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INCLUDEPICTURE "" \* MERGEFORMATINET Application of the Bill of Rights to the States; P & I Clause of the 14ABarron v. Mayor & City Counsel of Baltimore, 1833 The Bill of Rights, specifically the 5A’s guarantee that government takings for public use require just compensation, are only restrictions on the federal government and do not apply to state or local governments Wharf was ruined because city made water too shallow for boats Original set up – federalism, worry of the federal government being remote form people’s lives, wanted limits on the federal government – if it was going to be applied to the states, it would have saidSlaughter-house cases, 1872The 13A solely prohibits slavery as experienced by Africans in the US before the Civil War, and the 14A (which is largely geared towards the protections of emancipated slaves and African Americans) only protects rights guaranteed by the US and not the individual states 13-14A only apply to former slaves Butchers arguing that putting them all together in one place is slavery (it was not) 13A applies to private actions – slavery is unconstitutional if state or private Saenz v. Roe, 1999 Court applies privileges or immunities clause for nearly first time in history Under the Privileges or immunities clause, a state must provide the same benefits for new residents as it does for other residents The P&I clause protects the right to travel by allowing citizens to move freely between states, securing the right to equal treatment in all states when visiting, and securing the rights of new citizens to be treated the same as long-term citizens living within the state Reapplied the P&I clause of the 14A because Ca. discriminated against new and old citizens The incorporation of the bill of rights into the due process clause of the 14A Because of the slaughter-house cases, the application of the bill of rights to the states could not be done through the Privileges or Immunities clause Have to look to due process clause of the 14A Adamson v. California, 1947 – trying to figure out how to incorporate the bill of rights/how much to incorporate Duncan v. Louisiana, 1968 Scotus holds that the 6A right to jury trial is applicable to states – the right is fundamental and is applicable to states through due process clause of the 14A Selective incorporation doctrine: the view that provisions of the Bill of Rights should be selectively applicable to the states under the due process clause of the 14A as opposed to complete incorporation Debate over incorporation centered on three issues 1) debate over history and whether the framers of the 14A intended it to apply the bill of rights to the states 2) Federalism: applying the bill of rights imposes a substantial set of restrictions on state and local governments 3) Appropriate judicial role Macdonald v. City of Chicago, 2010 A bill of rights guarantee applies to the states if it is fundamental to the nation’s scheme of ordered liberty or deeply rooted in the nation’s history and tradition Individual self-defense if the central component of the 2A right to keep and bear arms and is deeply rooted in the nation’s history and tradition Keeping and bearing arms = individual right, therefore, due process clause of the 14A incorporates the 2A right Timbs v. Indiana, 2019 – court said that property owners culpability, the extent of their misconduct, and their financial circumstances all must factor into the 8A inquiry Ramos v. Louisiana, 2019: right to unanimous jury verdict when 12-person jury Requirement for State ActionThe application of the Bill of rights and the Constitution to Private conduct Requirement for state action Protections apply only to the government Private conduct generally does not have to comply with the constitution State action doctrine: the principle that the constitution and its protection of rights and equality applies only to the government. Private conduct does not have to comply with the constitution Limits on what a private individual can sue or against another private individual Regulates what congress can regulate pursuant to the bill of rights Exceptions to state action Public function: private entity must comply with the constitution if performing a task that is traditionally and exclusively done by the government Entanglement: constitution applies if the government affirmatively authorizes, encourages, or facilitates private conduct that violates the constitution – either the government must cease its involvement with the private actor or the private entity must comply with the constitution Typically arises in: Judicial and law enforcement actions Government licensing’s and regulation Government subsidies Voter initiative permitting discrimination The civil rights cases, US v. Stanley, 1883 Under the equal protection clause of the 14A, congress may only prohibit discrimination by state actors, not private individuals Marsh v Alabama, 1946 (private owned town v. Jehovah Witness) 1A and 14A protections of speech and religion still apply to individuals when operating in a privately-owned town if the town is open to the public and used for public purposes The more private land is opened up to the public, the more they lose 1A and 14A rights Private entity must comply with constitution if performing a task that is traditionally and exclusively done by the government Constitution applies to private entity that acts like a government body Jackson v. Metropolitan Edison Co., 1974 The purposes of 14A, an action of a private entity will only be treated as state action if there is sufficiently close nexus between the state and the challenged action of the private entity so that the action of the latter may be fairly treated as that of the state itself – language from Marsh Due process clause of the 14A does not restrict the actions of a privately-owned electricity company Arguments that public function: Monopoly, public necessity, sufficiently close nexus. Terry v. Adams, 1953 (Jaybird Democratic Association) Private organization’s primary election constitutes a public functionA private political party that controls the outcome of elections engages in state action thereby making it subject to the 15A The Fifteenth Amendment does not permit the exclusion of African American voters from primary elections run by private parties when those elections ultimately influence later publicly-run elections.Evans v. Newton, 1966 (park) Where the tradition of municipal control and public use of a park has been firmly established, park managers cannot discriminate against African Americans if the management becomes private. Operating a park is a public function; blacks may not be constitutionally excluded Manhattan Community Access Corporation v. Halleck, 2019 Private = state action when: When the private entity performs a traditional exclusive public function When the government compels the private entity to take a particular action When the government acts jointly with the private entity Hudgens v. National Labor Relations Board, 1976 (private mall) People entering privately-owned shopping center have no 1A rights A private shopping mall may constitutionally exclude picketing on its premises even if that picketing relates to the actual activities of its tenant stores Shelly v. Kraemer, 1948, judicial and law enforcement actions Black property buyers v. white neighbors State enforcement of racially restrictive covenant constitutes state action that violates the equal protection clause of the 14A – judicial enforcement is state action. Judicial enforcement of discriminatory private agreement constitutes state action for 14A purposes Can be controversial, everything could be state action under Shelley, but never taken that far Right to acquire property is essential in 14A – that’s the state action Lugar v. Edmondson Oil Co., 1982, prejudgment attachment A debtor has a claim under the 14A and USC 1983 when a state wrongfully grants an attachment of his property to a private individual Using court and sheriff to execute attachment may violate debtor’s due process rights – using the court and government officials to seize property without due process of law involves state action for purposes of the 14A The conduct at issue must be “fairly attributable” to a state actor. There are two steps for finding state action. Firstly, if the deprivation is caused by the exercise of some right or privilege created by the state, or by a rule of conduct imposed by the state or by a person for whom the state is responsible. Secondly, the party charged with the deprivation must be a person who may be fairly said to be a state actorPeremptory challenges: the ability of a litigant to excuse prospective jurors without showing cause a limited number of challenges each side in a trial can use to eliminate potential jurors without stating a reason Edmonson v. Leesville Concrete Co., 1991 A private litigant case may not use peremptory challenges to exclude jurors on account of their race because the exercise or peremptory challenges invokes states action Race-based peremptory challenges by private litigant violate 14A When a private litigant in a civil action makes peremptory challenges based on the juror’s race, he violates the equal protection clause of the 14A Burton v. Wilmington Parking Authority, 1961 Lessee from state must comply with 14A When a state becomes entangled in a private party’s actions so that the state and the private party have a symbiotic relationship, the private party must comply with the 14A Moose Lodge No. 107 v. Irvis, 1972 Black man denied service at public club A private club that obtains a state liquor license does not necessarily engage in state action for purposes of the 14A – granting liquor license does not implicate state in private discriminationThe Rise and Fall of Lochnerism (Substantive Economic Due Process) and the Contracts ClauseSubstantive due process issues Cannot have your right taken away unless you have the procedure Substantive rights (invasion of these rights are so against person autonomy) Abortion/reproductive rights The right to due/assisted suicide/right to have nutrition withdrawn from you Contracting Gay sex Economic Liberties Economic liberties generally refer to constitutional rights concerning the ability to enter into and enforce contracts; to pursue a trade or professional and to acquire, possess, and convey property Framers intending to protect economic rights Freedom to contract as a basic right under the liberty and property provisions of the due process clause After 1937, law changed dramatically. Court adopted a policy of great deference to government economic regulations. No longer did the court protect freedom of contract under due process nor dud the court impose limits on congress's ability to regulate the economy based on federalism or on narrow definitions of federal powers Liberty of contract Trying to protect the freedom to contract – court was trying to protect individual rights Contracts clause: constitution says you cannot impair a K once K was made the state cannot take away obligations of one party to the K Different from economic due process, which is the state not being to pass legislation saying you cannot do a certain type of K Economic Substantive Due ProcessNeither the federal government nor state governments can deprive any person of life, liberty, or property without due process of law 5A + 14A Procedural due process: procedures that government must follow when it takes away a person’s life, liberty, or property Substantive due process: whether the government has an adequate reason for taking away a person's life, liberty, or property Sufficiency of the justification Substantive due process of the Lochner Era Allgeyer v. Louisiana, 1897 Liberty, as used in the 14A, means not just the right of a citizen to be free from physical restraint, but also free to enjoy all faculties and to sue them in all lawful ways State cannot prevent what federal constitution allows The freedom protected by the due process clause of the 14A includes economic freedoms and prohibit a state from preventing its citizens from contracting with foreign insurance companies to insure property located within the state General right to make a K in relation to business is part of liberty of the individual which is protected by the 14a Lochner v. NY, 1905. (Baker shop act – limiting hours of bakers) A state may not regulate the working hours mutually agreed upon by employers and employees as this violates their Fourteenth Amendment right to contract freely under the Due Process Clause.????????Legislation enacted using a state’s police powers that interferes with an individual’s right to contract must directly relate to the goal of protecting public health or safety and must have an appropriate and legitimate end.Muller v. Oregon, 1908, Maximum hours laws – women in need of special protection . . . The general right to K in relation to one’s business is not absolute, but instead is subject to reasonable restrictions placed upon that right by government Under 14A, a state may constitutionally limit the working hours of women and not men because of the state’s strong interest in promoting the health of women as the “weaker sex” Adkins v. Children’s Hospital, 1923, Minimum wage laws States may not set a minimum wage for women Freedom to K is the general rule and the exercise of legislative authority to infringe upon that freedom the exception must be justified by the existence of exceptional circumstances Under the due process clause of the 5A, congress cannot make a law regulating the federal minimum wage for women as this violates the freedom of K Weaver v. Palmer Bros. Co., 1926, consumer protection legislation Shoddy bedding – state cannot ban blankets that “may be” substandard because they are not “dangerous” A state may not enact consumer protection legislation when no significant public health and safety concerns exist, or when such concerns may be easily alleviated Laws aimed at protecting public health must be the only reasonable way to eliminate a known health risk. End of Lochnerism Pressures for change – the depression Three big things from the Lochner Era Freedom of K was a right protected by due process in 5/14A Government could interfere with freedom of K for valid police power purpose Strict scrutiny West coast hotel v. Parrish, 1937A state may regulate the minimum wage paid to female employees when that regulation is for the purpose of promoting employee’s health, safety, and general welfare Regulation that is reasonable in relation to its subject and is adopted in the interest of the community satisfies the due process clause of 14A United States v. Carolene products, 1938 Court applies rational basis test and upholds ban on filled milk Congressional legislation of common commercial products will be scrutinized under a rational basis testWhen reviewing legislation, the existence of facts supporting the legislation is to be presumed and such legislation shall not be pronounced unconstitutional unless it is of such character as to preclude the assumption that it rests upon some rational basis Legislature doesn’t even have to have factual findings that support what they are doing, as long as a rational person could think of and express any state of facts that might support the legislation, then the legislature can do that and the judiciary cannot interfere Within economic rights and economic legislation Economic substantive due process since 1937 Not one state or federal economic regulation has been found unconstitutional since 1937 as infringing liberty of contract as protected by due process clauses of 5A and 14A. Court made clear that economic regulations, laws regulating business and employment practices, will be upheld when challenged under the due process clause as long as they are rationally related to a legitimate governmental purpose Williamson v. Lee Optical of OK, 1955 From now on, all economic regulations presumed constitutional Economic legislation will be upheld so long as there is any conceivable justification for it The contracts clause Article I, §10 provides that no state shall pass any law impairing the obligation of contracts Only applies if state of local government is interfering with the performance of already existing contracts – does not apply to the federal government Home building & loan association, v. Blaisdell, 1934, the modern use of the K clause In times of economic emergency or other exigent circumstances, states may impose increased limitations on the freedom to contract if those limitations help address the emergency.Test: when a state/local government interferes with existing private contract: Is there substantial impairment of the k-relationship? If so, does it serve a significant and legitimate public purpose? If so, is it reasonable related to achieving the goal? Privacy: Family and Autonomy (Substantive Due Process and Privacy)Fundamental rights under due process and equal protection Certain liberties are fundamental rights that the government cannot infringe on unless strict scrutiny is met – the government’s action must be necessary to achieve a compelling purpose Substantive due process: the government must justify an infringement by showing that its action is sufficiently related to an adequate justification so contrary to something (kind of) in the constitution that you couldn’t call it due process – it’s so bad that it cannot be dignified by due process terms Procedural due process: when the government takes away a person’s life, liberty, or property, it must provide adequate procedures If not fundamental rational basis review If a right is safeguarded under due process, the constitutional issue is whether the governments interference is justified by sufficient purpose If the right is protected under equal protection, the issue is whether the government's discrimination as to who can exercise the right is justified by a sufficient purpose Distinction: If a law denies the right to everyone - due process If a law denies the right to some but allows others - equal protection Framework for analyzing fundamental rights Is there a fundamental right? Is the right infringed? Is the government’s action justified by sufficient purpose? Are the means sufficiently related to the goal sought? Less restrictive means analysis If fundamental, generally will prevail only if meet strict scrutiny Constitutional protection for family autonomy Right to marry Recognized that the right to marry as a fundamental right protected under due process clause Loving v. Virginia, 1967 A state may not restrict marriages between persons solely on the basis of race under the equal protection and due process clauses of the 14A Zablocki v. Redhail, 1978The right to marry is a fundamental right, and any legislative attempts by a state to limit that right are unconstitutional unless they are narrowly-tailored to the accomplishment of an important governmental purpose Boddie v. Connecticut, 1971 The Due Process Clause of the Fourteenth Amendment prohibits a state from denying, solely on the basis of inability to pay, access to its courts to indigent individuals who seek in good faith judicial dissolution of their marriages.If you want a divorce, had to pay certain fees Right to marry is an important right, if you cannot get a divorce, you cannot marry, state had the monopoly on divorce -- state was impairing your right to marry if they didn’t let you get a divorce California v. Jobst, Right is not violated unless there has been a direct and substantial interference Slight interference: disabled cannot get benefits once married unless married to another disabled person Constitutional because dependent on wage earner, when you get married, its okay for the legislature to depend on their spouse United states v. Windsor, 2013A federal statute excluding same-sex couples from the definition of marriage for purposes of federal benefits is unconstitutional.Obergefell v. Hodges Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, states must issue marriage licenses and recognize lawful out-of-state marriages for same-sex couples.Right to custody of one’s children Parents have a fundamental right to custody of their children Stanley v. Illinois: all parents are entitled to a hearing to determine their fitness before the state deprives them of custody of their children Right to raise children (biology +) – have to actually act like a father Michael H v. Gerald D, 1989: the right of a potential natural father to assert parental rights over a child born into a woman’s existing marriage with another man is not traditionally recognized in historical jurisprudence and is not a fundamental right protected by the due process clause of the 14A Right to keep a family together Includes extended family Moore v. City of East Cleveland, Ohio, 1977: the right of related family members to live together is fundamental and protected by the due process clause and necessarily encompasses a broader definition of family than just members of the nuclear family Strict scrutiny once decided it was tradition with extended family Right of parents to control the upbringing of their children Meyer v. Nebraska, 1923: A state may not prohibit the teaching of foreign languages to a young child in school when such teaching has been requested by the child’s parent because this interferes with the fundamental liberty interest of a parent to control his or her child’s education.Right of parents, free speech, religion, Pierce v. Society of the sisters of the Holy names of Jesus and Mary, scotus, 1925: Requiring children to be educated only by public instruction violates the Fourteenth Amendment of the United States Constitution.Troxel v. Granville, scotus, 2000: Under the Due Process Clause, a state court may not grant visitation rights to a person, even when doing so would be in a child’s best interest, if those visitation rights are opposed by the child’s parent because doing so interferes with the parent’s fundamental liberty interest in rearing his or her child.Statute says "any person at any time can petition for visitation" US v. Windsor – gay marriage Hawaii was the first state to say there was sex discrimination Obergefeld v. Hodges Right to Marry is a fundamental right and couples of the same sex are not to be excluded from that right?4 principlesIndividual Autonomy - choice of who to marryRight to enjoy intimate expressionProtect children and families - kids without married parents suffer?Marriage is a keystone to our nation’s social order?First three are about individual liberties and fourth is about social supportRational basis review: if any rational reason can see that the basis for the law is constitutional, we good Privacy: Procreation, contraceptives, and abortionGET TIME LINE FROM TOMMY Scotus recognized three aspects of reproductive autonomy as fundamental rights: Right to procreate Right to purchase and use contraceptives Right to abortion Right to procreate Buck v. Bell, 1927: right to reproduce is not a fundamental liberty (sterilization of the feeble minded) – Overruled (mostly) Skinner v. Oklahoma, 1942: forced sterilization of criminals – any law requiring the sterilization of certain persons is reviewed with strict scrutiny lest invidious discriminations are made in violation of the constitutional guaranty of equal protection Right to purchase and use contraceptives Griswold v. Connecticut, 1965: birth control advisor convicted for providing contraception advice to married couplesAn implied “right of privacy” exists within the Bill of Rights that prohibits a state from preventing married couples from using contraception. There exists a constitutional right of privacy, implied from the 4/5/9A, that cannot be invaded by government actions absent a showing that the government action at issue is necessary to accomplish a compelling governmental interestScotus concluded that the Constitution recognizes and protects a broad right pf personal privacy, which right shields the use of contraceptives by married persons from governmental intrusion Eisenstadt v. Baird: cannot ban distribution of conceptive to a group of people If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to carry or conceive a childCarey v. Population Services International: court protected the right to purchase and use contraceptivesRight to abortion Roe v. Wade The constitutional right to privacy protects a woman's right to choose to have an abortion/the constitutional guarantee of privacy includes a qualified right to obtain an abortion Criminal abortion statutes that only permit the termination of pregnancy when the life of the mother is in danger are unconstitutional Facts: Article 1196 of the Texas Penal Code restricts legal abortions to those “procured or attempted by medical advice for the purpose of saving the life of the mother.” Roe (plaintiff), a pregnant single woman, brought suit against Wade (defendant), a Texas state official, on the grounds that the statute was an unconstitutional restriction on her right to obtain an abortion. The federal district court considering the case issued declaratory, though not injunctive, relief stating that the Texas statute was void for its overbreadth, vagueness, and infringement on Roe’s Ninth and Fourteenth Amendment rights. Roe appealed the denial of injunctive relief to the United States Supreme Court.Holding: The constitutional right to privacy protects a woman’s right to choose to have an abortion. However, abortions may be regulated by a state after the first trimester of pregnancy and may be completely prohibited after the point of “viability” of a fetus unless necessary to preserve the health of the mother. Historically, women have had a greater right to terminate their pregnancies than they currently mon law was unclear on if abortion was considered a crime or not, was more negative in the states than elsewhere State interest in first trimester: there is none At this point, an abortion is totally safe State interest in the second: still limited interest Pretty safe still Sanitary conditions Health of the mother - kind of state interest, don’t use a coat hanger Third trimester: state interest in protecting potentiality of human life There are three reasons for the gradual increase in strictness in anti-abortion laws. Firstly, decreasing the availability of abortion is seen as a way to decrease illicit sexual activity. Secondly, concerns over the safety of abortion procedures prompted a decrease in its prevalence to protect the health of women. Finally, states increasingly note their own interest or duty in protecting prenatal life. The Court must analyze the right of women to obtain abortions against the backdrop of these countervailing state interests. The Constitution does not explicitly mention a right to personal privacy, but such a right is implied from various aspects of the Bill of Rights. The “zone of privacy” implied in the Constitution is broad enough to encompass a woman’s right to choose to terminate her pregnancy. However, this holding is qualified by noting that the right is not unlimited and must be considered against important state interests in regulation. Regulation limiting a “fundamental right” of privacy must be justified by a compelling state interest, and legislative enactments must be narrowly tailored to further that interest. Applying this test to the abortion issue, a woman’s privacy interest outweighs any countervailing state interests during the first part of her pregnancy when abortion is deemed relatively safe and when the fetus is very early in its development. However, at some point in the pregnancy, the potential dangers to the mother of a later abortion and the increased development of the fetus as a potential person outweigh the right of the mother to privacy. Thus, state interests grow in substantiality as the woman approaches term and, at a certain point during pregnancy, became compelling enough to override her general right to privacy. With respect to the state’s interest in protecting the health of the mother, the interest becomes compelling at approximately the end of the first trimester (first three months of pregnancy), when performance of an abortion becomes increasingly risky. A state’s interest in protecting potential life becomes compelling at viability, or whenever the fetus is capable of a meaningful life outside the mother’s womb. A state can prohibit abortion after viability, except when it is necessary to protect the life of the mother. Measured against these standards, Article 1196 of the Texas Penal Code overly restricts abortions in allowing them only when necessary to save the life of the mother. The statute is unconstitutional, and the district court’s decision is reversed.Concurrence: Burger: The Texas abortion statute impermissibly restricts abortions for the purpose of preserving the health of pregnant women.Concurrence: Stewart The?Griswold?majority attempted to rely on other bases for its judgment than the “liberty” interests protected by substantive due process. In the same way, the liberty interest at stake in the present case—the right of a woman to choose an abortion—is best supported by substantive due process provisions, rather than a vague right to privacy such as that outlined in?Griswold.Concurrence: Douglas The case is governed by the holding in?Griswold v. Connecticut, 381 U.S. 479 (1965), recognizing a constitutional right to privacy. The right to an abortion is included in the basic rights governing marriage and family decisions protected by?Griswold?and is derived from various amendments in the Bill of Rights. The right of privacy is ultimately subject to a balancing test including compelling state interests. The majority is correct that the right exists for women and is not outweighed by such interests in the present case.Dissent: White Nothing in the language or history of the Constitution supports the majority’s judgment. The majority simply creates a new constitutional right for pregnant mothers, investing it with sufficient constitutional authority to override many existing state anti-abortion statutes. The majority completely overrides the political process and denies voters across the nation the ability to weigh in with their beliefs on this important issue.Dissent: Rehnquist The constitutional right of privacy is not implicated in the present case. The Texas statute bars a licensed physician from performing a medical procedure on a woman. Such a transaction is not “private” in the traditional sense of the word. As such, the Texas regulation of abortion should be treated similar to other economic and social regulations and upheld if it has a rational relation to a valid state objective. Even under this test, the Due Process Clause of the Fourteenth Amendment would limit any state statute that seeks to prohibit all abortions, even when the life of the mother is in jeopardy. Such an absolute statute likely would not be found rationally related to a legitimate state objective, as states have a strong interest in preserving the health of women. In the same vein, however, the majority’s sweeping invalidation of any restrictions on abortion during the first trimester of pregnancy ignores any state interest in the potential life of the fetus and is impossible to justify under a rational basis standard. In addition, the entire trimester system itself, as defined by the majority, is reflective more of a legislative than a judicial judgment. The majority creates a right that does not exist in the Fourteenth Amendment. All regulation powers over abortion should be left entirely to state legislatures.Analysis: One of the more controversial holdings in the history of the modern Supreme Court, Roe v. Wade is also one of the more significant and far-reaching decisions in its effect on the law of fundamental rights and substantive due process and the right of privacy. In holding as it does, the Court finds that the right of privacy contained in the penumbras of the Fourteenth Amendment is extremely broad, encompassing a woman’s prima facie right to terminate her pregnancy. One major criticism that has been levied against the decision in Roe involves Justice Blackmun’s determination of when each of the enumerated state interests becomes sufficiently compelling to override the pregnant woman’s right to privacy and bodily autonomy. Justice Blackmun notes that there is widespread disagreement as to when life begins, yet he delineates strict time periods when the various conflicting interests become entitled to governmental protection. Roe has also been criticized as a modern example of Lochnerizing, or the permitting of extensive judicial intervention into state legislative schemes. Many have argued that the Court went outside of its judicial function and transformed itself into a legislature. Justice Rehnquist agrees that the Court went too far, noting in his dissent that “[t]he decision to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.”Roe v. Wade: strict scrutiny Undue burden – if the purpose and motive is to place an obstacle in the way of a woman getting an abortion Planned parenthood v. Casey, 1992 Re-affirmed a woman’s right to abortion but holds that the Roe v. Wade trimester system is no longer the law A state abortion regulation places an undue burden on a woman’s right to an abortion and is invalid if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.Undue burden: if the purpose or effect of a law is to place a substantial obstacle in a woman's way seeking an abortion before the fetus is viable The state can regulate and place restrictions on abortion so long as those regulations do not impose an undue burden on the woman's ability to make the abortion decision; when an undue burden results, the regulations are unconstitutional “Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that, through the course of this Court's decisions, it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has, of necessity, been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing.”The essential holding is that Rose should be retained and reaffirmed Constitution as protecting only negative liberties, not affording positive protection for exercising a protected right Maher v. Roe: state actor withholds funding for elective abortions while providing funding for childbirth Roe only protects pregnant persons from state intrusions, does not create a right to state help to exercise the right against state intrusion Harris v. McRae: state actor withholds funding for medically necessary abortions (except to save the life of a pregnant person) Spousal consent/notification Contemporary understanding of marriage, two separate people Planned Parenthood v. Danforth, on the question of spousal consent, to say that the state cannot delegate to someone other than the rights holder a veto power that the state itself does not have.The notification issue is in Casey. The relevant analysis there is again that the pregnant person is a rights holder. The statute in question has four methods for a pregnant person (a gravida) desiring an abortion to bypass the requirement that she notify her husbandPrevious Student Outline Right to AbortionThe Recognition and Reaffirmation of the Right to AbortionRoe v. Wade (1973): Statute that bans all abortion, except those in the case of the health of the mother, without regard to pregnancy stage and without recognition of other valid interests, infringed the Due Process Clause of the 14th Amendment. In the first trimester, the abortion decision and its effectuation MUST be left to the medical judgment of the pregnant woman’s attending physician.STRICT SCRUTINYDuring the second trimester, the State, in promoting its interest in the health of the mother, may if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. After viability, the State in promoting its interest in potentiality of human life may, if it chooses, regulate (or ban) abortion except where it is necessary for the preservation of the life or health of the mother.Also, the State may define the term physician to mean only a physician currently licensed by the state and may ban abortions by a person who is not licensed.Planned Parenthood v. Casey (1992):Strict Scrutiny is abandoned and replaced with Undue Burden.Undue Burden: Undue burden exists if the purpose or effect of the law is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.Roe’s Trimester Framework REJECTEDState’s Life Interest RULE: Throughout the pregnancy, the state may take measures to ensure the woman’s choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion. BUT these measures CANNOT be an undue burden on the abortion right.State Health and Safety Regulation RULE: Throughout the pregnancy, a state may enact regulations to further the health or safety of a woman seeking an abortion. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the abortion right.Reaffirmation of Abortion: A State CANNOT prohibit any woman from making the ultimate decision of getting an abortion before viability.RULE: A State may, subsequent to viability, ban abortion, but ONLY IF there is an exception for the life or health of the mother. Government Regulation of AbortionAfter Casey, the government can regulate abortions performed prior to viability as long as there is not an undue burden on access to abortions.Bans on Abortion Methods: Gonzales v. Carhart (2007)Government Interests in Regulating Abortion: (1) Health of the mother, (2) Respect for human life, (3) Respect for the Medical Profession.RULE: Banning of partial birth abortion does NOT pose an undue burden on the abortion right. Statute falls within the State Health and Safety regulation from Casey because the regulation was enacted based on Congress’s determination that partial birth abortions were less safe (maybe not true) than regular abortions. BUT, this is only facially valid. An as applied challenge may render the partial birth abortion ban unconstitutional if it is determined that this regulation does not further the health or safety of women getting abortions. Regulation through Waiting Periods: Planned Parenthood v. Casey (1992)HELD: 24 hour waiting period is constitutional because the idea that important decisions will be more informed and deliberate if they follow a period of reflection does not strike as unreasonable. Regulation through Informed Consent Requirements: Planned Parenthood v. Casey (1992)RULE: A state may give truthful, non-misleading information about the nature of the abortion procedure, the attendant health risks and those of childbirth, and the probable gestational age of the fetus, so that a mother may give informed consent. Government Restriction on Funds and Facilities for AbortionsMaher v. Roe (1977): Supreme Court has consistently held that the government is NOT constitutionally required to subsidize abortions even if it is paying for childbirth.Harris v. McRae (1980): Court upheld constitutionality of the Hyde Amendment which denied public funding for medically necessary abortion except where necessary to save the life of the mother. RULE: Women are NOT constitutionally entitled to the economic means for an abortion. While the government cannot place an undue burden on the right of a woman to choose, it does not need to remove undue burdens of the woman’s own creation (indigence). Spousal Consent Requirements: Planned Parenthood v. Danforth (1976)RULE: Government CANNOT require either spousal consent or spousal notification as a prerequisite for a married woman’s obtaining an abortion.Since the State cannot regulate or proscribe abortion during the first stage of pregnancy, when the physician and his patient make that decision, the State cannot delegate authority to any particular person, even the spouse, to prevent abortion during that same period.When a wife and husband disagree on this issue, one of their view must prevail. Since the woman is the most affected by the pregnancy, her interest outweighs the interest of the husband.Spousal Notification Requirements: Planned Parenthood v. Casey (1992)RULE: Government CANNOT require spousal notification as a prerequisite for a married woman’s obtaining an abortion. State CANNOT delegate a power to the spouse that the state cannot exercise itself.After birth, the mother’s and father’s interest in the welfare of the child are equal, however, before birth it is an inescapable fact that state regulation with respect to the child a woman is carrying will have a far greater impact on the mother’s liberty than on the father’s. Whether the prospect of notification itself deters such women from seeking abortions or whether an abusive husband does, the notice requirement will often be tantamount to the veto found unconstitutional in Danforth. Parental Notice and Consent Requirements: Bellotti v. BairdRULE: If the State decides to require a pregnant minor to obtain one or both parents; consent to an abortion, it also must provide an alternative procedure whereby authorization for the abortion can be obtained.A pregnant minor is entitled in such proceeding to show either:That she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independent of her parents’ wishes; ORThat even if she is not able to make this decision independently, the desired abortion would be in her best interests.Privacy: Contraceptive and Abortion IIGovernment regulation of abortions: undue burden test Whole Women’s Heath v. Hellerstedt, 2016 A law with the purpose of effect of placing a substantial obstacle in the path of a women seeking an abortion places an undue burden on a woman’s right to have an abortion and is thus unconstitutional When reviewing abortion related laws, must consider the burden the law imposes v. the benefit the law confers Gonzales v. Carhard, 2007 – partial birth abortion Congress may ban a specific type of partial-birth abortion provided its restrictions on the practice are narrow and clear and the ban does not constitute an undue burden on a woman’s right to an abortion.????????Protecting the dignity of human life justifies regulation of abortion Laws that place restrictions on abortion that express respect for the life of the unborn are valid, provided the laws do not unduly burden a woman's right to obtain an abortionDissent: Ginsburg – equal protection, woman’s control over her own destiny, this is right wing bullshit Government restrictions on funds and facilities for abortions Maher v. Roe, 1977: A state may constitutionally deny funding for non-therapeutic abortions for indigent women even if it fully funds childbirth.Harris v. McRae, 1980: The Hyde Amendment’s prohibitions against the use of federal Medicaid distributions to fund most abortion procedures do not violate the Constitution.Spousal consent and Notice Requirements Planned Parenthood v. Casey, 1992: A state abortion regulation places an undue burden on a woman’s right to an abortion and is invalid if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.The state cannot require a married woman to notify her spouse of her intent to obtain an abortion Spousal notification requirements in abortion laws are unconstitutional because they place an undue burden upon a woman's ability to obtain an abortion ????????Parental Notice and Consent Requirements Bellotti v. Baird, 1979: A state can require parental notice and/or parental consent for an unmarried minor’s abortion, but only if a judge can also independently approve the abortion by concluding the abortion is in the minor’s best interest or the minor is mature enough to decide for herself.????????Three reasons that justify applying different constitutional rights to children than adults are: (1) the peculiar vulnerability of children, (2) children's inability to make critical decisions in an informed and mature manner, and (3) the importance of the parental role in child-rearing. Such a proceeding must demonstrate either (1) the minor is mature and sufficiently informed to make her abortion decision independent of her parents’ wishes or (2) even if the minor is unable to make the decision independently, the desired abortion is in the minor’s best interests. Privacy: Medical Care Decisions Sexual OrientationConstitutional protection for medical care decisions Right to refuse treatment Jacobson v. Mass: Compelling state interest in stopping the spread of communicable diseases Washington v. Harper: Prisoners cannot take antipsychotic drugs if they want Cruzan v. Director, Missouri Department of Health, 1990 (parents of daughter who was a vegetable, wanted to have her life terminated) The constitution grants competent persons the right to accept or refuse lifesaving medical treatment When a guardian seeks to discontinue lifesaving nutrition or hydration or other lifesaving medical treatment for an incompetent person, the state may require that the guardian show by clear and convincing evidence that the person would have wanted such a termination of her life A state may require that a guardian seeking to remove life-prolonging treatment prove by clear and convincing evidence that the person in the persistent vegetative state would have wanted the treatment withdrawn under such circumstances.Have to ask: What are her preferences? Are the preferences expressed? – need clear and convincing evidence that this was what she wanted Does she have a constitutional right to those preferences? a court must balance the liberty interests of the incompetent individual against the state’s interest in preserving life.Right to physician-assisted death Are the cases a challenge on ‘its face” or “as applied” Washington v. Glucksberg, 1997 (doctors challenging constitutionality of a Washington ban on physician assisted suicide) There is no fundamental right to commit suicide 14A does not create a constitutionally protected right to participate in physician-assisted suicide; nor does it prohibit states from making it a crime to assist another person in committing suicide There is a two-step analysis for determining whether a fundamental right exists under the Due Process Clause: (1) whether the right is objectively, deeply rooted in U.S. history and tradition and implicit in the concept of ordered liberty such that neither liberty nor justice would exist if the right is sacrificed; and (2) whether a careful description exists of the fundamental liberty interest. Constitutional Protection for Sexual Orientation and Sexual Activity Bowers v. Hardwick: the right to privacy does not protect a right to engage in private consensual homosexual activity Laurence v. Texas, 2003 Overrules Bowers: Sidesteps fundamental right talk and moves to liberty The regulation of sexual expression violates the fundamental right of privacy The Due Process Clause of the Fourteenth Amendment includes a right to liberty in individual decisions concerning the intimacies of their physical relationship.Level of scrutiny: rational basis Saying the law is now okay Used precedent of liberty in reasoning, looks to history (aimed at same sex sodomy is not deeply rooted in our history - laws barely enforced -- previous laws against everyone, not just same-sex--> this was not just criminalizing sodomy, but only between 2 men) The Right to Travel and Voting RightsConstitutional Protection for Travel Saenz v. Roe, 1999 The Privileges and Immunities Clause protects the right to travel by allowing citizens to move freely between states, securing the right to equal treatment in all states when visiting, and securing the rights of new citizens to be treated the same as long-term citizens living within the state.?The Privileges and Immunities Clause protects the right to travel in three ways: allowing citizens to move freely between states; securing the right to equal treatment in all states when visiting; and securing the rights of new citizens to be treated the same as long-term citizens living within the state. Newly arrived citizen has the same rights as the old Shapiro v. Thompson, 1969: laws imposing 1y residency for welfare are unconstitutional – laws affecting fundamental rights must be narrowly tailored to achieve a compelling government interest ?????Dunn v. Blumstein, 1972: law that to vote, had to be there for 1y. Impinges on the right to travel, had some valid interests of keeping records in line The Right to Vote Don’t really have a fundamental right to vote: 15A -- cannot discriminate the right to vote on the basis of race, color, previous condition of servitude 19A - women right to vote 23A - extends right to vote to citizens of DC - positive award 24A - right to not have poll tax 26A - 18+ yo Art I §2 - ??Harper v. Virginia State Board of Election, 1966 State poll taxes are unconstitutional Rational basis review Property ownership requirements Kramer v. Union Free School District, 1969 A state statute that denies the right to vote in school-district elections to some district residents who are otherwise qualified to vote by age and citizenship violates the Equal Protection Clause of the Fourteenth Amendment unless the exclusion of these residents is necessary to further compelling state interests.Owning land or having children enrolled in public school cannot be made a prerequisite to voting in school district elections????????Laws which limit the ability of certain persons to vote in various governmental elections are unconstitutional unless they are narrowly to achieve a compelling state interest Literacy Tests: constitutional, BUT outlawed by federal statutePrisoners and convicted criminal’s right to vote Requirement for photo ID for voting Crawford v. Marion Country Election Board, 2008 A state statute requiring photo identification as a prerequisite for voting is not unconstitutional.Requiring photo ID does not interfere with the right to vote ????????Evenhanded restrictions on the right to vote are related to voter qualifications and that protect the integrity and reliability of the electoral process are valid Majority: hard judgment Scalia Concurrence: Hands off unless proven intentional discrimination, poor people are not a suspect classification, worry of federalism and this being a state issue Scouter Dissent: state interest was weak, deep harm to poor voters Facial or as applied challengeFacial: Affects analysis --> because facial challenge, P has a heavy burden of persuasion Courts being asked to balance interest of small number of voters against broad state interest Reynolds v. Sims, 1964 The Equal Protection Clause requires the seats in a bicameral state legislature to be apportioned on a population basis that equally weights one vote for every one person residing in a state legislative district.Full and effective participation in state government requires that each citizen have an equally effective voice in the election of the state legislature A constitutional challenge was levied against Alabama’s legislative districting scheme on the ground that it violated equal protection by not apportioning its districts according to population and thereby resulted in less-populated districts having more representation in the state legislature than more populous districts.The equal protection clause requires that all voters be awarded the opportunity for equal protection in the election of state legislatures Establishes one person - one vote Evenwell v. Abbot: States may draw legislative districted based on total population Access to the Courts/EducationConstitutional protection for access to courts Fundamental constitutional right Being able to be heard in court is an essential element of due process Not a completely endless right – still have filing fees/funding/counsel Boddie v. Connecticut: 1971The due process clause of the 14A prohibits a state from denying, solely on the basis of inability to pay, access to its courts to indigent individuals who seek in good faith judicial dissolution of their marriages Due process clause requires that all persons be afforded an opportunity to go to court to obtain a divorceUS v. Kras, 1973: A fee filing requirement does not deny an indigent person equal protection of the laws as there is no constitutional right to obtain a discharge of one’s bankruptcy, and does not violate the Due Process Clause as the right to a bankruptcy discharge is not fundamental.The government can constitutionally make the payment of a fee a prerequisite to initiating bankruptcy proceedings The principle set forth in Boddie that the government may not make the payment of a court fee a prerequisite to accessing the courts for the purpose of obtaining a divorce does not apply in cases involving the payment of fees as a prerequisite to initiating no-asset bankruptcy proceedings.????????Prisoner’s rights of access to the courts General idea: cannot obstruct a prisoner’s right to court Johnson v. Avery: cannot stop an inmate from helping another inmate to get ready for court Bounds v. Smith: strict scrutiny – fundamental right of access to the courts Inmates gets law library to assist them in filing papersLewis v. CaseyA state prison’s denial of law libraries and legal assistance programs to inmates does not violate those inmates’ constitutional right of access to courts.A prisoner cannot pursue a claim of denial of access to the courts unless he has suffered an actual injury A subpar prison library or legal assistance program does not per se place an unconstitutional limitation on a prisoner's right of access to the courts ????????Rational basis Constitutional Protection for a right to education The right to obtain education is not a fundamental right San Antonio Independent School District v. Rodriguez, 1973 Education is not recognized as a fundamental right under the Fourteenth Amendment to the Constitution, and thus a state regulation impacting the right to education should be analyzed under rational basis review to determine if it bears a rational relationship to a legitimate state purpose.The right to acquire a public education is not a constitutionally guaranteed fundamental right; therefore, laws affecting that right are subject only to rational basis scrutiny Poverty is not a suspect classification Rational basis review Dissent: the right to education is linked to the right to participate in the electoral process and to the rights of free speech and association guaranteed by the 1A Plyer v. Doe, 1982: states may not deny free public education to children not legally admitted in the US – worry of creating an underclass Education is essential for exercise of constritutional rights – still not a fundamental right though When is due process required?Procedural due process: How to protect fundamental rights If you have some sort of fundamental right/property interest, then what procedures are you entitled to before they are taken away from subsequent due action 14A due process: life, liberty, property cannot be taken without due process Depravation Daniels v. Williams, 1986: a showing of mere government negligence is not sufficient to state a claim for deprivation by the government of an individual’s liberty interest under the due process clause due process clause protects fairness in governmental decision-making, not negligence which results in deprivation of citizens’ life, liberty, or property 14A is not a front for tort law County of Sacramento v. Lewis, 1998: A specific action by a state official violates substantive due process under the Fourteenth Amendment when it is deliberate and thus constitutes “arbitrary conduct shocking to the conscience” and violates the “decencies of civilized conduct.”The principle of due process exists to protect against arbitrary government action, but not reckless In emergency situations involving law enforcement officials, negligence and recklessness will not create a constitutional deprivation; only conduct that "shocks the conscience" can create a due process deprivation, and to reach that level, there must be evidence of intent to harm ????????DeShaney v. Winnebago County Department of Social Services: Under substantive due process principles, there is no affirmative duty of the state to act to protect individuals from deprivations of their life, liberty, or property by other citizens, unless those citizens are prisoners held in custody against their will by the state.The due process clause does not guarantee that citizens will be provided with certain minimal levels of safety and security The due process clause protects against deprivations of life, liberty, and property by arbitrary government action; nowhere does the language of the clause require the state to protect the life, liberty, and property of its citizen against invasions by private actors idea that state should have protected the kid from his father, state law should have protected him, especially since the state give the father custody – the kid didn’t put himself in that position, the state did state has no special duty towards anyone unless they are in state custody, then the state has to provide (constitutionally anyways) What process is due?Is it a deprivation of “life, liberty, or property”? The rights-privileges distinction and its demise Goldberg v. Kelly, 1970: due process requires that an evidentiary hearing be held before the government can terminate a person’s welfare benefits can assert a property interest in governmental hand outs When a state seeks to terminate welfare benefits, procedural due process requires the state to provide the recipient with a pre-termination evidentiary hearing for the purpose of determining the validity of discontinuing public assistance in order to protect the recipient against an erroneous termination of his benefits.The extent to which procedural due process must be afforded in a particular situation is influenced by the extent of the loss suffered, and depends on whether the aggrieved party’s interest in avoiding that loss outweighs the governmental interest in summary adjudicationWeigh’s the persons interest against the government’s interest What is a deprivation of property? Board of regents of state colleges v. Roth, 1972 Procedural-due-process protections apply to a person's property interest in a benefit if the person has a legitimate claim of entitlement to the benefit and not merely an abstract need or desire for the benefit.????????Property interests are not created by the constitution but by independent sources such as state law A person is not deprived of liberty or property in violation of 14A when he is not hired or rehired for a government job but remains free to seek other employment Ask: did that person specifically suffer grievance loss? Perry v. Sinderman, 1972: made it clear that it was defining property based on a reasonable expectation to continued receipt of a benefit Bishop v. Wood, 1976: a property interest in employment can be created by ordinance, or by an implied contract – either way, the sufficiency of the claim of entitlement must be decided by reference to state law – have to examine each statute/ordinance in question Cleveland v. Loudermill: State cannot define what process is due, that’s defined by the federal constitution due process clause of the 14A requires that a limited pre-termination hearing before the discharge of an employee who has a constitutionally protected property interest in his employment, followed by a more elaborate post-termination hearing to challenge the discharge What is a deprivation of liberty – reputation as a liberty interest Goss v. Lopez, 1975: The Due Process Clause of the Fourteenth Amendment requires a student facing suspensions of ten days or less to be provided oral or written notices of the charges against him, an explanation of the evidence against him, and an opportunity to rebut the accusations.????????A student's legitimate entitlement to a public education is a property interest protected by the due process clause Having chosen to extend the right to an education to certain persons, a state cannot withdraw that right from a single person on grounds of misconduct absent fundamentally fair procedures to determine whether the misconduct has occurred Stigma Paul v. Davis, 1976: A person’s reputation, on its own, is not a liberty or property interest sufficient to invoke the due process protections of the Fourteenth Amendment.????????Reputation is not a liberty or property interest for the purposes of the 14A The Fourteenth Amendment’s guarantee against deprivations of liberty or property without due process does not apply to governmental actions which have the effect of harming a persons’ reputation.Reputation is not constitutionally protected unless state law says or stigma plus Stigma plus (notes from admin) Don’t need to meet the stigma plus standard to get a liberty interest Sometimes, liberty interest threatened by a stigma, if you are saying that you're liberty interest is being compromised because of a stigma that the government agency is putting on you, have to show that the stigma is enough AND (the plus) that they are not just stigmatizing you, they are doing it in the context of doing something official/taking some official action against you (i.e. expelling you from law school) Stigma plus test is only for stigma issues, not all liberty interests See class summary for examples Just ruining reputation is not enough, have to also have official action Don’t let the merits determination cloud judgement of if a property/liberty interest is at stake Liberty interest for prisoners Sandin v. Connor, 1995: a prison disciplinary procedure that does not impose an atypical and significant hardship in relation to the ordinary incidents of prison life does not violate an inmates due process rights – atypical, being treated different than other prisoners What procedures are required Mathews v. Eldridge, 1976 The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful way Whether an administrative procedure meets the constitutional guarantees of the Due Process Clause requires a consideration of three factors: (1) the private interest at stake in the administrative action; (2) the risk of an erroneous deprivation of this interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail.????????When does the constitution require the agency to give you a certain process? PED x PI > B If PED times PI is greater than B, entitled to the process PED - probability of erroneous deprivation Probability that the PI will be erroneously deprived if we don’t use the procedure that the plaintiff is arguing he is constitutionally entitled to through due process How much without the procedure would it get wrong? Discounting according to the probability, what are the chances it will go super bad PI - private interest (what is at stake - liberty or property interest) Magnitude of private interest in the entire class of these cases Not deciding whether this one person is entitled to a pre-termination hearing, but the entire class B - burden on the government of the procedure Does it save more than it costs? Judges have massive discretion under this test Due process is not a one-size fits all matter Family Rights Lassiter v. Department of Social Services, 1981: the due process clause of the 14A does not mandate that indigent parties be assigned counsel in parental rights proceedingsIdea that for any individual case, look at how strong that persons interest is in in retaining their custody – apply the balancing test Dissent: the balancing test applies to property interests, not liberty interests Substantive and procedural due process: the relationship District Attorney’s office for the third judicial district v. Osborne, 2009 The Due Process Clause of the Fourteenth Amendment does not provide a constitutional right to postconviction DNA testing.????????DNA testing is not constitutionally mandated When a state chooses to offer help to those seeking relief from convictions, due process does not dictate the exact form such assistance must assume the state court of appeals has used a three-part test for a defendant seeking postconviction DNA testing. A defendant must show that (1) the conviction relied heavily on eyewitness-identification evidence, (2) there was real doubt regarding the identification of the defendant, and (3) the DNA testing available likely would be conclusive. State wants finality of convictionsEqual protection methodology; rational basis reviewLevels of Scrutiny Under the Three-Tiered Approach to Equal Protection Analysis1. STRICT SCRUTINY (The government must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest.):A. Suspect Classifications:1. Race2. National Origin3. Religion (either under EP or Establishment Clause analysis)4. Alienage (unless the classification falls within a recognized "political community" exception, in which case only rational basis scrutiny will be applied).B. Classifications Burdening Fundamental Rights1. Denial or Dilution of the Vote2. Interstate Migration3. Access to the Courts4. Other Rights Recognized as Fundamental2.? MIDDLE-TIER SCRUTINY (The government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest.):Quasi-Suspect Classifications:1. Gender2. Illegitimacy3.? MINIMUM (OR RATIONAL BASIS) SCRUTINY (The govenment need only show that the challenged classification is rationally related to serving a legitimate state interest.)Minimum scrutiny applies to all classifications other than those listed above, although some Supreme Court cases suggest a slightly closer scrutiny ("a second-order rational basis test") involving some weighing of the state's interest may be applied in cases, for example, involving classifications that disadvantage mentally retarded people, homosexuals, or innocent children of illegal aliens.Three big questions in the framework (on the exam, go through those three questions) Question 1: what is the classification If classification exists on the face of the law, go to 2. A discriminatory IMPACT is not discriminatory on its faceIf the law is facially neutral, level of scrutiny is rational basis, go to step 3. Unless discriminatory purpose is shown, go to step 2. Question 2: what is the appropriate level of scrutiny? Strict Scrutiny (Heightened Scrutiny) Suspect Class: Race, National Origin/ Alienage, Immutable (something they cant change) Characteristics, History of MistreatmentFundamental Right: Right to Vote, Bill of Rights, ernment has burden to show that means are: Narrowly tailored (necessary) to a compelling government interest. If there are less restrictive ways, law will be struck downPresumed unconstitutional.Intermediate Scrutiny Gender, Non-marital Children Government has burden to show that means: Substantially advances an important government interest.Presumed unconstitutionalNon-Married Children Laws that provide a benefit to all marital children but NO non-marital children ALWAYS are declared unconstitutional.Laws that provide a benefit to some non-marital children, while denying benefits to non-marital children are evaluated on a case-by-case basis and are under intermediate scrutinyRational Basis (default standard)Everything elseChallenger has burden to show that means are NOT: Rationally related to a legitimate government interest. (Must show that the law is arbitrary and unreasonable). Presumed constitutional Age, disability, wealth, sexual orientationUS RR v. Fritz, FCC v. Beach Communications – must only be a conceivable purpose, not requiring an actual purposeQuestion 3: does the government action meet the level of scrutiny? Whether the “means to an end are satisfied” Government must be using the least restrictive alternativeCourt focuses on the degree to which a law is under-inclusive or over-inclusive.A law is under inclusive if it does not apply to individuals whom are similar to those to whom the law applies. (For example, a lot of it excludes kids under 16 from having a license is over inclusive, because some younger drivers do not have the physical ability to be effective drivers.)A law is over inclusive if it applies to those who need to not be included in order for the government to achieve its purpose. (The law unnecessarily applies to a group of people; For example, the government’s decision to evacuate and intern on Japanese-Americans during World War II was over inclusive.)A lot can be both under and over inclusive. The fact that our law is such, does not mean that it is sure to be invalidated. Most laws are both.Allowed to be MORE underinclusive and/or overinclusive under rational basis; LESS underinclusive and/or overinclusive under strict scrutiny. The protection of fundamental rights under equal protection Rational basis test: in analysis, often must do due process analysis to see if it’s a fundamental right Romer v. Evans, 1996: Rational Basis “with bite” A law prohibiting anti-discrimination protections for the gay, lesbian, and bisexual community violates the Equal Protection Clause of the Fourteenth Amendment.????????Scotus invalidates a state law as irrational legislation pursuant to the 14A guarantee of equal protection A law declaring that it shall be more difficult for one group of citizens than for all others to seek aid from the government is, in the most literal sense, a denial of equal protection of the laws. A law prohibiting anti-discrimination protections for the gay, lesbian, and bisexual community violate the equal protection clause of the 14A If a law neither burdens a fundamental right nor targets a suspect class, the law will pass constitutional muster under the Fourteenth Amendment so long as it is rationally related to a legitimate state purpose.Must it be the actual purpose or is a conceivable purpose enough? Railroad requirement board v. Fritz: under rational basis review, congress’s actual purpose behind a law is irrelevant and the law must be upheld as not violating the 5A if any statement of facts may reasonably be conceived to justify its discrimination Federal communications commission v Beach Communications: Economic regulation that affords differential treatment to different classes of regulated entities, and does not implicate a suspect classification or infringe fundamental constitutional rights, will not be invalidated as unconstitutional when there is any conceivable rational basis justifying the distinction between classes.When its rational basis with bite, cannot be a bad purpose - otherwise can use any conceivable purpose for why it makes sense Requirement for a reasonable relationship – tolerance for under inclusiveness under rational basis review Railway express agency, Inc. v. New York, 1949 A state law that is substantially underinclusive does not necessarily violate the Equal Protection Clause because a state may rationally decide to address a public problem in phases.????????Under rational basis scrutiny, legislation will not be held unconstitutional merely because its underinclusive Where the government chooses to regulate a particular activity, the regulation will not be held invalid simply because it is not applicable to every form of that activity The requirement of equal prot4ection does not require that all evils be eradicated at once -- one step at a timeThe government is entitled to move slowly to a problem, don’t have to treat everyone to that problem in the same way When strictly scrutinizing legislation challenged on equal protection grounds, courts often strike down legislation that is underinclusive—legislation that does not apply to every person engaged in the activity sought to be regulated. However, as the court makes clear in Railway Express, under inclusiveness is not fatal under the rational basis test. Thus, the fact that the state chose to reduce a perceived danger by regulating only a few of those who were purportedly responsible for the danger—in this case, delivery trucks advertising other businesses—did not alone make the regulation violative of equal protection.Under-inclusiveness: the failure of some regulation to apply to all persons engaged in the activity which the government seeks to regulate Tolerance for over inclusiveness under rational basis review New York Transit Authority v. Beazer, 1979 A state regulation that is over-inclusive because it regulates a general class of persons based on the conduct of particular members within that class does not violate the Equal Protection Clause of the Constitution if it is rationally related to a legitimate state purposeRational basis review will tolerate over-inclusive legislation An exclusionary scheme which is not directed against any individual or category of person, but rather represents a policy choice made by government, is not unconstitutional so long as it does not circumscribe a class of persons characterized by some unpopular trait of affiliation Cases in which laws are deemed arbitrary and unreasonable US department of Agriculture v. Moreno, 1973 A state regulation that arbitrarily creates two classes of persons and deprives one class of government benefits violates the Equal Protection Clause and Due Process Clause of the Fifth Amendment because it is based on a mere legislative preference for one class that is not rationally related to a legitimate state purpose.????????Classification may be so irrational as to fail rational basis scrutiny Even under rational basis scrutiny, a challenged classification must rationally further some legitimate governmental purpose City of Cleburne, Texas v. Cleburn Living Center, Inc. 1985 The mentally disabled are not a quasi-suspect class and thus any legislative regulations affecting their rights are subject to rational basis review and not intermediate scrutiny.Unsubstantiated fears or negative attitudes aimed at some groups are not permissible bases for classifying members of that group separate from the general population Because legislative or regulatory classifications based on mental retardation are neither suspect nor quasi-suspect, their validity should be determined pursuant to a rational basis review The mentally disabled are not a quasi-suspect class, and thus rational basis review of the City’s decision is appropriate. Firstly, it is undeniable that mentally disabled persons require special care for functioning in the everyday world, so legislative judgments are likely to be rational and should not be scrutinized more closely. Secondly, on a national scale, federal lawmakers have shown great appreciation for the plight of the mentally disabled and enacted significant legislation prohibiting discrimination against them. Applying heightened scrutiny and requiring the legislature to show that these efforts are substantially related to an important governmental purpose might actually discourage the legislature from continuing to act to protect the mentally disabled. Thirdly, the existence of so many regulations make it clear that the mentally disabled are not politically powerless, but have already been able to attract the attention of lawmakers to provide for their rights. Fourthly, finding the mentally disabled a quasi-suspect class would pose problems in the future for classifying other groups as such that possibly share some but not all characteristics with mentally disabled persons as a group.Is there a history of discrimination against this group AND does the group have political power (power to protect themselves) Race and the ConstitutionInitial attack on separate but equal Missouri ex rel Gaines v. Canada, 1938: paid tuition to go to school out of state, cannot outsource obligation to educate Sweatt v. Painter, 1950, creating shitty law school does not count as equal McLaurin v Ok State Regents, 1950, segregated areas within one school are not okay, hinders student ability to study Brown v. Board of Education, 1954 Separate but equal as unconstitutional – states may not segregate public schools on the basis of race Looked at the affect segregation had on education and student lives Racial classifications are not allowed unless they meet strict scrutiny Johnson v. California Strict scrutiny is the appropriate standard of review in equal protection challenge to policies involving racial classification in state prisons Racial classifications are forbidden unless they can meet strict scrutiny State must prove a compelling interest Facially neutral laws with a discriminatory impact or with discriminatory administration The requirement for proof of a discriminatory purpose Scotus held that there must be proof of discriminatory purpose for such laws to be treated as racial or national origin classifications Washington v. Davis, 1976A state-sponsored racial classification violates the equal protection provisions in the Fifth Amendment’s Due Process Clause only if it is shown to have both a disproportionate impact on a particular race and is motivated by invidious racial discrimination.????????Scotus requires proof of discriminatory intent before a law which is racially neutral on its face will be deemed a suspect classification A facially neutral law or official act will be declared unconstitutional only if there is proof that the law or act has a discriminatory purpose Black men applied to be cops in DCHave to ask what their intent is – was there an intent to discriminate against the group? if no racial classification, rational basis review McCleskey v. Kemp, 1987 A criminal defendant alleging an equal protection violation must prove the existence of a discriminatory purpose and a racially disproportionate and discriminatory effect.????????Scotus rejects an equal protection challenge to the administration of the death penalty based solely on statistical evidence of a disparate treatment between black and white defendants Statistical evidence indicating a risk that race plays a role in capital sentencing determinations does not alone prove a violation of equal protection Statistical data to show that black men get the death penalty more than white D who alleges an equal protection violation has the burden of proving the existence of purposeful discriminationD who alleges an equal protection violation has the burden of proving the existence of purposeful discrimination Criminal defendant must prove that the purposeful discrimination had a discriminatory effect on him You can enact a statute in spite of its predictable discriminatory effect, and it will not mean that you have an intent or purpose for it to have that discriminatory effect.Can’t infer a negative discriminatory effect.“Discriminatory purpose implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular court od action as least in part because of, not merely in spite of its adverse effects upon an identifiable group.”City of mobile v. Bolden, 1980 Laws governing a city’s electoral process that are facially neutral and enacted without discriminatory intent do not violate the Fourteenth or Fifteenth Amendments to the Constitution even if those laws dilute the voting strength of African Americans in practical effect.??????The Fifteenth Amendment does not entail the right to have black candidates elected but prohibits only purposefully discriminatory denial or abridgment by government of the freedom to vote “on account of race, color, or previous condition of servitude.”??The fact that no black people had ever been elected to commission was not enough to prove intent that the structure of the election process was intentionally discriminatory.Is proof of a discriminatory effect also required? Palmer v. Thompson, 1971: A state regulation based on racial classifications is unconstitutional under the Equal Protection Clause if the plaintiff proves both a discriminatory purpose and a discriminatory impact of the regulation.?????A legislative act does not violate equal protection merely because it was motivated by a discriminatory purpose??? discriminatory motive alone, without an effect, is not state action and does not violate equal protection How is a discriminatory purpose proven?Personnel Administrator of Mass v. Feeney, 1979: To prove that a state actor violates the Equal Protection Clause by enacting legislation with a discriminatory purpose, a plaintiff must show that the decisionmaker selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group.????????Giving preference to veterans for state employment“discriminatory purpose” implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action as least in part “because of,” not merely “in spite of,” its adverse effects upon an identifiable group.Village of Arlington Heights v. Metropolitan Housing Development Corp. 1977: A state-sponsored racial classification will not be held to violate the Equal Protection Clause of the Fourteenth Amendment unless a plaintiff shows that the law is motivated by a discriminatory purpose and has a discriminatory impact.In determining the existence of a discriminatory purpose, several factors must be considered: (1) the historical background predating the decision; (2) the specific sequence of events leading up to the challenged classification;(3) departures by the state actor from normal procedures; (4) substantive departures, particularly if the factors usually considered important by the decisionmaker strongly point to a decision contrary to the one reached; and (5) the legislative or administrative history surrounding the adoption of the legislative classification. Racial Classifications Benefitting MinoritiesRacial Classifications Benefiting Minorities -- affirmative action Three questions to consider when dealing with affirmative action: What level of scrutiny should be used to racial classifications benefiting minorities? What purposes for affirmative action programs are sufficient to meet the level of scrutiny? What techniques of affirmative action are sufficient to meet the level of scrutiny? University of Ca. v. Bakke: Colleges may use race as one factor in admission decisions to benefit minorities and enhance diversity Determining the level of scrutiny: Immutable characteristics (race) The ability of the group to protect itself through the political process History of discrimination against the group Richmond v. JA Cronson Co. Affirmative action plans are subject to strict scrutiny A city may use its spending powers to remedy private discrimination if it identifies that discrimination with the particularity required by the Fourteenth Amendment.A city may use its spending powers to remedy private discrimination if it identifies that discrimination with the particularity required by the Fourteenth Amendmentif local governments wish to remedy discrimination with the use of affirmative action plans they must prove that such plans are necessary and that they are addressing actual past discrimination.Constitution requires proof of discrimination Have to prove wrongful intent Grutter v. Bollinger Educational diversity is a compelling state interest Racial classifications must be narrowly tailored to achieving a compelling state interest Student body diversity To be narrowly tailored to its compelling interest, a law school may not use an applicant’s race to meet a predetermined quota, but may use race as a “plus” when admitting an otherwise eligible applicantRacial classifications must be narrowly tailored to achieve a compelling state interest some use of race consciousness if okay, but it has to be narrowly tailored, should not be deference to the university (cannot be a quota, shouldn’t put a group by race into that category that avoids competition with other categories) COMPELLING-STATE-INTEREST TEST: A method for determining the constitutional validity of a law, whereby the government’s interest in the law is balanced against the individual’s constitutional right to be free of the law. Only if the government’s interest is strong enough will the law be upheld. The compelling-state-interest test is used most commonly in equal-protection analysis when the disputed law requires strict scrutiny. STRICT SCRUTINY: The standard applied to suspect classification (such as race) in equal-protection analysis and to fundamental rights (such as voting rights) in due-process analysis. Under strict scrutiny, the state must establish that it has a compelling state interest that justifies and necessitates the law in questionGratz c. Bollinger Point system emphasizing minority status violates equal protection University admissions policies must take race into account, if at all, only on a case-by-case, individualized basis Fisher v. University of Texas at Austin Race may be considered as one factor in university admissions, as a way to increase student body diversity Satisfying the burden of proof under a strict scrutiny standard requires continuing reassessment, and that reassessment is undertaken in light of the experience and data generated since the adoption of the plan that uses race as a factor.Satisfying the burden of proof under a strict scrutiny standard requires continuing reassessmentSatisfying the burden of proof under a strict scrutiny standard requires continuing reassessment, and that reassessment is undertaken in light of the experience and data generated since the adoption of the plan that uses race as a factor.There are three controlling principles used to assess the constitutionality of a public university’s affirmative-action program: Race may not be considered unless the admissions process can withstand strict scrutiny, meaning that the university demonstrates with clarity 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;The decision to pursue the educational benefits that flow from student body diversity is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper. Diversity cannot be defined as a fixed quota or percentage, but once a university gives “a reasoned, principled explanation” for its decision, deference must be given to the conclusion that a diverse student body would serve the university’s educational goals; and No deference is owed when determining whether the use of race is narrowly tailored to achieve the university’s permissible goals. The university bears the burden of proving a nonracial approach would not promote its interest in diversity “about as well and at tolerable administrative expense.” Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative, but the university does have the ultimate burden of demonstrating that race-neutral alternatives that are both “available” and “workable” “do not suffice.”Easley v. Cromartie: Legislative determinations are entitled to deference in district boundary challenges. When racial identification correlates highly with political affiliation, the party attacking the legislatively drawn boundaries must show that the legislature could have achieved its legitimate political objectives in alternative ways that are comparably consistent with traditional districting principles.Affirmative action What does it mean when a city has an affirmative action program and why is it constitutional Affirmative efforts to avoid discriminating - want to encourage applications from the local labor pool Non-discrimination norm allows people to make efforts to avoid discriminating Definition of not discriminating - making every effort to not discriminate Have to make good faith efforts to hire - cannot impose greater requirements than are needed for the job Have to show they have been making efforts to get people out there to applyCan pay attention to race if trying to enforce non-discrimination Gender ClassificationsClassification based on non-marital children and gender Intermediate scrutiny?→ important states interest and substantially related to that interestGovernment has burden of proofWhy intermediate scrutiny?Long history of discriminationSex is immutable characteristicGender is immediately visible characteristicWomen also tend to be significantly underrepresentedGender classifications benefitting Women based on role stereotypes generally will not be allowed, but gender classifications benefitting women designed to remedy past discrimination and differences in opportunity can be okay—very limited fact patternsReed v. Reed, 1971 Men given preference over women in inheriting property Did not pass rational basis review – administrative convenience cannot be a reason to discriminate (AKA it’s not a legitimate state interest for discrimination – definitely not compelling – rational but not legitimate) Applied rational basis Rational basis review: how to figure out a tie breaker? Rational connection to the decision you are making What could a rational legislator think?Leg might have thought that on average men had more experience/preference to let men take the lead? At that time, women barely had control over their own bank accounts, finances, and work experience Must be reasonable and not arbitrary - all persons must be treated alikeWomen are the weaker sex, so some discrimination is allowed?Gender Classification Intermediate scrutiny Long history of discrimination against women on the idea of sex Women have long been significantly under represented in political power Early cases approving gender discrimination: Bradwell v. State of IL, 1872: woman had no right to practice law Hoyt v. Florida, 1961: idea that women are the center of the home and family life Frontirero v. Richardson, 1973 Under the Due Process Clause, governmental classifications based on sex are inherently suspect and must be subjected to strict judicial scrutiny.Craig v. Boren, 1976 A governmental regulation involving gender discrimination is constitutional if it is substantially related to the achievement of an important government purpose.????????Standard of review - intermediate scrutiny Scotus holds that gender classifications are subject to intermediate scrutinyGender classifications must serve important governmental objectives and must be substantially related to achievement of those objectives An Oklahoma statute prohibited the sale of “non-intoxicating” 3.2 percent alcoholic beer to males under the age of twenty-one, but permitted the sale of such beer to females over the age of eighteen.US v. Virginia, 1996 All governmental gender classifications must be substantially related to an important government purpose that can be demonstrated by the government if it offers an exceedingly persuasive justification for the classification.Intermediate scrutiny, need the actual purposeScotus requires an exceedingly persuasive justification to support gender based classifications ????????States must proffer an exceedingly persuasive justification for gender classifications which categorically excludes women from educational opportunities Proving the existence of gender classification 2 major ways of proving: facial or neutral with discriminatory effect Gender classification can exist on the face of the law, the law in its every terms draws distinction among people based on gender If the law if facially gender neutral, proving a gender classification requires demonstrating that there is both a discriminatory impact on the law and a discriminatory purpose behind it When is it “discrimination” Geduldig v. Aiello, 1974 Discrimination based on pregnancy in a state disability insurance program is subject to rational basis review.????????A statute is not violative of equal protection merely because it fails to account for biological differences between the sexesDiscrimination on the basis of pregnancy is not itself a violation of equal protection Discrimination based on pregnancy in a state disability insurance program is subject to rational basis review. "The lack of identity between the excluded disability and gender as such under this insurance program becomes clear upon the most cursory analysis. The program divides potential recipients into two groups—pregnant women and non-pregnant persons. While the first group is exclusively female, the second includes members of both sexes. The fiscal and actuarial benefits of the program thus accrue to members of both sexes."Pregnancy Discrimination Act was enacted, which expressly prohibits discrimination on the basis of pregnancy.Gender Classification Benefiting WomenOrr v. Orr: Classifications benefiting women may not be justified on the stereotype of women being economically dependent on men Man in divorce proceeding sought to challenge upon equal protection grounds a state law which provided that men, but not women, could be required to pay alimony upon divorce A state may not enact a statute requiring only men to pay alimony upon divorce Rules were different depending on if the mother or father was a US citizen Biological difference in the sexes in connection with reproduction, Deferring to congress, congress has the control over who is a citizen of the US Mississippi University for Women v. Hogan Scotus holds unconstitutional a state statute prohibiting male enrollment in a public school for nurses Male applicant denied admission to an all-female state-sponsored nursing school sought to challenge the schools exclusion of men A state may designate an educational opportunity to members of only one-sex if the state seeks to remedy actual past discrimination related to the educational opportunity Michael M. v. Superior Court of Sonoma County; Scotus upholds a statutory rape law applicable only to men A 17-year-old male sought to challenge his conviction for the statutory rape of a 16-year-old female on the ground that the statute under which he was convicted violated equal protection because it was only applicable to men.Romeo and Juliet cases States may enact laws making it a crime for a man to have sex with an underage female in an effort to address teen pregnancy and teen sex Level of scrutiny: rational basis (with teeth) Rational basis with persuasiveness Dissent: doesn’t make sense to prosecute only one actor of co-actors in a criminal act -- two people participate, but only one gets fucked State needs to be fair to everyone, not fair to prosecute one person and not the other Rostker v. Goldberg Only men for draft registration Dissent: Congress concluded that every position in the military, no matter how far from combat needed to be filled by combat ready men Women always filled a lot of positions that were not combat positions No rational reason to think that women would not be needed to fill out positions for which there was insufficient volunteers Reason to exempt women - Combat exclusion used as a rational Motion of heightened scrutiny, but heavy deference to congress for military readiness Argument, if you go to rational basis review, nothing but sex stereotyping to say that women are not subject Califano v. Webster: gender classifications which benefit women are permissible if they remedy past discrimination An equal protection claim was brought against the federal government to challenge provisions of Social Security Act that allowed women to exclude three more lower earning years in the computation of the retirement benefits.Reduction of the disparity in economic condition between men and women caused by the long history of discrimination is a governmental interest sufficiently important to justify a gender based classification Alienage Classifications and Sexual Orientation DiscriminationDiscrimination against non-united states citizen Alienage classifications: different than national origin classifications (alien = non-US citizen) Aliens are protected by the equal protection clause – “persons” General rule: strict scrutiny to evaluate discrimination against non-citizens Exceptions Alienage classifications related to self-government and the democratic process need only meet rational basis review Use of rational basis review for federal laws that discriminate against aliens Congress has plenary power to regulate immigration and thus has been deferential to federal statutes and presidential orders that discriminate against aliens Protections for undocumented aliens under equal protection Strict Scrutiny as a General Rule Graham v. Richardson, 1971 Under the Equal Protection Clause, states may not condition receipt of welfare benefits on the beneficiary having United States citizenship or residing in the United States for a specified number of years.Scotus applies strict scrutiny to classifications based on alienage A states desire to preserve limited welfare benefits for its own citizens is inadequate to justify the exclusion of resident aliens form receiving a portion of those benefits ????????Trying to save money is not a good enough reason Sugarman v. Dougall, 1973: laws affecting a suspect classification must be narrowly tailored to achieve a compelling government interest In re Griffiths, 1973: strict scrutiny is the appropriate test against aliensAlienage classifications related to self-government and the democratic process Rational basis States may deny aliens the right to vote or hold political office or serve on juries Foley v. Connelie, 1978 A state may confine employment in its police department to United States citizens because police officers perform basic governmental functions that may be constitutionally reserved for members of the national political community.Scotus holds that the rational basis test is applicable when a state seeks to exclude aliens from the democratic process A state may, consistent with the constitution, confine participation in its police force to citizens of the US Individual states have the option to decide if they want to exclude or not ????????Ambach v. Norwick, 1979 A state may refuse to employ as elementary and secondary school teachers aliens who refuse to seek naturalization.????????Court holds that states may prevent aliens from holding teaching positions Public school teachers come within the "governmental function" exception to the rule requiring strict scrutiny for classifications based on alienage State action doctrine Does the legislature mandate? Is it constitutional? If private school, look for parental rights? Police power: Meyer v. Nebraska Congressionally approved discrimination Can discriminate as the result of a federal law Federal government's plenary power to control immigration requires judicial deference and that therefore only rational basis review is used if congress created the alienage classification or if it is the result of a presidential order Mathews v. Diaz - Federal assistance programs may use immigration status and length of residency for determining eligibility. -- Served legitimate interest of the federal government Hamptom v. Wong: A federal agency may not prohibit the employment of aliens in the federal civil service when it has not been authorized to do so by Congress or the president.Undocumented Aliens and Equal protection Plyer v. Doe, 1982: States may not deny free public education to children not legally admitted into the United States.Scotus subjects a states classification of undocumented aliens to a heightened form of the rational-basis test If a state chooses to deny the benefit of free public education to undocumented alien children it must do so in order to further some substantial state interest ????????Can’t discriminate against aliens (presumption that they are here legally) If here illegally, changes things Worry of creating an underclass of completely uneducated people with no resources to participate in our society Cannot reduce expenditures just to save money Discrimination against non-marital children Intermediate scrutiny is applied in evaluating laws that discriminate against non-marital children Clark v. Jeter, 1988 A six-year statute of limitations imposed on paternity actions filed on behalf of illegitimate children is too short to satisfy the requirements of equal protection.Expressly stated that intermediate scrutiny is used for discriminatory classifications based on illegitimacy Two major principles Laws that provide a benefit to all marital children but no non-marital children = unconstitutional Laws that provide a benefit to some nonmarital children, while denying the benefit to other nonmarital children, are evaluated on a case by case basis under intermediate review Laws denying benefits to all nonmarital children If accorded to martial children, has to be to non-marital children Cannot discriminate against the bastards Worry of fraud from bastards after the death of father Laws that provide a benefit to some non-marital children No bright line rule Intermediate scrutiny and decided case by case Other types of discrimination: only ration basis review Age classification Massachusetts Board of Retirement v. Murgia, 1976A state statute instituting mandatory retirement for police officers at age fifty is subject to rational basis review and does not violate the Equal Protection Clause of the Fourteenth Amendment.Classifications based on age need only be rationally related to a legitimate state purpose Scotus holds that rational basis review should be used to scrutinize age discrimination Discrimination based on disability: rational basis Wealth distribution: rational basis Discrimination based on sexual orientation: rational basis Why is speech constitutionally protected?Freedom of SpeechRationales for Constitutional Protection of Free SpeechWhy Should Freedom of Speech be a Fundamental Right?Self-GovernanceIf deprived of information needed to make political decisions, you are not actually self-governing.Idea that to make political decisions, have to have information Discovering TruthMarketplace of Ideas—BUT criticism that only the strong prevail in the marketplace of ideas resulting not in truth, but in the strongest idea.Counter argument: governmental control of free expression would be worse.Advancing AutonomySelf-realization through free expression.Promoting ToleranceThe more you are exposed to difference, the more you know Free Speech MethodologiesContent AnalysisDistinction Between Content-Based and Content-Neutral LawsRule for Content-Based: Content-based restrictions generally receive strict scrutiny.2 ways it can be content based: Viewpoint Need not be a specific view pointCannot speak of hatred of any specific public official (?) Subject matter based See Reed v. Town of Gilbert Rule for Content-Neutral: Content-neutral laws generally receive intermediate scrutiny.Turner Broadcasting System v. FCC?(1994): Statute required cable television providers to devote a portion of their channels exclusively to local broadcast channels. Must carry provisions required cable operators to carry the signals of specified local broadcasts.Strict judicial scrutiny will be used for governmental regulations that restrict free speech protected by the First Amendment if they regulate based on the content of speech, however, intermediate judicial scrutiny will be used if the governmental regulations are content-neutral.RULE: Principal inquiry in determining content neutrality is whether the government has adopted the regulation of speech because of agreement or disagreement with the message it conveys.As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content-based restrictions.Benign motivation or valuing certain forms of speech over others is not enough to avoid the need for strict scrutiny of content-based justifications.Content-Neutral Regulations MUST be both viewpoint-neutral and subject matter neutralBoos v. Barry?(1988): DC code prohibits displaying of any signs within 500 feet of a foreign embassy if the sign tends to bring that foreign government into “public odium” or “public disrepute.”RULE: Viewpoint neutral means that the government cannot regulate speech based on the ideology of the message.RULE: Subject matter neutral means that the government cannot regulate speech based on the topic of the speech.HELD: This is a content-based restriction because it bans the discussion of an entire topic—protest of a foreign country at its embassy.Strict Scrutiny:Compelling government interest? NO! Government said that protecting dignity of foreign officials is a compelling interest, but Court says no.Content Based RestrictionsReed v. Town of Gilbert?(2015): Town’s sign regulation distinguished between the content of the signs based on whether the sign was ideological, political, and directional. Then, the town assigned a time, place, and manner regulation based on the content of each sign.A law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content neutral justification, or lack of "animus towards the ideas contained" in the regulated speech Laws imposing different rules for signs based on content are unconstitutional RULE: Regulation of time, place, and manner of signs?based on the content of the sign?is still a content-based regulation that must satisfy strict scrutiny. -- restriction on speech that is content-based on its face is subject to strict scrutiny regardless of the government's benign motive or justification Law that is content based on its face is strict scrutiny ? Strict Scrutiny:Compelling government interest? NO! Preserving town aesthetics is too underinclusive because directional signs are no more of an eyesore than ideological or political ones.Messes up content-neutral targeting of secondary effects:First time a First Amendment regulation was struck down under strict scrutiny when the regulation was imposed for a content-neutral purpose focused on secondary effects.Alito Concurrence: (1) Rules regulation size of signs (2) Rules regulating locations of signs (3) Rules distinguishing between lit and unlit signs (4) Rules distinguishing fixed signs and electronic signs (5)Rules distinguishing between signs on public, private, residential, commercial (6) Number of signs allowed per mile on roadway (7) Rules imposing time restriction on signs advertising a one-time event.EXAM: On the exam, utilize the majority opinion to apply strict scrutiny, then move to the concurrence to establish that many sign regulations that deal with content may be able to pass strict scrutiny.The combination of the Majority and the Alito Concurrence change the dynamics of Secondary Effects:State employs a regulation that is content-based, BUT is imposed for a content-neutral reason to combat “secondary effects.” But?Reed?did not apply the secondary effects doctrine, even though the purpose of the sign regulation was to combat secondary effects.REMEMBER: The Court gets weird when sex is involved, which is why the Secondary Effects Doctrine was born out of?City of Renton?because the Court wanted the town to win against the adult theaters.IMPORTANT: So now, any sign regulation MUST pass strict scrutiny (Reed?majority) and can be wiggled into strict scrutiny through the broad dicta from Alito’s Concurrence.US v. Alvarez, 2012 Stolen valor act: Could not impersonate a someone who received military honors Strict scrutiny There is no general 1A exception for false statements Subject matter restriction i.e. cannot talk about the Vietnam war How to determine if the law is content based Requirement content neutral needs to be subject matter and view point ? Republican Party of Minnesota v. White?(2002): Minnesota Supreme Court bars any candidate for judicial office from announcing his or her views on disputed legal or political issues.RULE: Rules barring judicial candidates from speaking their views on disputed legal or political topics is an unconstitutional content-based regulation of speech.Strict Scrutiny:Impartiality as a lack of bias? NOT narrowly tailored to achieve this type of impartiality.Impartiality as lack of preconception in favor of or against a particular legal view? NOT a compelling state interest since finding an impartial judge is impossible.Impartiality as open-mindedness? NOT narrowly tailored to achieve this. Debate leads to open-mindedness, and they are not allowed to debate/make their views known.Kennedy Concurrence: All Content-based regulations are per se invalid. No strict scrutiny.O’Connor Concurrence: If you want impartial judges, get rid of elections for judges. Rejects strict scrutiny Ginsburg Dissent: Would make a First amendment exception for judges running for election—need to be impartial.?Matal v. Tam, 2017 IS A GOOD SUMMARY OF THE NEW CASE? A denial of a trademark because it was offensive is unconstitutional viewpoint discrimination of private speech (it is not government speech, which we study below).? It would be unconstitutional even if it were less protected “commercial speech.” Bedrock principle is that “the government may not prohibit expression merely because it is offensive.”The disparagement clause of the Lanham Act is unconstitutional because it violates the free speech clause of the First Amendment.General rejection of hate speech regulationCannot license one side with hate speech View point discrimination - negative speech Trademark not government speech Idea that trademarks exist without trademark enforcement - you have the right to the trademark even without registered, government just enhances the enforceability of the trademark Protective holding for businesses Concurrence: It is a fundamental principle of our Constitution that the government may not restrict or regulate speech based on disapproval of the viewpoint that speech conveys. Can say nice things about anyone, but giving offense if a view point We love Hitler v, We hate Williams-Yulee v. Florida Bar?(2015): Florida adopted Canon 7C(1) which bars state court judges running for election from soliciting donations for their campaign. Williams-Yulee signed a letter sent out in which she asks for donations to her campaign.HELD: In sum, we hold today what we assumed in?White: A state may restrict the speech of a judicial candidate only if the restriction is narrowly tailored to serve a compelling government interest.States may ban direct solicitation of campaign contributions by judicial candidates A state may restrict the speech of a judicial candidate only if the restriction is narrowly tailored to serve a compelling interest Strict Scrutiny:Compelling State interest? YES! Protecting integrity of the judiciary and maintaining the public’s confidence in an impartial judiciary.Narrowly tailored? YES!Underinclusive? NO! Solicitation ban goes after conduct most likely to erode public confidence—personal requests for money by judges. Cannon applies evenhandedly to all judges, regardless of viewpoint.Overinclusive? NO! Canon has no effect on what judges may discuss and with whom they may discuss it. They can contact potential supports and put up billboards, but can’t ask for money.Ginsburg Concurrence: Court should not use strict scrutiny—too harsh! States must have ability to regulate money in politics and strict scrutiny prevents them from doing that.Scalia and Thomas Dissent: This is content-based regulation, which gets strict scrutiny. Fails strict scrutiny because overinclusive—applies even if person is asked for financial contribution and has no chance of appearing in the judge’s court.Kennedy Dissent: Content regulation is per se invalid!Problems in Applying the Distinction between Content-based and Content-neutral laws:First, a facial content-based restriction will be deemed content-neutral if it is motivated by a permissible content-neutral purpose (secondary effects).City of Renton v. Playtime Theaters (1986): City of Renton passed an ordinance that prohibited any “adult motion picture theater” from locating within 1000 feet of a residential zone, single or multiple family dwelling, church, or park, and within one mile of any school. “Content-neutral” time, place and manner regulations are acceptable under the First Amendment so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.City was trying to regulate secondary effects of the content Content regulation: Classification of content implicated in this case: the adult movies -- placing a burden on the content involved A zoning ordinance restricting porn theaters' placement must be analyzed as a content-neutral, TIME, PLACE, AND MANNER regulation Time, place, and manner regulation: regulations which permits speech, but limits it to certain times, places, and manners Trying to regulate the "secondary effects" RULE: A facial content-based restriction will be deemed content-neutral if it is motivated by a permissible content-neutral purpose to avoid the secondary effects of the speech. HELD: Town may regulate on the basis of content, so long as the purpose for the regulation is to combat the secondary effects of the speech. Intermediate Scrutiny: Has to affect the secondary effects doctrine (?) Important Government Interest? YES! Interest in attempting to preserve the quality of urban life is a substantial government interest. Substantially related? YES! By reducing the number of theaters in residential neighborhoods, this is an attempt to preserve the quality of urban life. Brennan dissent: The zoning ordinance is a content regulation. It is thus not a neutral time, place, and manner regulation. The ordinary understanding of time place and manner regulation was something that was totally neutral When the government must make content-based choices the government must be viewpoint-neutral but otherwise can consider content Second, applying content-based/content-neutral distinction concerns in situations in which the government MUST make a content-based choice.National Endowment for the Arts v. Finley (1998): Government must decide which artists receives the National Endowment grants, forcing them to make content-based decisionsGovernment may make a content-based decision when awarding grants for artistic merit The government may fund art based on its assessment of its artistic content, as long as it does not (A) abuse its discretion by penalizing disfavored viewpoints, or (B) violate other constitutional rights In making determinations regarding recipients of government subsidies, the government may consider content but must remain viewpoint-neutral.Rule: in a situation where the government is forced to make a content-based choice, the government MUST be viewpoint neutral, but otherwise can consider content Facial challenge to strict down the rule as a whole Because it’s a facial challenge, the level of scrutiny is: She has the burden of proof Heavy burden as a facial challenge to prove that it will lead to a suppression of speechNeed to show that it would lead to a suppression of speech That the statute suppressed all of the speech of that nature, not enough that the government didn’t encourage a diversity from speakers, she would have had to show that the government is actively suppressing all types of speech of that nature Showing that they were subsidizing a specific speech, which suppressed alternative speech Have to show that the government is functioning as a content regulator that is suppressing a lot of speech Having to choose between artists is not the same as speech regulation View point discrimination? Is there elements that it is working to suppress speech Third, the First Amendment does not apply at all if the government is the speaker or even adopts private speech as its own (Government Speech Doctrine)Pleasant Grove City, Utah v. Summum (2009): Summum religion challenged the presence of a Ten Commandments statue present in a public park after its own proposal for a statue was denied. Summum claimed that the government was discriminating on the basis of content.Speakers move on, whereas statues do not, so different public-forum free-speech rules apply Permanent monuments are considered government speechGovernment speech: the doctrine that, although the 1A's free speech clause limits government regulation of private speech, it does not restrict the government when the government speaks for itself. RULE: The First Amendment does NOT apply at all if the government is the speaker or even adopts the private speech as its own. The First Amendment restricts government regulation of private speech, but it does not regulate government speech. Walker v. Thompson (2015): Challenge by the Sons of Confederate Veterans when their “vanity” license plate proposal was denied by the state of Texas.RULE: Specialty license plates convey government speech and, thus, the First Amendment does not apply.License plates are government speech License plate designs constitute government speech, and the 1A for a license plate that featured a confederate battle flag was in violation of the 1A If the design was offense its cutRefuses to hold “that the gov’t unconstitutionally discriminates on the basis of viewpoint when it chooses to fund a program dedicated to advance certain permissible goals, because the program in advancing those goals necessarily discourages alternative goals.”Government speech doctrine Why government speech?Long history of government communicating messages through license platesAs government IDs, people can reasonably interpret the design to represent the view of the government. State government maintains direct control over the messages conveyed on the license plates. Dissent (Alito, Roberts, Scalia, Kennedy): The Court has deemed private speech to be government speech, thus, stripping it of all First Amendment protection.This is pure viewpoint discrimination: gives the government ability to allow certain messages, but discriminate against offensive viewpoints. Overbreadth and Vagueness AnalysisVaguenessRULE: A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is permitted.Court has struck down statutes for being vague when they are so ambiguous that the reasonable person cannot tell what expression is forbidden and what is allowed.Vagueness doctrine is about fairness: it is unjust to punish a person without providing a clear notice as to what conduct is prohibited. There is also a risk of selective prosecution. THESE ARE DUE PROCESS CONCERNS.In the First Amendment context, the Court is also worried vague statutes will chill protected speech. Coates v. City of Cincinnati (1971).An ordinance that prohibits more than three persons from assembling and engaging in annoying conduct on public property is unconstitutionally vague and impermissibly infringes upon the constitutional right to free assembly.Baggett v. Bullitt (1964).OverbreadthRULE: A law is unconstitutionally overbroad when it regulates substantially more speech than the Constitution allows to be regulated. Overbreadth doesn’t deal as much in the instance of commercial speech Needs to be substantially overbroad Usually try to look law narrowly to uphold the law not overbroad CRITICAL POINT TO KNOW: A person to whom the law constitutionally can be applied can argue that it would be unconstitutional as applied to others. NOTE ALSO THAT THIS BYPASSES THE USUAL RULES ON STANDING. COMMERICAL SPEECH DOESN’T NEED THE STRONG MEDICINE OF OTHER SPEECH. Schad v. Borough of Mount Ephraim (1981): Ordinance banned all live entertainment, which encompassed obscene activities as well as expression protected by the First Amendment (live plays, concerts, etc.). A law is impermissibly overbroad if a less restrictive intrusion on protected speech is available.P was a business owner who owned a store that had coin operated devices and nude dancer behind a glass panel Could have written the law much more narrowly -- "all live entertainment" - too broad RULE: When making a claim that a regulation is overbroad, appellants are entitled to rely on the impact of the ordinance on the expressive activities of others, as well as their own. An individual whose speech is NOT protected by the First Amendment and who could constitutionally be punished under a more narrow statute may argue that the law is unconstitutional because of how it might be applied to third parties that are not before the court. Commercial speech - intermediate review Given how strong the medicine of overbreadth doctrine is, what disciplines it? See Broadrick v. Oklahoma. Has to be substantially overbroad A party whose alleged conduct falls within a statute's legitimate bounds cannot challenge the statute on the grounds that it might be unconstitutionally overbroad if applied to other persons or circumstances not before the court.See also City Council v. Taxpayers for Vincent (1984). Under the First Amendment, the government may constitutionally limit the posting of signs on public property when doing so is necessary to further a legitimate state interest, narrowly tailored to furthering that interest, and viewpoint neutral.City of Houston v. Hill (1987). An ordinance that criminalizes constitutionally protected speech and vests excessive enforcement discretion with law enforcement officers is unconstitutionally overbroad.Overbroad New York v. Ferber (1982). A state may prohibit the exhibition, sale, or distribution of child pornography even if that material does not meet the articulated test for obscenity.There are also cases that narrowly construe a law to avoid the overbreadth doctrine. See Osborne v. Ohio (1990). Was trying to aim at the type of nudity that can be prohibited Gooding v. Wilson (1972) takes the opposite approach.While the First Amendment does generally not protect “fighting words”, a state statute prohibiting them may still be unconstitutional if it is over-inclusive.?Packingham v. North Carolina (2017). This recent cases use overbreadth as the basis for the result but also is the occasion for some theorizing by Justice Kennedy about protecting the internet as a medium for speech. The casebook author has chosen to limit the presentation in the book to the overbreadth analysis and note the concern of other justices that he had engaged in “loose rhetoric” and “undisciplined dicta.” Website definition was too broad - could really include anything ?Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc. (1987). An express prohibition against all First Amendment speech that is not subject to a limiting construction is facially unconstitutional as overbroad.Prior RestraintsPrior Restraint: An administrative system or judicial order issued in advance of the time that the communication is to occur and that prevents the communication from occurringStops speech before it happens Collateral Bar Rule: A person violating an unconstitutional law may not be punished, but a person violating an unconstitutional court order generally may be punished (Walker v. City of Birmingham – an injunction issuing out of a court of general jurisdiction with equity powers must be obeyed, however erroneous the action of the court may be, the and the proper venue challenge the injunction is through the courts)If a law is facially invalid, then the person violating the law cannot be punished. If a court order is unconstitutional, a person may be held in contempt for violating it, even though it was unconstitutional. Shuttlesworth v. City of Birmingham (1969). – a law that makes it illegal to assemble on public property without governmental approval is unconstitutional unless the law sets forth clear and impartial standard governing approval If a law is very clearly/facially unconstitutional, can violate it, then challenge its constitutionality – no worry about collateral bar Court Orders as Prior Restraints. Near v. State of Minnesota ex rel Olsen (1931): Court enjoined a newspaper from publishing based on Minnesota law that barred the publication of malicious, scandalous, or defamatory material in a newspaper. Court orders are regulated as prior restraintsPrior restraints against publication are invalid unless they (A) protect national security during wartime (B) restrict obscenity, or (C) protect against incitement to violence, or forcible overthrow of government RULE: A court order enforcing a statute that prohibits the publication of scandalous stories about public officials is unconstitutional and the court order, enforcing an injunction, is a prior restraint on speech. a) The law made it a crime to publish certain forbidden types of periodical classified in the law as a nuisance. b) The case involved an action brought by a county attorney under the statute to enjoin a periodical as a nuisance as defined in the law. Exceptions that the Court points outDuring war times where the reporting on troop movements or shipments would endanger the war effortInciting acts of violence or violent overthrow of the government. Court Order to Protect National SecurityNew York Times v. United States (1971): New York Times appealed an injunction barring them from them publishing leaked classified material dealing with the Vietnam War. The government appealed the denial of an injunction against the Washington Post. Holding: Court order preventing publication of the Vietnam documents was a prior restraint and the government did not carry its heavy burden to justify the prior restraint. Black and Douglas Concurrences: First Amendment absolutists and any sort of injunction is a prior restraint. Black’s version is pure First Amendment absolutism with original meaning and text as the basis. Douglas’s is absolutism plus reasoning about the absence of a statute, the importance of debate, and the danger of secrecy in government.Brennan Concurrence: government has not carried its burden to show that harm will result – Brennan argues that the government has no case, only conjecture. Cites Near v. Minnesota for the exceptions re prior restraint. AND, the government must clearly make out it case before any injunction can issue.Stewart and White Concurrence: Separation of powers argument—Executive has to keep secrets on national security, but cooperation between legislature and executive would make a better case for keeping this a secretWhite’s version places great emphasis on separation of power and lack of a law passed by Congress, which places a heavy burden on the government. He believes that the danger is great of allowing such a broad sweep of the inherent powers of the Executive and the court. Too dangerous for the courts to do that without any Congressional guidance.Marshall: Also emphasizes SOP and refers to Executive’s having invoked the equity jurisprudence of the Court. Says no to “government by injunction.”Burger Dissent: Refers to unseemly haste. The documents are stolen. Papers should have worked with Nixon administration. Duty of paper to report they have stolen material. Blackmun dissent is similar.Court orders to protect fair trialsNebraska Press Assoc. v. Stuart (1976): Small town Nebraska murder trial—court ordered no publication on certain case facts (confessions, etc.) in order to ensure D a fair trial. Court gag orders are rarely constitutional Gag order: court ordered against pre-trial publicity, to prevent biasing prospective jurors Sequestration: court ordered isolation of jurors/witnesses, to prevent outside influences from swaying them Court order barring pretrial publicity by the media bear a "heavy presumption" of invalidity, which must be analyzed by considering (i) the extent and (prejudicial) nature of pretrial publicity (ii) whether other means would mitigate that publicity's effects, (iii) how effective such an order would be, and (iv) the others precise termsRULE: To determine whether a prior restraint on speech is necessary to ensure a D gets a fair trial, courts must consider the following three factors:The nature and extent of the pretrial news coverageWhether other measures would be likely to mitigate the effects of unrestrained pretrial publicityHow effectively a restraining order would operate to prevent the threatened danger. Court Orders Seizing the Assets of Businesses Convicted of Obscenity ViolationsAlexander v. United States (1993): D owned stores and theaters that disseminated sexual material. In addition to his prison term, D was forced to forfeit his assets including his retail businesses, warehouses, and $9 million in cash. He mainly sold legal sexually-themed material but a few obscene items (four magazines and videotapes) slipped into the inventory sold at several stores. Obscenity is not constitutionally protected and the obscene material he was selling violated applicable criminal law. QUERY: What law caused the forfeiture? Answer: RICO. (Racketeer Influenced and Corrupt Organizations Act) RULE: Forfeiture of sexually explicit material under RICO is NOT a prior restraint under the First Amendment. No prior restraint because no limit on a person’s ability to engage in expressive activity, just must forfeit assets obtained illegally.Kennedy Dissent: the penalty of forfeiture chills speech, that the remedy has no parallel in the court’s jurisprudence, and that the penalty is disproportionateObscenity: Under Supreme Court case law, sexually-explicit communications are deemed legally “obscene” if they (i) objectively arouse sexual excitement, AND (ii) depict sex in a patently offensive way, AND (iii) lack serious value. Communications deemed “obscene” are not protected by the First Amendment. Note that even porn is not necessarily always “obscene,” because it need not depict sex in an offensive way. Racketeering: Basically, one of several statutorily-specified crimes traditionally conducted by organized crime. Most often, this involves extortion, but also includes pimping, bookmaking, drug dealing, money laundering, etc. Under RICO, such “rackets” are punished more harshly, by seizure of all assets involved in the illegal business. Temporary restraining order: Court order restricting a person from specified acts pending the outcome of a judicial proceeding, usually upon proof that allowing the act would cause irreparable harm to one party.Licensing: Lovell v. City of Griffin, Ga. A city ordinance bans all distributing of literature of any kind, by hand or otherwise, without first obtaining permission from the City Manager, and makes violation punishable as a nuisance. HELD: The ordinance is invalid on its face. The appellant was entitled to contest the validity of the ordinance even without seeking a permit before engaging in handbill distribution. Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton (2002). 1A prohibits municipalities from requiring registration and a permit for door-to-door advocacy by groups engaging in religious proselytizing, anonymous political speech, and the distribution of handbills Freedom of speech includes the right to disseminate religious views at private residence Facial challenge – person went ahead and violated the ordinance City of Lakewood v. Plain Dealer Publishing Co. (1988). This case illustrates the requirement of clear standards in any licensing scheme if it is to be valid. The city of Lakewood had a valid ordinance that prohibited the private placement of any structure on public property. (valid time, place, and manner total ban – general public does not have a right to demand areas be a public forum, the government can close off a lot of areas if they wanted). In response to a court holding against them and for the Plain Dealer (seemingly wrong on the part of the judge), they enacted an ordinance that gave the major authority to grant or deny permissions for newsracks. This was unconstitutional, licensing scheme that gives unfettered discretion to the mayor It would seem the idea was to say yes to the Plain Dealer. Sadly, the new ordained was facially invalid because it gave the licensor unbridled discretion. AND the collateral bar rule did not apply. Procedural safeguards. licensing can be okay with very careful safeguards—full and fair hearing before speech is prevented, prompt and final judicial determination of the validity of any preclusion of speech, prompt judicial review for all permit denials.For licensing to be okay, needs to have safeguards and prompt judicial review for all permit’s denials What is infringement of SpeechLaws that infringe speech: (1) prevent compensation for speech, (2) compel expression, (3) condition a benefit on a person forgoing their speech right, (4) pressure individuals not to speak.If the state has taken any action on speech, then needs a constitutional analysis Prohibitions on CompensationUnited States v. National Treasury Employees Union (1995): A statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech. This is a law creating a blanket prohibition that prevents federal employees from accepting any compensation for making speeches or writing articles. The court’s action held unconstitutional as applied to the entire class of Executive Branch employees below grade GS – 16. Justice Stevens makes three kinds of arguments. The first is historical (a lot of great writers wrote while working in the government) . The second relates to a comparison of the burden the prohibition places on lower-level government employees by comparison with other groups (top groups are likely to be compensated through the government, lower unlikely to be sent around by the government, lower level compensation is less likely to affect their message) . Third, a burden on the First Amendment that is not specifically about the burden on those prohibited from compensation for their speech. Congressional law banning federal employees from accepting any compensation for making speech’s or writing articles, even when those expressive activities have nothing to do with employee’s official duties, violates the 1A guarantee of freedom of speech Compelled Speech West Virginia State Board of Education v. Barnette (1943): A forced salute of the flag is compelled speech and an infringement of the First Amendment. This a landmark case in a couple of ways. First, it launches an era in which the Supreme Court takes a newly active role in protecting individual liberties. Second, the compelled speech doctrine has taken on a powerful role in First Amendment doctrine in contexts that could not have been imagined when the case was decided. A state may not compel individual to engage in involuntary expressionThe government cannot compel silence or speech, whether verbal or symbolic, except to prevent “clear and present: danger of a crime National Federation of Family and Life Advocates v. Becerra (2018). Content based restrictions on professional speech are subject to strict scrutiny This case is significant in connection with abortion but it also narrows its commercial speech decisions in a way that could undercut consumer protection laws. A California law contained two mandates for disclosure by clinics that primarily serve pregnant women. First, California required that licensed clinics must provide mandated disclosure informing clinic visitors of California provided free comprehensive family planning services, including abortion. (content based) Second, California required that unlicensed clinics must disclose that they are not licensed medical clinics. (content neutral) The Court applied standard doctrine on content-based regulation of speech to find the “licensed clinic disclosure rule” unconstitutional. Had the doctors say specific things – that’s the content Second, the Court dismissed the “unlicensed disclosure rule” on the basis that California had demonstrated no non-hypothetical justification for the law and that it was uniquely burdensome. The Court also expressed concern that law distinguished among speakers. “In the abortion context, states can compel doctors to give patients “truthful, not misleading information” without violating the First Amendment. In Becerra, the Court narrowed its prior commercial speech decisions, widening the scope of First Amendment protection in a way that could undercut a significant number of consumer protection laws. Applied to abortion, the doctrine created by the court preserves compelled disclosures in the interest of all posing abortion but forecloses disclosures aimed at increasing abortion access.” Professional speech is recognized as something that is okay in licensing and regulatory regime Rumsfeld v. Forum of Academic and Institutional Rights (2006): Solomon Amendment requires that if an institution does not allow Military recruiters access to their campus, the school can lose federal funding. Law schools brought suit arguing this is compelled speech. Rule: federal law requiring law schools receiving federal funding to allow the military to conduct recruiting activities on their campuses does not violate the First Amendment’s protections of speech, conduct, or expressive associationRULE: First Amendment expression only extends to conduct that is inherently expressive.If explanatory speech is needed along with the conduct it is strong evidence that the conduct is not inherently expressive. If combining speech and conduct were enough to create expressive conduct, a regulated party could always transform conduct into “speech” by simply talking about it.Roberts argues that the law regulates conduct, and further argues that any speech in which the school engages is incidental speech for scheduling and the like is nothing like the speech in Barnette. McIntyre v. Ohio Elections Commission (1995): State law required that a pamphleteer put their identity on the pamphlets—outlawed anonymous pamphlet.RULE: State requirements that leaflets identify the author violates the First Amendment because requiring identification on leaflets is compelled speech. Court says that anonymity provides the author, who may be personally unpopular, to ensure that readers do not prejudge the political statements based on the author’s identity. First amendment right to remain anonymous Name = content Unconstitutional ConditionsRULE: government CANNOT condition a benefit on the requirement that a person forgo a constitutional right. Cannot be forced to give up a constitutional right to exercise another right or benefit.Speiser v. Randall (1958): A state cannot condition the benefit of a tax exemption on the applicant’s speech because it has the effect of coercing speech.FCC v. League of Women Voters of California (1984)HELD: Supreme Court struck down a federal statute that prohibited any noncommercial educational broadcast station that received a grant from the Corporation for Public Broadcasting from engaging in editorializing. RULE: government cannot condition funds on a requirement that stations relinquish their right to editorialize.Regan v. Taxation with Representation of Washington (1983): Legislature’s decision not to subsidize the exercise of a fundamental right does NOT infringe the right, and this is NOT subject to strict scrutiny. Choice of funding, not infringing speech. Rust v. Sullivan (1991): Title X limits the ability of Title X fund recipients to engage in speech about abortion, if asked by a client.RULE: Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believed to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way. A federal law may, as a condition of receiving federal funds, constitutionally restrict fund recipients from engaging in abortion-related activitiesBy doing so, the government has NOT discriminated on the basis of viewpoint; it has merely chosen to fund one activity and not the other. The organization is not prohibited from engaging in abortion activities in a part of the organization that is kept completely separate from the Title X.Legal Services Corp v. Velasquez (2001): Statute said that LSC could not represent a client seeking to amend or challenge existing welfare law.RULE: In legal services cases, the lawyer is not a government speaker. The speaker is the person bringing the legal claim. Therefore, the government CANNOT curtail individual speech by liming which claims the LSC lawyers can bring.The First Amendment prohibits Congress from conditioning the receipt of federal funding by restricting the speech of private ernment PressuresUnited States Agency for International Development v. Alliance for Open Society Intern. (2013): Government may NOT use funding and the threat of the loss of funding as a method for the regulation of speech and policies of non-governmental organizations.The First Amendment prohibits the government from conditioning federal funding to an organization on the adoption of certain speech.Unprotected and Less protected SpeechIncitement to Illegal Conduct. Much of the Court’s work lies in metaphors used in connection with how to think about the danger of speech advocating ideas “subversive” of the government. In the reasonable test, the Court tended to say even the tiniest spark could become a conflagration, so the legislature had a right to make reasonable choices to avert risk. Justice Holmes went along with affirming convictions until he made a turn and adopted the idea of the marketplace of ideas, the idea that the strong will prevail in the end so the Court should stand back and let the ultimate majority prevail, and the statement that “every idea is an incitement.” The Dennis formula came in prosecutions under the Smith act of Communist Party activity. In dissent, Justice Douglas anticipated the more speech protective attitude of Brandenburg by arguing that the books involved (the prosecution was for organizing to teach them) are legally in circulation and that their ideas are ugly and make Communism unattractive and unlikely of success. He said Communism in the U.S. was a bogey-man with no chance of success. In 1969, the Brandenburg test finally provided greater precision, in part by gathering insights from the past judicial discussions in the various cases: imminence, likelihood, and intent.Analytical Approaches to Incitement:Clear and Present Danger This formulation provided minimal protection but the phrase still shows up in Court opinions in another context.Ex: Schenck, Frohwerk, Debs (all Holmes), Abrams (Clarke)Usually under Espionage ActReasonableness TestEx: Gitlow, Whitney v. California (Brandeis concurrence is important for speech protective language Often under state criminal syndicalism statutes.Unreasonableness Test: The Court placed emphasis on state police power and indicated deference to the legislative determination, upholding the laws as long as the government’s law and prosecution were reasonable.Risk Formula ApproachEx: Dennis v. United StatesRisk Formula Test: Court must ask whether the gravity of the evil, discounted by its improbability, justifies such an invasion of free speech as is necessary to avoid the danger. Brandenburg Test The Brandenburg Test for IncitementBrandenburg v. Ohio (1969): Overturns Reasonableness Test from Whitney v. California. A conviction for incitement is constitutional only if several requirements are met that the speech has an ability to cause:Imminent harmA likelihood of producing illegal action; andAn intent to cause imminent illegal activity.Holder v. Humanitarian Law Project (2010): American citizens seeking to aid terrorist organizations to use law for certain peaceful ends within a framework on international law. Statute barred Americans from providing any material support to terrorist organizations. Plaintiffs wished Court opinion of their planned activities, which the Court provided (hence “as applied”).RULE: Prohibiting particular forms of support for foreign terrorist groups does NOT violate the First Amendment.Roberts blurs the type of scrutiny he applies:Mentions that the Court gives great deference to issues of international relations.Mentions that preventing terrorism is a compelling government interest.Limited Holding: All this is not to say that any future applications of the material support statute to speech or advocacy will survive First Amendment scrutiny. It is also not to say that any other statute relating to speech and terrorism would satisfy the First Amendment. In particular, we in no way suggest that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations.A statute prohibiting the knowing provision of material support to foreign terrorist organizations does not ban pure political speech or prohibit independent advocacy or expression of any kind; rather, it prohibits “material support,” which most often does not take the form of speech at all, and when it does, the statute is carefully drawn to cover only a narrow category of speech to, under direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations, and it is therefore constitutional.Fighting WordsFighting words rule: speech that is directed at another, likely to prevoke retalitaroy violence of emotional distress Weak doctrine Idea that your words have such force and create such an impact Needs to be directed at a specific person Chaplinksy v. New Hampshire (1942):RULE: words by which the utterance inflicts injury or tends to incite an immediate breach of the peace are not protected by the First Amendment. Chaplinsky recognizes two situations where speech constitutes fighting words:Where it is likely to cause a violent response against the speaker; andWhere it is an insult likely to inflict immediate emotional harm.This is a weak doctrine—has NEVER been used to uphold a conviction again. is about a direct, close interaction between two people, not about a comment aimed at a speaker to an audience or generally in a crowd.Fighting Words Invalidated as Vague and OverbroadGooding v. Wilson (1972): Case illustrated that fighting words statutes will often be overbroad or vague because it is hard to codify fighting words. Government cannot prohibit abusive language except for fighting words FACTS A demonstrator, charged with using “abusive” language for cursing at arresting officers, challenges the statute as vague/overbroad. ???BLACK LETTER RULE Speech restrictions are unconstitutionally overbroad if they are susceptible of application to protected speech, either (a) on their face or (b) as authoritatively construed by courts.Narrow Fighting Words Law as Content-Based RestrictionsR.A.V. v. City of St. Paul, Minnesota (1992): Ordinance banned the display of burning crosses or Nazi symbols as unprotected hate speech and possible fighting ernment may not ban hate speech Statute was drafted within the idea of fighting words FACTS A teen charged with burning a cross in a black neighbor’s yard challenges the constitutionality of a statute banning bias-motivated speech. ??BLACK LETTER RULE Government may not regulate speech, including “fighting words,” based on its hostility or favoritism towards the message expressed.RULE: Fighting words laws will be upheld only if it does NOT draw content-based distinctions among types of speech, such as prohibiting fighting words based on race, but not based on political affiliation.Problem: This rule makes it extremely difficult to craft legislation that meets this requirement without being struck down for being overbroad or vague. Two Instances where content-based restrictions of fighting words are allowedWhere the distinction advances the reason why the category is unprotectedWhere the restriction of speech is meant to prevent secondary effectsFIGHTING words laws can only be upheld if they don’t draw content-based distinctions Made it difficult to pass statutes that are constitutional – cannot draw content-based distinctions on speech but if you fail to draw distinctions, going to be very vague Compare to Reed – content-based regulation subject to strict scrutiny Hostile Audience (Heckler’s Veto) Feiner v. New York (1951): A speaker that refuses to stop speaking despite being asked to stop after the crowd has grown violent is a clear and present danger and arresting him for continuing to speak does not violate the First Amendment. Clear and present danger still pops up and has a presence (he was not telling the crowd to riot, the crowd would riot because he wasn’t going to shut up) When an individual speaks in a way that breaches the peace and attempts to incite a crowd to riot, police officers do not violate the First Amendment by putting a stop to the speech.Black’s Dissent: This is a Heckler’s veto! dissent has been more persuasive than the Court’s opinion. The police of course have power to prevent breaches of the peace. But if, in the name of preserving order, they ever can interfere with a lawful public speaker, they must first make all reasonable attempts to protect him. Have to protect the speaker for his words before they can shut him up – don’t want the hecklers to shut up the speaker with the cops, the 1A is in favor of the speaker The First Amendment requires that the police try to control the audience that is threatening violence and stop the speaker only if crowd control is impossible and a threat to breach of the peace is imminent. Racist SpeechBeauharnais v. Illinois (1952): Group libel is NOT protected by the First Amendment.Racist speech may be punished as group libel FACTS A segregationist was convicted for distributing leaflets libeling blacks. ???BLACK LETTER RULE The government may punish racist speech as group libel, if such punishment is rationally related to preserving peace.BUT the Skokie controversy shows that expression of hate is protected speech and the government may not outlaw symbols of hate, like swastikasBeaurharnais has never been directly overruled but it is not considered good ernment may punish racist speech as group libel, if such punishment is rationally related to preserving peace Virginia v. Black (2003): While a State, consistent with the First Amendment, may ban cross burning carried out with intent to intimidate, the provision in the Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional. Statute establishing intent to intimidate from the act of burning a cross violates the 1A FACTS Three defendants were convicted of cross burning with intent to intimidate another person or group of persons and they appealed. ???BLACK LETTER RULE A state statute banning cross burning with the intent to intimidate another person is not in itself an unconstitutional infringement on free expression, but the establishment of criminal intent from the prohibited act itself violates the First AmendmentThe jury must be instructed that the state has to prove the element of intent to discriminate. Justice Thomas dissented from the holding that cross burning can be constitutionally protected.Statute establishing intent to intimidate from the act of burning a cross violates the 1A Statute banning cross burning with the intent to intimidate another person is not itself an unconstitutional infringement on free expression, but the establishment of criminal intent from the prohibited act itself violates the 1A While the First Amendment protects the right of free expression, it does not prevent a state from punishing content of slight social value that is outweighed by the social interest in order and morality, such as a “true threat.” – burning the cross was prima facie evidence that they had the intent to intimidate Dissent: the statute is constitutional Sexually Oriented SpeechObscenity—The Supreme Court has never afforded protection to material deemed obscene but the Court took several years to create a definition (what is obscene), to rely on that definition so that it was not necessary for the Justices personally to view material held to be obscene in order to sort out the unprotected depiction of sex from protected speech and other expression about sex, and then to place some limits on states could deem obscene, at the same time as holding juries may apply varying community standards to determine what is obscene under federal criminal law. In 1957,in Roth v. US, Justice Brennan made a Bork-style argument about the First Amendment, i.e., that the First Amendment was to assure unfettered exchange of ideas to bring about social and political changes desired by the people. He also used originalist argumentation. He coined the term “prurient interest” to evoke what might be considered a bad depiction of sex. government may regulate “obscene” speech without implicating the 1A In 1973 in Paris Adult Theatre I, the Court per Burger affirmed the Roth holding that obscenity is categorically outside the protection of the First Amendment and made arguments for why that should be. Brennan dissented, arguing that it was not possible to define “obscenity” with sufficient clarity to provide fair notice to those who deal in sexually themed material. Is he arguing that meaning of obscenity is inherently vague?Miller v. California (1973): defines obscenity The government may regulate “obscene” material which (i) depicts or describes sexual conduct, (ii) which conduct is defined specifically by state law, (iii) would be found to appeal to the “prurient interest” by “the average person, applying contemporary community standards,” (iv) portrays sexual conduct in a “patently offensive” way, and (v) has no serious literary, artistic, political, or scientific valueStates have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipient or of exposure to juveniles. Test for Obscenity:Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; ANDWhether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (not jury determination) The Court elaborated on the second element: Patently offensive representation or description of ultimate sexual acts, normal or perverted, actual or simulated, and patently offensive representation or simulation of masturbation, excretory functions, and lewd exhibit of the genitals.Jenkins v. Georgia demonstrates an outside limit to the constitutional authority of the states to define material as obscene and outside the protection of the First Amendment. Pope v. Illois establishes that the protection for redeeming artistic, literary, political, or scientific value is national standard, not one of local community standards.OBSCENITY: Material which (i) depicts or describes sexual conduct, (ii) which conduct is defined specifically by state law, (iii) would be found to appeal to the “prurient interest” by “the average person, applying contemporary community standards,” (iv) portrays sexual conduct in a “patently offensive” way, and (v) has no serious literary, artistic, political, or scientific value. Miller v. California.Child PornographyNew York v. Ferber (1982) The Court created a new categorical exception to the First A.RULE: the state may regulate child pornography, if it (i) is a visual depiction (ii) of sexual conduct specifically described by the state, (iii) by children below a specified age, and (iv) is made with some scienter: The government may prohibit the exhibition, sale, or distribution of child porn even if it does not meet the test for obscenityState’s interest in safeguarding the physical and psychological well-being of a minor is compelling. Massive compelling interest of protecting children The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways:The materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by the circulation. Will follow the child forever The distribution network for child porn must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled. The value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis. MK: Is there an exception for material with serious literary, artistic, scientific, of medical value? Why or why not? The miller test doesn’t get down to the issue Law enforcement can catch distributors, ads and selling, cuts off the economic incentiveAshcroft v. The Free Speech coalition Congress may not suppress sexually explicit images that “appear to be” child pornography No kids were actually harmed in making the porn – limited to protecting actual childrenYoung v. American Mini Theatres, inc Protected but low value sexual speech, content regulation, but the speech is not worth much so they don’t really careGovernment may zone the location of porno theatres Government techniques for Controlling Obscenity and Child Pornography. Stanley v. Georgia (1969) The mere private possession of obscene matter cannot constitutionally be made a crime. Osborne v. Ohio (1990). Government cannot punish private possession of obscenity --- a man charged with criminal possession of obscene materials in his house challenged the ban’s constitutionality – the government cannot criminalize private possession of obscene materials Privacy of home -- Can have in the home, cannot have a right to get shipped through the mail -- No right to possess child porn in home Court’s efforts to decide on a “medium-by-medium” basis, treating differently laws that attempt to keep various media safe for children. Pacifica Foundation creates a concept that there are times when radio broadcast is capable of intruding unexpectedly intrusive into the home, where language that is inappropriate for children to hear without parental choice can be heard by a child before an adult can intervene. On that basis it is constitutional the broadcast of indecent material a matter of sanctions to a radio station operating on the public airwavesCohen v. California, jacket saying “fuck the draft” to a courthouse Absent a particularized and compelling purpose, a state may not criminalize a public displace of a single 4-letter expletive without violating the 1A and 14A Wasn’t directed at an individual Idea of tolerance Animal AbuseU.S. v. Stevens (2010): Federal statute banned the depiction of torturing, abusing, killing animals. It was directed at the interstate market in “crush videos,” which were videos of women torturing puppies for the benefit of certain sexual fetishists. There are two important pieces of this case. The first is whether Congress can apply a balancing logic to carve out a new unprotected category of speech. Here Congress tried to carve out animal abuse—specifically “crush videos”—as a category of unprotected speech. The Court denied Congress that authority, saying that no such exception to the First Amendment. The Court emphasized that the existing exceptions were historic and traditional, and that the child porn exception in Ferber was by no means based on a cost-benefit analysis but rather on the compelling state interest versus the de miminis value of using children to make works depicting children in sexual acts. Second, the case applied basic First Amendment principles and found the specific statute that Congress passed to ban the distribution of “crush videos” unconstitutional. Overbroad ban Brown v. Entertainment Merchants Association (2011)Prohibition on the sale of violent video games to minors is unconstitutional - minors are entitled to a significant measure of 1A protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of materials to them In this case the Court applies strict scrutiny to a California law imposing restrictions on the sale of violent video games to minors. The Court rejects the attempt in the law to assimilate the definition of the prohibited video games to elements of the Miller definition of obscenity. Miller is only about sex. This the law is content regulation in an area that is not unprotected at allCalifornia also argues that the law is an aid to parents who want to restrict their children’s access to violent video games. How does the Court respond to that argument? Alito concurs but prefers to different doctrine for disposing of the case. Federal communications commission v Pacifica Foundation Government may restrict TV/radio broadcast of indecent language INSTANT FACTS When the FCC reprimanded a radio station for broadcasting a monologue satirizing indecent words, the station challenged the order’s constitutionality. BLACK LETTER RULE The government may impose certain sanctions against radio/TV broadcasts containing patently-offensive language (involving sex or excretion) in certain circumstances, unless the sanctions target their social or political message.Rational that they can be penalized because radio goes into one’s home ................
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