsuit Is the govt interest compelling? Yes - diversity in higher education Yes - remedy for past discrimination No - societal discrimination (alone not CGI No - racial balancing Adarand - SS required for all racial classifications (whether federal or state)