Equal Protection



Table of Contents TOC \o "1-3" \h \z \u I.Equal Protection……………………………………………………………………………… PAGEREF _Toc310283644 \h 3A.Introduction PAGEREF _Toc310283645 \h 31.Constitutional Provisions Concerning Equal Protection PAGEREF _Toc310283646 \h 32.A Framework for Equal Protection PAGEREF _Toc310283647 \h 3B.The Rational Basis Test PAGEREF _Toc310283648 \h 61.Introduction PAGEREF _Toc310283649 \h 62.Does the Law Have a Legitimate Purpose? PAGEREF _Toc310283650 \h 63.The Requirement for a “Reasonable Relationship” PAGEREF _Toc310283651 \h 7C.Classifications Based on Race and National Origin PAGEREF _Toc310283652 \h 81.Race Discrimination and Slavery before the 13th and 14th Amendments PAGEREF _Toc310283653 \h 82.Strict Scrutiny for Discrimination Based on Race and National Origin PAGEREF _Toc310283654 \h 83.Proving the Existence of a Race or National Origin Classification PAGEREF _Toc310283655 \h 94.Remedies: The Problem of School Segregation PAGEREF _Toc310283656 \h 115.Racial Classifications Benefiting Minorities PAGEREF _Toc310283657 \h 13D.Gender Classifications PAGEREF _Toc310283658 \h 151.The Level of Scrutiny PAGEREF _Toc310283659 \h 152.Proving the Existence of a Gender Classification PAGEREF _Toc310283660 \h 173.Gender Classifications Benefiting Women PAGEREF _Toc310283661 \h 18E.Alienage Classifications PAGEREF _Toc310283662 \h 191.Strict Scrutiny as the General Rule PAGEREF _Toc310283663 \h 202.Alienage Classifications Related to Self-Government and the Democratic Process PAGEREF _Toc310283664 \h 203.Congressionally Approved Discrimination PAGEREF _Toc310283665 \h 214.Undocumented Aliens and Equal Protection PAGEREF _Toc310283666 \h 21F.Discrimination against Nonmarital Children PAGEREF _Toc310283667 \h 221.Intermediate Scrutiny Is Used PAGEREF _Toc310283668 \h 222.Laws Denying Benefits to All Nonmarital Children PAGEREF _Toc310283669 \h 233.Laws That Provide a Benefit to Some Nonmarital Children PAGEREF _Toc310283670 \h 234.Statutes of Limitations for Establishing Paternity PAGEREF _Toc310283671 \h 23G.Other Types of Discrimination: Only Rational Basis Review PAGEREF _Toc310283672 \h 241.Age Classifications PAGEREF _Toc310283673 \h 242.Discrimination Based on Disability PAGEREF _Toc310283674 \h 243.Wealth Distribution PAGEREF _Toc310283675 \h 254.Discrimination Based on Sexual Orientation PAGEREF _Toc310283676 \h 25II.First Amendment: Freedom of Expression……………………………………….. PAGEREF _Toc310283677 \h 25A.Free Speech Methodology PAGEREF _Toc310283678 \h 251.The Distinction between Content-Based and Content-Neutral Laws PAGEREF _Toc310283679 \h 252.Vagueness and Overbreadth PAGEREF _Toc310283680 \h 28B.Types of Unprotected and Less Protected Speech PAGEREF _Toc310283681 \h 301.Incitement of Illegal Activity PAGEREF _Toc310283682 \h 302.Fighting Words PAGEREF _Toc310283683 \h 333.Hostile Audience PAGEREF _Toc310283684 \h 364.Racist and Hate Speech PAGEREF _Toc310283685 \h 385.Sexually Oriented Speech PAGEREF _Toc310283686 \h mercial Speech PAGEREF _Toc310283687 \h 487.Conduct as Speech PAGEREF _Toc310283688 \h 51C.What Places are Available for Speech? PAGEREF _Toc310283689 \h ernment properties and speech PAGEREF _Toc310283690 \h 552.Public forums PAGEREF _Toc310283691 \h 563.Limited public forums PAGEREF _Toc310283692 \h 614.Nonpublic forums PAGEREF _Toc310283693 \h 615.What determines the status of a forum? PAGEREF _Toc310283694 \h 63III.First Amendment: Religion……………………………………………………….. PAGEREF _Toc310283695 \h 64A.The Free Exercise Clause PAGEREF _Toc310283696 \h 641.Introduction PAGEREF _Toc310283697 \h 642.Strict Scrutiny: 1960 – 1990 PAGEREF _Toc310283698 \h 653.Employment Division v. Smith and its application PAGEREF _Toc310283699 \h 65B.The Establishment Clause PAGEREF _Toc310283700 \h peting Theories of the Establishment Clause PAGEREF _Toc310283701 \h 672.Prohibition of Government Discrimination among Religions PAGEREF _Toc310283702 \h 703.The Lemon Test PAGEREF _Toc310283703 \h 714.Religious Speech and the First Amendment PAGEREF _Toc310283704 \h 735.When Can Religion Become a Part of Government Activities? PAGEREF _Toc310283705 \h 76Equal ProtectionIntroductionConstitutional Provisions Concerning Equal ProtectionSources: 1) 14th Amendment as it applies to the states and local government and 2) 5th Amendment as it applies to the federal government because of the Due Process Clause.After the Civil War, widespread discrimination against former slaves led to the passage of the 14th Amendment: “No state shall…deny to any person within its jurisdiction the equal protection of the laws.”Brown v. Board of Education ushered in the modern era of equal protection jurisprudence. In Bolling v. Sharpe, a companion case to Brown that concerned the segregation of the District of Columbia public schools, the Court held that equal protection applies to the federal government through the Due Process Clause of the 5th Amendment.A Framework for Equal ProtectionAll equal protection cases pose the same basic question: Is the government’s classification justified by a sufficient purpose?If these laws, or any government actions, are challenged based on equal protection, the issue is whether the government can identify a sufficiently important objective for its discrimination. What constitutes a sufficient justification depends entirely on the type of discrimination.Note: Footnote 4 referring to United States v. Carolene Products Co.Here the Supreme Court indicated that a presumption of constitutionality might not apply to certain categories of noneconomic legislation. Legislation that restricts political processes, discriminates against minorities, or contravenes a specifically enumerated constitutional liberty, the Court said, may be subject to “more searching judicial scrutiny.” This ushered in the era of multiple levels of scrutiny in judicial review.The footnote outlines factors that help decide whether a higher level of judicial scrutiny is warranted for the legislation:Does the law discriminate on its face?Does it discriminate against particular religious, national, or racial minorities, or discrete and insular minorities?Discrete and insular minorities have been identified by: religious affiliation, national origin, race, those groups who have historically been unable to protect themselves using the political process, alienage, gender, illegitimacy, disability, sexual orientation, etc.Question 1: What Is the Classification?Equal protection analysis always must begin by identifying how the government is distinguishing among people. There are two basic ways of establishing a classification:Discrimination on its face: the law in its very terms draws a distinction among people based on a particular characteristicFacially neutral: no explicit distinction in the terms but there is a discriminatory impact to the law or discriminatory effects from its administration.The Supreme Court has made it clear that discriminatory impact is insufficient to prove a racial or gender classification. If a law is facially neutral, demonstrating a race or gender classification requires proof that there is a discriminatory purpose behind the law.Question 2: What Is the Appropriate Level of Scrutiny?Once the classification is identified, the next step in analysis is to identify the level of scrutiny to be applied. Strict ScrutinyUnder strict scrutiny, a law is upheld if it is proven necessary to achieve a compelling government purpose. The government has the burden of proof and the law will be upheld only if the government persuades the court that it is necessary to achieve a compelling purpose.Examples: discrimination based on race or national origin and discrimination against aliens.Intermediate ScrutinyUnder intermediate scrutiny, a law is upheld if it is substantially related to an important government purpose. The Court need not find the government’s purpose “compelling” but it must characterize the objects as “important.” The means used need to be necessary, but must have a “substantial relationship” to the end being sought.Examples: discrimination based on gender or non-marital childrenRational Basis ReviewUnder the rational basis review a law will be upheld if it is rationally related to a legitimate government purpose. This test is enormously deferential to the government and only rarely have laws been declared unconstitutional for failing to meet this level of review.Several criteria are applied in determining the level of scrutiny. The Court has emphasized that immutable characteristics – like race, national origin, gender and the marital status of one’s parents – warrant heightened scrutiny. The Court also considers the ability of the group to protect itself through the political process.Question 3: Does the Government Action Meet the Level of Scrutiny?The level of scrutiny is the rule of law that is applied to the particular government action being challenged as denying equal protection. Strict scrutiny requires the end must be deemed compelling for the law to be held; for intermediate scrutiny, the end has to be regarded as important; and for the rational basis test, there just has to be a legitimate purpose.In evaluating the relationship of the means of the particular law to the end, the Supreme Court often focuses on the degree to which a law is underinclusive and/or overinclusive. Underinclusive: if the law does not apply to individuals who are similar to those to whom the law applies.Overinclusive: if a law applies to those who need not be included in order for the government to achieve its purpose.Note that a law can be both underinclusive and overinclusive. If strict scrutiny is used, the government will have to show that the means are necessary – the least restrictive alternative – to achieve the goal. Under intermediate scrutiny, a closer fit, less underinclusiveness or overinclusiveness, will be required than under the rational basis test.The Protection of Fundamental Rights under Equal ProtectionThe government discriminated among people as to the exercise of a fundamental right in Skinner v. Oklahoma. The Oklahoma Habitual Criminal Sterilization Act required surgical sterilization for individuals who had been convicted three or more times for crimes involving “moral turpitude.” The Supreme Court declared the law unconstitutional as violating equal protection because it discriminated among people in their ability to exercise a fundamental liberty: the right to procreate.The Court has also used the Equal Protection Clause to protect other fundamental rights such as voting access to the judicial process and interstate travel.The Rational Basis TestIntroductionUnless the government action is a type of discrimination that warrants the application of intermediate or strict scrutiny, rational basis review is used. The basic requirement is that a law meets rational basis review if it is rationally related to a legitimate government purpose.The challenger has the burden of proof when rational basis review is applied. There is a strong presumption in favor of laws that are challenged under the rational basis test.Legislation often involves arbitrary choices favoring some over others, and judicial deference leaves these decisions to the political process.In examining a law under rational basis review, there are two questions:Does the law have a legitimate purpose? andIs the law rationally related to achieving it?Does the Law Have a Legitimate Purpose?What Constitutes a Legitimate Purpose?The government has a legitimate purpose if it advances a traditional “police” purpose: protecting safety, public health, or public morals. Virtually any goal that is not forbidden by the Constitution will be deemed sufficient to meet the rational basis test.Romer v. Evans*The Court found that a voter initiative in Colorado that repealed laws prohibiting discrimination based on sexual orientation and that precluded the adoption of new protections failed rational basis review.The Court explained that there was no legitimate purpose in singling out a particular group and precluding it from using the political processMust It Be the Actual Purpose or Is a Conceivable Purpose Enough?The Court’s enormous judicial deference under the rational basis test is, in part, due to its willingness to accept any conceivable legitimate purpose as sufficient, even if it was not the government’s actual purpose.The Court has declared that under rational basis review the actual purpose behind a law is irrelevant and the law must be upheld “if any state of facts reasonably may be conceived to justify” its discrimination.The key disagreement between the majority and dissent in such cases is over whether any conceivable legitimate purpose should be sufficient or whether a legitimate actual purpose is required.United States Railroad Retirement Board v. FritzThe Court upheld a federal law designed to prevent retired railroad workers from receiving benefits under both social security and the railroad retirement system.The Court stated there were plausible reasons for Congress’ classifications and that was enough. It is constitutionally irrelevant whether the reasoning in fact underlies the legislative decision because this Court never has insisted that a legislative body articulate its reasons for enacting a statute. This is particularly true where the legislature must necessarily engage in a process of line drawing.Subsequently, in Federal Communications Commission v. Beach Communications, Inc., the Court reaffirmed that any conceivable legislative purpose is sufficient and even went so far as to say that “those attacking the rationality of the legislative classifications have the burden to negate every conceivable basis which might support it.If any conceivable purpose is sufficient, very few laws will fail the rational basis test. On the other hand, those who defend the Supreme Court point out that rarely is there a single, identifiable purpose for a law.The Requirement for a “Reasonable Relationship”Tolerance for Underinclusiveness under Rational Basis ReviewLaws are underinclusive when they do not regulate all who are similarly situated. Underinclusive laws raise the concern that the government has enacted a law that targets a particular politically powerless group or that exempts those with more political clout.Railway Express Agency, Inc. v. New YorkThe Court upheld an ordinance that banned all advertising on the sides of trucks unless the ad was for the business of the truck’s owner.The Court concluded that the government might have perceived some difference among the ads. The Court stated that Congress may “go one step at a time” and therefore only include one group at a time while enacting legislation.Tolerance for Overinclusiveness under Rational Basis ReviewNew York City Transit Authority v. BeazerThe Court upheld a city’s regulation that prevented with in a methadone maintenance programs from holding positions with the NYTA. Although a strong a majority of users were drug-free, the Court accepted the argument there was no more precise and cost-effective way to promote safety other than a total ban.Cases Where Laws Are Deemed Arbitrary and UnreasonableU.S. Dept. of Agriculture v. Moreno*The Court held unconstitutional a law the excluded households with unrelated people from obtaining food stamps. The Court explained the express congressional purpose of discriminating against “hippies” could not constitute a legitimate purpose.City of Cleburne v. Cleburne Living Center*The Court declared unconstitutional a law that required a special permit for the operation of a group home for the mentally disabled. The city proffered numerous reasons but the court held all were based on prejudices against the mentally disabled.The Court often allows substantial underinclusiveness in order for the government to move “one step at a time,” but it seems here the court applied rational basis with a “bite*.”Classifications Based on Race and National OriginRace Discrimination and Slavery before the 13th and 14th AmendmentsPrior to the 13th Amendment, slavery was constitutional. The 14th Amendment ensured equal protection and thus prevented discrimination.Dred Scott v. SanfordThe Court declared the Missouri Compromise unconstitutional and broadly held that slaves were property. The Court held that the Framers did not intend to extend the privileges and protections of U.S. citizens to slaves. They held that slaves could not become citizens but that the Constitution only conferred the duty of the government to protect property owners’ rights.Note: Section 1 of the 14th Amendment overrules Dred Scott by declaring that all persons “born or naturalized in the U.S…. are citizens of the U.S. and of the State wherein they reside.” Section 1 also guarantees that no state shall deprive any citizen of the privileges or immunities of citizenship, or deprive any person of life, liberty, or property without due process of law, or deny any person “equal protection of the laws.”Strict Scrutiny for Discrimination Based on Race and National OriginIt is established that racial classifications will be allowed only if the government can meet the heavy burden of demonstrating that the discrimination is necessary to achieve a compelling government purpose. The Court has expressly declared that all racial classifications must meet strict scrutiny.Proving the Existence of a Race or National Origin ClassificationThere are two ways of demonstrating the existence of a race or national origin classification: discrimination on its face or facially neutral laws with a discriminatory purpose.Race and National Origin Classifications on the Face of the LawRace-Specific Classifications That Disadvantage MinoritiesKorematsu v. United States (only case to be upheld…)The Court upheld an evacuation of Japanese-Americans from a “military area,” after receiving evidence from the military of imminent danger to the public safety. The law was designed as a protection against espionage and sabotage.”The government used race alone as a classification and was enormously overinclusive (all J-P were interned because a few may be disloyal) and underinclusive (those of other races who posed a threat were not interned).Racial Classifications Burdening Both Whites and MinoritiesLoving v. VirginiaThe Court declared unconstitutional a state’s miscegenation statute that made it a crime for a white person to marry outside the Caucasian race.Regardless that the law punishes equally both the white and Negro participants, mere “equal application” of a statute containing racial classifications does not diminish the racial discrimination.Palmore v. SidotiThe Court denied a father’s attempt to obtain child custody of daughter by filing petition to modify the prior judgment because the child’s mother was now cohabitating with a Negro, whom she married.Private biases and the possible injury they might inflict are not permissible considerations for removal of an infant child from custody of its natural mother.Laws Requiring Separation of the RacesStatutes requiring separation of the races are a third type of racial classification that can exist on the face of the law.Plessy v. Ferguson (1896)The Court upheld laws that mandated that blacks and whites use “separate, but equal facilities.” The Court explicitly addressed the claim that such laws are based on an assumption of the inferiority of blacks and thus stigmatize them with a second-class status.“We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”Initial Attack on “Separate but Equal”Brown v. Board of EducationThe Court, in a unanimous decision, held that separate but equal was impermissible in the realm of public education.The Court stated that historical sources are inconclusive as to whether separate but equal is constitutional so they looked to the effect of segregation on public education. The Court declared that state-mandated segregation inherently stamps black children as inferior and impairs their education opportunities. The Invalidation of Segregation in Other ContextsJohnson v. CaliforniaThe Court held that strict scrutiny must be used in evaluating routine racial segregation of prisoners. Prison officials argued racial segregation was necessary to prevent gang violence. The government claimed the segregation did not constitute discrimination because everyone was treated equally. The Court rejected this saying “separate but equal” is not acceptable.Facially Neutral Laws with a Discriminatory Impact or with Discriminatory AdministrationThe Requirement for Proof of a Discrimination PurposeWashington v. DavisThe Supreme upheld a law requiring all candidates for the Washington, D.C. to take an entrance exam; statistics showed that blacks failed much more often than whites. The Court held that proof of a discriminatory impact is insufficient, by itself, to show the existence of a racial classification.This means that laws that are facially neutral as to race and national origin will receive more than rational basis review only if there is proof of a discriminatory purpose (see Mobile v. Bolden below). A discriminatory or disparate impact will not be enough.Mobile v. BoldenThe Court upheld Mobile, Alabama’s at-large election system although, due to highly polarized voting and a slight majority of whites in the city, only whites were elected. Because there was no discriminatory intent, it was held to be constitutional.McCleskey v. KempThe Court held that proof of discrimination impact in the administration of the death penalty was insufficient to show an equal protection violation. Although statistics showed racial inequality in the imposition of capital punishment, for the defendant to demonstrate an equal protection violation, he “must prove that the decisionmakers in his case acted with discriminatory purpose.Because the defendant could not prove that the prosecutor or jury in his case was biased, no equal protection violation existed.Remedies: The Problem of School SegregationIn some cases, the remedy is simply invalidating the discriminatory law. In some cases, the Court must go further and fashion an injunction. For example, in desegregation cases, the Court will generally issue an order prohibiting the offending conducts.Because schools tend to serve neighborhoods and residential segregation was prevalent, desegregating schools proved extremely difficult. Segregation was made almost impossible due to an absence of a substantial number of white students in city school systems.Brown v. Board of EducationThe Court entered a unanimous decision that separate but equal was impermissible in the realm of public education. Brown involved a challenge to the segregation of a Kansas public school.The Court declared that state-mandated segregation inherently stamps black children as inferior and impairs their educational opportunities.Proving discrimination in the school contextKeyes v. School District No. 1, Denver, ColoradoThe Court held that absent laws requiring school segregation, plaintiffs must prove intentional segregative acts affecting a substantial part of the school system.De jure segregation (South): explicit segregation by lawNote that in a district where there was de jure segregation in 1954, the federal government may order the district to desegregate the district (even still in, for example, 1970).De facto segregation (North): segregation in practice but not by law; this constitutes a constitutional violation only if there is proof of discriminatory purposeHere, the government must prove that there was some discriminatory or disparate impact as of 1954 before obtaining a court order to desegregate.Dayton Board of Education v. BrinkmanProof of racial separation in schools is not sufficient to establish an equal protection violation or provide a basis for federal court remedies. As is true in other areas of equal protection law, there must be either proof of laws that mandated segregation or evidence of intentional acts to segregate the schools.Proof of intentional discrimination as to a substantial part of the school system will justify a system wide remedy; unless the school system can demonstrate that the segregation in those areas was not a consequence of its segregative acts.Judicial power to impose remedies in school desegregation casesMilliken v. BradleyThe Court held that “without an interdistrict violation and interdistrict effect there is no constitutional wrong calling for an interdistrict remedy.As a result, white students were not bussed into city schools nor blacks bussed to suburban schools. This is because multidistrict remedies are only available if multidistricts’ policies fostered discrimination or is a state law caused the interdistrict segregation. Board of Education of Oklahoma City Public Schools v. DowellOklahoma schools had previously been segregated by a state mandate; but the segregation had been corrected. Evidence proved ending the mandate would result in resegregation. The Court ruled that once a “unitary” school system had been achieved, a federal court’s desegregation order should end, even if it will mean resegregation of the schools.The Court said that the desegregation should be ended if the board “has complied in good faith” and “the vestiges of past discrimination have been eliminated to the extent practice.”Missouri v. JenkinsThe Court ordered an end to a school desegregation order of the Kansas City schools. The Court held there was no proof of an interdistrict violation and that the social reality is that many city school systems are now primarily composed of minorities and suburban schools of whites.Applying Milliken, offering incentives to attract students from outside the district was impermissible because there was no interdistrict violation.Finally, the Court ruled that the continued disparity in student test scores did not justify continuance of the federal court’s desegregation order: equal opportunity does not mean equal results.Parents Involved in Community Schools v. Seattle School Dist. No. 1Racial balance between local high school districts is not a compelling government interest under the Equal Protection Clause. Voluntarily adopting a student assignment plan requiring minimum and maximum enrollment percentages for black students violate the Equal Protection Clause. Here the issue is pure numerical racial balancing, not admission based on criteria which included racial diversity as only one factor.When should federal desegregation remedies end?The Supreme Court held in Pasadena City Board of Education v. Spangler that redrawing attendance lines on an annual basis to prevent blacks from being a majority in any district was unconstitutional because residential shifts were inevitable in cities and that they might alter the racial composition of the schools.In Dowell, the Court held that a segregation decree should end once a unitary school system has been achieved; regardless if resegregation would result. Furthermore, the decree should end once the board has complied in good faith and the past discrimination has been eliminated to the extent practicable.In Missouri v. Jenkins, the Court held there was no proof of interdistrict violation and that the reality is that cities are primarily comprised of minority students and suburbs of white students. Without proof of interdistrict discrimination or state action, interdistrict remedies are improper.Racial Classifications Benefiting MinoritiesWhat level of scrutiny for racial classifications benefiting minorities?It is clearly established that strict scrutiny will be used to evaluate all government affirmative action plans. This was set forth in Adarand Constructors, Inc. v. Pena and later reaffirmed in Grutter v. Bollinger and Gratz v. Bollinger.What purposes for affirmative action programs are sufficient to meet strict scrutiny?Remedying past discriminationIn Adarand, the Court held that federal affirmative action efforts are to be treated the same as those by state and local governments. Thus, the Court is unlikely to accept affirmative action efforts where there is neither proof of discrimination by the entity nor proof that the particular recipients’ rights were violated.Under current law, affirmative action will only be allowed if it is directed at entities that are proven victims of that discrimination while it is unclear if the Court will allow affirmative action directed at particular entities or sectors of the economy where discrimination has been proved to occur, but where the beneficiaries are not themselves the proved victims of this discrimination.Enhancing diversityIn Regents of the University of California v. Bakke, the Court found impermissible UC-Davis Med School’s set-aside of 16 slots in the entering class of 100 for minority students. Justice Powell, writing for himself, stated that strict scrutiny should be used for any affirmative action because the use of race or ethnicity was inherently suspect. Further, he concluded the set-aside was unconstitutional but race as one factor is permissible in admission criteria to increase diversity.Grutter v. Bollinger The Court ruled that colleges and universities have a compelling interest in creating a diverse student body and that they may use race as one factor, among many, to benefit minorities and enhance diversity.Gratz v. BollingerA companion case to Grutter, the Court held that a university’s policy that automatically distributes a percentage of points necessary for guaranteed admission to every “underrepresented minority” solely because of race is not narrowly tailored to achieve the interest in educational diversity to avoid violating the Equal Protection Clause.Providing role modelsThe Supreme Court has rejected this as a justification for affirmative action because this method could be used to escape the obligation to remedy such practices by justifying the small percentage of black teachers by reference to the small number of black students.Enhancing services provided to minority communitiesThis was also rejected as a justification for affirmative action. In Bakke, this was rejected as there was no proof that training more black doctors would mean that there would be more doctors actually practicing in minority communities. Also, there might be other ways of achieving this goal more directly, such as providing incentives for doctors to work in areas that are underserved.What techniques of affirmative action are sufficient to meet strict scrutiny?Numerical set-asidesThe Court has made it clear that numerical set-asides will be allowed, if at all, only if needed to remedy clearly proven past discrimination (i.e., Bakke).In Richmond v. J.A. Croson Co., the Court invalidated an affirmative action program in Richmond, VA, that set aside 30 percent of public works monies for minority-owned businesses. This was due to the fact that it was not narrowly tailored enough here because it also benefited “Spanish-speaking, oriental, Indian, Eskimo or Aleut persons…that may never have suffered from discrimination in the construction industry in Richmond. Using race as one factor in decisions to help minoritiesSee Grutter and Gratz above. Diversity is a compelling interest in education and universities may use race as a factor to ensure diversity, but quotas or numerical quantification of benefits is impermissible.Drawing election districts to increase minority representationThe Court indicated two ways in which it can be demonstrated that race was used in drawing election districts and thus strict scrutiny is to be applied. One is if a district has a “bizarre” shape that, in itself, makes clear that race was the basis for drawing the lines.Alternatively, if the use of race in districting cannot be inferred from the shape of the district, strict scrutiny is justified if it is proved that race was a “predominant” factor in drawing the lines.The Court has stated, “strict scrutiny does not apply merely because redistricting is performed with consciousness of race. For strict scrutiny to apply, the plaintiffs must prove that other legitimate districting principles were ‘subordinate’ to race.” The views of the Justice Department about the desirability of maximizing minority districts do not constitute a compelling interest sufficient to meet strict scrutiny.Easley v. CromartieThe Court considered the constitutionality of districts for congressional seats in North Carolina. The Court was clear that the government may use race as a factor in districting if the goal is political, such as protecting a safe seat for an incumbent or creating a district which has a majority of one political party.Note: the Court accepted the use of race to create a majority Democrat district because African-American in North Carolina vote Democrat 95% of the time.Gender ClassificationsThe Level of ScrutinyEarly CasesWest Coast Hotel v. ParishThe Court upheld a minimum wage law for women, declaring: “What can be closer to public interest than the health of women and their protection from unscrupulous and overreaching employers?”Here, the government interest was the protection of women.The emergence of intermediate scrutinyFrontiero v. RichardsonSince there was no majority supporting strict scrutiny, the level of scrutiny remained uncertain. 4 Justices desired strict scrutiny, 3 Justices agreed with the result but did not approve of strict scrutiny, and 1 Justice dissented.A federal law allowed a man to automatically claim his wife as a dependent and thereby receive greater medical benefits. A woman, however, only could do so if she could prove her spouse was dependent on her for over half of his support.Craig v. BorenThe Court finally agreed upon intermediate scrutiny as the appropriate level of review for gender classification.The Court declared unconstitutional an Oklahoma law that allowed women to buy alcohol at age 18 but men could not until age 21. Although a traffic safety is undoubtedly an “important” government interest, gender discrimination was not substantially related to that objective.Mississippi University for Women v. HoganThe Court applied intermediate scrutiny to declare unconstitutional a state nursing school that was available only to women.The Court stated: “Rather than compensate for discriminatory barriers faced by women, MUW’s policy tends to perpetuate the stereotyped view of nursing as an exclusively woman’s job. By assuring more openings to women than to men, MUW lends credibility to the old view that women, not men, should be nurses.United States v. VirginiaThe Court declared unconstitutional the exclusion of women by the Virginia Military Institute. Virginia created Virginia’s Women’s Institute for Leadership at Mary Baldwin College but the Court found this insufficient to excuse VMI’s gender discrimination; women were still denied an opportunity available only to men.The Court stated: “The burden of justification [for gender based classifications] is demanding and it rests entirely on the State. The justification must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.”Michael M. v. Superior CourtThe Court upheld a state’s statutory rape law that punished men for having sexual intercourse with a woman under age 18, but did not punish women for having sex with a man under age 18.The Court held that the state could attack the problem of teenage pregnancy and sexual activity by regulating and punishing men, but not women but virtually all of the significant harmful and inescapably identifiable consequences of teenage pregnancy fall on the female. Furthermore, a gender-neutral law was less likely to be effective because girls would be less likely to file complaints or be witnesses if they, too, faced criminal liability.What should be the level of scrutiny?Many of the factors that explain the use of strict scrutiny for racial classifications also apply to gender discrimination:There is a long history of discrimination against women in virtually every aspect of societySex, like race and national origin, is an immutable characteristicWomen, like racial minorities, tend to be significantly underrepresented in the political processArguments for intermediate scrutiny:The 14th Amendment didn’t exclude women, it was only meant to outlaw racial discrimination; its purpose wasn’t to address sex discriminationBiological differences between men and women make it more likely that gender classifications will be justified, and thus less than strict scrutiny is appropriate to increase the chances that desirable laws will be upheldIt is claimed that women are a political majority who are not isolated from men and thus cannot be considered a discrete and insular minority.Proving the Existence of a Gender ClassificationThere are two major ways of proving a gender classification; they are identical to the two methods of demonstrating a racial classification: facially discriminatory and facially neutral but a demonstration a discriminatory impact and a discriminatory purpose.Geduldig v. AielloThe Court upheld a California disability law stating that it was not a denial of equal protection for a state’s disability insurance system to exclude pregnancy-related disabilities, but include disabilities affecting only men.The program divides potential recipients into two groups: pregnant women and nonpregnant persons. While the first is exclusively female, the second includes males and females. Since this is not a gender classification, it met rational basis review because the state has a legitimate interest in maintaining the fiscal integrity of its program and making choices in allocating funds.Congress, by statute, effectively overruled Geduldig when it enacted the Pregnancy Discrimination Act, which defined sex discrimination to include pregnancy discrimination and prohibits discrimination on that basis.Gender Classifications Benefiting WomenThe majority of Supreme Court cases concerning gender discrimination have involved laws the benefit women and disadvantage men.A few principles from the following:Gender classifications benefiting women based on role stereotypes will not be allowedGender classifications benefiting women designed to remedy past discrimination and differences in opportunity generally are permittedGender classifications benefiting women can be based on biological differences between men and womenGender classifications based on role stereotypesThe Supreme Court frequently has invalidated laws that benefit women and disadvantage men when the Court perceives the law as being based on stereotypical assumptions about gender roles.Similarly, the Court declared unconstitutional many laws that automatically allowed women economic benefits, such as when their husbands died, but permitted men the same benefits only if they proved dependence on their wives’ income.Stereotype: male workers earnings are vital to the support of their families, while the earnings of female wage earners do not significantly contribute to their families’ support.In numerous cases, the Court has rejected laws that benefited women because they were based on the stereotype that of economically dependent women and economically independent men.Other stereotypes also have been rejected as a sufficient basis for gender classifications benefiting women: those involving the women’s role in the family and raising children as compared with men. The Court has expressly rejected the claim that there is a fundamental difference between maternal and paternal relations. However, the Court has permitted a difference to be drawn among men between those who had legally established paternity in a nonmarital relation and those who hadn’t.Sometimes the stereotype is about what occupations are primarily for women and which are for men. See Mississippi University for Women v. Hogan above. Note: The Court has upheld laws benefiting women even though they seem to be based on stereotypes: see Michael M. v. Superior Court.Gender classifications benefiting women as a remedyThe Court has indicated that gender classifications benefiting women will be allowed when they are designed to remedy past discrimination or differences in opportunity.Thus far, however, the Court has not considered a constitutional challenge to an affirm action program designed to benefit women.Gender classifications benefiting women because of biological differences between men and womenNguyen v. Immigration and Naturalization ServiceThe Court allowed a gender classification benefiting women because of biological differences between men and women. The Court allowed a difference in INS rules favoring mothers over fathers because of the greater certainty as to the identity of the mother as compared to the father and the greater opportunity that mothers have in establishing a relationship with their children.The statute imposed different and greater requirements for the child’s acquisition of citizenship if the citizen parent is the father as opposed to the mother (deals with cases in which only one parent is a U.S. citizen).The Court stated the difference in the rule serves the government’s interest in being sure that there is a biological relationship between the parent and the child. Furthermore, the government interest is to ensure that the child and citizen parent have some demonstrated opportunity or potential to develop a relationship that consists of real, everyday tires that provides a connection between the child and the citizen parent and, in turn, the U.S.The significance of this case is in allowing a gender classification benefiting women based on biological differences between men and women.Alienage ClassificationsAlienage classifications refer to discrimination against noncitizens. This type of discrimination should be distinguished from national origin classifications, which discriminate against individuals because of the country that a person, or his or her ancestors, came from. Aliens are protected from discrimination because the equal protection clause explicitly says that no “person” shall be denied equal protection of the laws. The clause does not mention the word “citizen,” although it is used in the privileges or immunities clause, which also is found in § 1 of the 14th Amendment. Often state and local laws that discriminate against aliens can be challenged on preemption grounds as well as for violating equal protection. The Supreme Court has held that federal immigration laws wholly occupy the field and preempt state efforts to regulate immigration.The general rule is that strict scrutiny is used to evaluate discrimination against noncitizens. There are, however, several exceptions where less than strict scrutiny is used: (1) alienage classifications related to self-government and the democratic process, (2) alienage classifications created by federal statute or presidential orders and (3) alienage classifications concerning undocumented aliens.Strict Scrutiny as the General RuleGraham v. RichardsonThe Court used strict scrutiny in declaring unconstitutional a Pennsylvania law that made noncitizens ineligible to receive public assistance and an Arizona law that limited receipt of benefits to those who are citizens or had resided in the state for at least 15 years. Note that a State’s desire to preserve limited welfare benefits for its own citizens is inadequate to justify the discrimination against aliens. The Court also stated that state laws which restrict the eligibility of aliens for welfare benefits conflicts with federal immigration policy (Takahashi v. Fish and Game Commission).Sugarman v. DougallThe Court applied Graham and declared unconstitutional a New York law that prevented aliens from holding civil service jobs. The Court said that excluding aliens in positions that have little, if any, relation to a State’s legitimate interest, cannot withstand scrutiny under the 14th Amendment. In re GriffithsThe Court, also applying Graham, invalidating, as violating equal protection, a state law that excluded aliens from being licensed as attorneys. The Court reaffirmed strict scrutiny for discrimination against aliens and held that is was impermissible for states to require citizenship as a condition for practicing law.Note: typically the Court holds that when the discriminatory nature of the law is directed at aliens and only aliens are harmed, it is unconstitutional.Alienage Classifications Related to Self-Government and the Democratic ProcessOnly rational basis review is used for alienage classifications relation to self-government and the democratic process. The Court has declared that a state may deny aliens the right to vote or hold political office or serve on juries.Foley v. ConnelieThe Court used the rational basis test to uphold a state law that required citizenship in order for a person to be a police officer. The Court emphasized that police officers are integral to self-government; they enforce the laws that are the product of the democratic process.Ambach v. NorwichThe Court followed Foley and upheld a state law that required citizenship for a person to be an elementary or secondary school teacher. The Court explained that a “teacher has an opportunity to influence the attitudes of students toward government, the political process, and a citizen’s social responsibilities.”Similarly, the Court has followed Foley and Ambach and held that a state may require citizenship in order for a person to be a probation officer; however, a state may not require citizenship in order for a person to be a notary public. A probation officer serves as both a law enforcement officer and a teacher in the sense that they educate those they supervise. A notary public, however, does not perform responsibilities that go to the heart of representative government.Congressionally Approved DiscriminationAnother exception to the usual rule of strict scrutiny for alienage classifications is where the discrimination is a result of a federal law. The Court has ruled that the federal government’s plenary power to control immigration requires judicial deference and that therefore only rational basis review is used if Congress has created the alienage classification or if it is the result of a presidential order.As an example, the Court upheld a federal statute that denied Medicaid benefits to aliens unless they had been admitted for permanent residence and resided for at least 5 years in the United States.The Court has drawn a distinction between alienage classifications imposed by the federal government and those created by state and local governments. Strict scrutiny is used for the latter, but the Court said that the federal laws are upheld if they are not “wholly irrational” and served the “legitimate” interests of the federal government (i.e., preserving the fiscal integrity of the Medicaid program).Likewise, the Court has distinguished between decisions by Congress or the President and by federal administrative agencies; rational basis review is used only for the former. The Court invalidated a federal civil service regulation denying employment to aliens because the Civil Service Commission that adopted the regulation has no involvement in making decisions concerning immigration or foreign policy.Undocumented Aliens and Equal ProtectionPlyler v. DoeThe Court declared unconstitutional a Texas law that provided a free public education for children of citizens and of documented aliens, but required that undocumented aliens pay for their schooling.The Court did not expressly articulate a level of scrutiny, but it did say that “undocumented aliens cannot be treated as a suspect class because their presence in this country in violation of federal law is not a constitutional irrelevancy. Nor is education a fundamental right.”It appears that the Court was using intermediate scrutiny in evaluating the discrimination against undocumented alien children with regard to education because the state’s claim of a desire to reserve benefits for its own citizens likely would meet a rational basis test.This is “intermediate scrutiny-ish,” and is somewhere in between rational basis and intermediate scrutiny.Discrimination against Nonmarital ChildrenIntermediate Scrutiny Is UsedIt is not clearly established that intermediate scrutiny is applied in evaluating laws that discriminate against nonmarital children, that is, children whose parents were not married. As with other classifications that receive heightened scrutiny, there is a long history of discrimination, and it is immutable in the sense that there is nothing the individual can do to change his or her status.Illegitimacy is different from race, which receives strict scrutiny, or gender, which receives intermediate scrutiny, in that “illegitimacy does not carry an obvious badge.” Additionally, “the discrimination against illegitimates has never approached the severity or pervasiveness of the historic legal and political discrimination against women and Negroes.”In applying intermediate scrutiny in this area, three principles emerge:Laws that provide a benefit to all marital children, but no nonmarital children, always are declared 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 scrutiny.Laws that create statutes of limitations for the time period for evaluating paternity must provide enough time for those with an interest in the child to present his or her rights and must be substantially related to the state’s interest in preventing false claims.Laws Denying Benefits to All Nonmarital ChildrenThe Court consistently has invalidated laws that deny a benefit to all nonmarital children that is accorded to all marital children.In New Jersey Welfare Rights Organization v. Cahill, the Court ruled unconstitutional a state law that discriminated against nonmarital children in receiving public assistance. Allowing marital children to receive benefits, but no nonmarital children, violated equal protection.Laws That Provide a Benefit to Some Nonmarital ChildrenNo similar bright-line rule exists when the law provides a benefit to some nonmarital children that it denies to other nonmarital children. In other words, rather than discriminating between marital and nonmarital children, these laws distinguish among nonmarital children. Such statutes are subjected to intermediate scrutiny and evaluated on a case-by-case basis with the courts determining whether there is an important interest served and whether the law is substantially related to that goal.The distinction among nonmarital children was constitutional because it did not preclude any child from receiving benefits and because it allowed the government to reduce its administrative burdens.Rule: If the law’s distinction is between marital and nonmarital children, the law is likely to be invalidated. But if the distinction is among nonmarital children, the Court will apply intermediate scrutiny.Statutes of Limitations for Establishing PaternityThe Court has been hostile to upholding short statutes of limitation for establishing paternity.A state law which required that paternity for an unmarried father had to be established within a year of the child’s birth was held unconstitutional. Similarly, the Court found that a two-year period and a 6-year period were unconstitutional.A two-step analysis is used to evaluate such limitations periods:The period must be sufficiently long in duration to present a reasonable opportunity for those with an interest in such children to assert claims on their behalf; andAny time limitation placed on that opportunity must be substantially related to the State’s interest in avoiding the litigation of stale or fraudulent claims.Note: In light of this two-part analysis, the Court has never upheld any restrictive statutes of limitations for establishing paternity – nor is it possible to imagine why the state would need such a restriction.Other Types of Discrimination: Only Rational Basis ReviewAll laws which create distinctions are subjected only to rational basis review, unless the discrimination was with regard to race, national origin, gender, alienage, or legitimacy. Thus far, these are the only types of discrimination for which the Court has approved either intermediate or strict scrutiny.The Court has ruled that only rational basis review should be used for discrimination based on age, disability, and wealth.Almost all of the federal courts to consider the issue have held that rational basis review should be used for discrimination based on sexual orientation.Age ClassificationsThe Court has expressly declared that only rational basis review should be used under equal protection analysis for age discrimination. Massachusetts Board of Retirement v. MurgiaThe Court upheld a state law that required police officers to retire at age 50.The Court said that old age is not a discrete and insular group in need of extra protection, but it marks a stage that everyone will reach.Vance v. BradleyThe Court upheld a federal law that mandated retirement at age 60 for participants in the Foreign Service Retirement System.The Court used the rational basis test and said that it upheld the law because the challenges failed “to demonstrate that Congress has no reasonable basis for believing that conditions overseas generally are more demanding than conditions in the United States and that at age 60 or before many people persons begin something of a decline in mental and physical reliability.”Discrimination Based on DisabilityThe Court also has ruled that only rational basis review should be used for discrimination based on disability. However, in City of Cleburne, Texas v. Cleburne Living Center, Inc., the Court used the rational basis test to declare unconstitutional a city ordinance that required a special permit for the operation of a group home for the mentally disabled.It can be argued that the Court’s review was more rigorous than usual for rational basis analysis. Under traditional basis review significant under-inclusiveness is tolerated and the government may proceed one step at a time.Note: Although disability classifications receive only rational basis review under the equal protection clause, a federal statute broadly prohibits such discrimination: the Americans with Disabilities Act.Wealth DistributionThe Court has clearly held that only rational basis review should be used for wealth classifications. In Dandridge v. Williams, the Court upheld a state law that put a cap on welfare benefits to families regardless of their size: children in larger families would receive less per person than those in smaller families. The Court accepted the state’s interest in allocating scarce public benefits as sufficient to justify the law.Discrimination Based on Sexual OrientationThe Court has not yet ruled as to whether discrimination based on sexual orientation warrants the application of intermediate or strict scrutiny.First Amendment: Freedom of ExpressionFree Speech MethodologyThe Distinction between Content-Based and Content-Neutral LawsThe Court has declared that the very core of the First Amendment is that the government cannot regulate speech based on its content. “Above all else, the First Amendment means the government has no power to restrict expression because of its message, its ideas, its subject matter or its content.”Content-based regulations are presumptively invalid. The general rule is:Content-based restrictions on speech must meet strict scrutinyContent-neutral regulation need only meet intermediate scrutiny.The fear of allowing content-based regulation is that the government will target particular messages and attempt to control thoughts on a topic by regulating speech. The government could try to control dissent and advance its own interests by stopping speech that expresses criticism of government policy, while allowing praise. A subject matter restriction on speech can accomplish the same goal.How is it determined whether a law is content-based?The requirement that the government be content-neutral in its regulation of speech means that the law must be both 1) viewpoint neutral and 2) subject matter neutral. Viewpoint neutral means that the government cannot regulate speech based on the ideology of the messageSubject matter neutral means that the government cannot regulate speech based on the topic of the speechView point Boos v. BerryThe Court declared unconstitutional a D.C. ordinance that prohibited the display of signs critical of a foreign government within 500 feet of that government’s embassy. The law, in its very terms, drew a distinction among speech based on the view point expressed.The law restricted speech that is likely to be embarrassing to a foreign government, but allows that which is supportive.Subject matter neutralU.S. v. Playboy Entertainment GroupThe Court found that a law which regulated only sexual speech was a subject matter restriction and had to meet strict scrutiny. A provision of the Act prohibited “signal bleeding” of sexual images; signal bleeding occurs when people receive images from cable stations to which they do not subscribe.The law is content based because it applies only to channels primarily dedicated to sexually explicit adult programming or other programming that is indecent. That law is unconcerned with other channels, focusing only on the content of the speech and its impact on listeners.Ashcroft v. American Civil Liberties UnionThe Court struck down a federal law which regulated sexually oriented commercial websites. The law required that such websites do age verification and provided several ways in which they could do so.The law was a content based restriction of speech, applying only to sexual speech. As a possible less restrictive alternative, filtering devices could be installed on individual computers.Republican Party of Minnesota v. WhiteThe Court struck down a law which prohibited candidates for elected judicial offices from making statements about disputed legal or political issues.The law was content-based as it prohibited speech on some issues, but allowed it on others.A law regulating speech is content-neutral if it applies to all speech regardless of the message.Turner Broadcasting v. Federal Communication CommissionThe Court found a federal law requiring cable companies to carry local broadcast stations was content-neutral because they were required to include all stations whatever their programming.A facial content-based restriction will be deemed content-neutral if it is motivated by a permissible content-neutral purpose.Renton v. Playtime TheatersThe Court upheld a zoning ordinance that prohibited adult motion pictures from locating within 1,000 feet of a residential zone, church, park or school.The ordinance was clearly content-based in its terms: it’s applied only to theaters that showed films with sexually explicit content.The Court treated the law as content-neutral because it said the law was motivated by a desire to control the secondary effects of adult movie theaters (e.g., crime) and not to restrict speech.A content-neutral law will be assessed for as to whether it’s a reasonable time, place and manner restriction (content-neutral, substantial government interest, and reasonable alternative avenues of communication). Here, the substantial government was upheld based on Young v. American Mini Theatres’ interest “in attempting to preserve the quality of urban life.”Renton makes the test of whether a law is content-based or content-neutral not its terms but, rather, its justification. A law that is justified in content-neutral terms is deemed content-neutral even if it is content-based on its face.Clarifying the Renton approachBoos v. BerrySee facts above. The government argued that the restriction of speech critical of foreign governments near their embassies was justified based on an international law obligation to shield diplomats from speech that offends their dignity. The Court, in distinguishing Renton, said the ordinance restricting speech near embassies was justified only by reference to the content of the speech.City of Cincinnati v. Discovery NetworkThe Court declared unconstitutional a prohibition on the use of newsracks on public property for the distribution of commercial handbills. The city argued that the ordinance was justified by concern over the secondary effects of such newsracks with regard to safety and aesthetics.The regulation was content based because whether any newsrack falls within the ban is determined by the content of the publication resting inside that newsrack.The Court distinguished Renton by saying that in contrast to the speech at issue in Renton, there are no secondary effects attributable to newsracks containing commercial handbills that distinguish them from the newsracks Cincinnati permits to remain on its sidewalks.Hill v. ColoradoThe Court upheld a law that prohibits approaching without consent within 8 feet of a person, who is within 100 feet of a health care facility, for purposes of oral protest, education, or counseling.The law was facially content-neutral because it did not permit some protests, education, or counseling based on content, it banned it all. However, it was content-based as its effect was to stop antiabortion speech. It was content-neutral because it was facially neutral and because it was motivated by the desire to protect those entering health care facilities.It appears that a content-based restriction on the face of the law will be treated as content-neutral if it is motivated by a desire to prevent adverse secondary effects of the speech. A law that is facially content-neutral can be treated as content-based if its purpose and/or effects are content-based.When the government must make content-based choicesNational Endowment of the Arts v. FinleyThe Court upheld a federal restriction on the funding of artists which gives the NEA substantial discretion in awarding funds. It recently added “general standards of decency and respect” to the factors to be taken into consideration. The Court stated the law didn’t require values but they were permissible as factors. The take-away is that when the government is giving subsidies, imprecise criteria are permitted, even if they would not be tolerated in a regulatory scheme. The Court declared the act in National Endowment to be viewpoint neutral. This is because when giving subsidies, the federal government must make decisions on where to spend a limited budget.Vagueness and OverbreadthVaguenessA law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is permitted. The void-for-vagueness doctrine requires that a statute define the criminal offense with sufficient clarity that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.“The standards of permissible statutory vagueness are strict in the area of free expression because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.”There is no litmus test for evaluating when a law is too vague. A greater precision is required when laws regulate speech, and statutes will be invalidated if a judge concludes that they provide inadequate notice as to what speech is prohibited and what is allowed.Examples: An antigang law that required gang members to disperse is ordered to do so by a police officer was declared unconstitutional because the statute was based on whether the police believed the group was loitering (which was defined as “being in a place for no apparent purpose”). This is vague because the behavior needed to avoid arrest was uncertain; could the group move a block away or go around the block and come back?A law that prohibits treating a flag “contemptuously” is unconstitutionally vague as it fails to draw reasonably clear lines between the kinds of nonceremonial treatment that are criminal and those that are not.A law prohibiting employment of any “subversive persons” is unconstitutionally vague as the language of the statute gave little guidance as to what speech and associational activities were prohibited.OverbreadthA law is unconstitutionally overbroad, if it regulates substantially more speech than the Constitution allows to be regulated. Standing significance: A person to whom the law constitutionally can be applied can argue that it would be unconstitutional as applied to others.There are two major aspects to the overbreadth doctrine:Substantial overbreadthA law must be substantially overbroad; that is, it must restrict significantly more speech than the Constitution allows to be controlled.This requirement applies in all cases, whether the law regulates conduct that communicates or “pure speech.”Substantial overbreadth occurs when there is a showing of a significant number of situations where a law could be applied to prohibit constitutionally protected speech. It may also be overbroad by demonstrating great harm to particularly important speech.Example – substantial overbreadth:In City of Houston v. Hill, the Court declared unconstitutional an ordinance that made it unlawful to interrupt police offers in the performance of their duties. The ordinance criminalizes a substantial amount of constitutionally protected free speech and accords officers unconstitutional discretion in enforcement.Example – permissible overbreadth:In New York v. Ferber, the Court upheld a state law prohibiting child pornography although the statute could be applied to material with serious literary, scientific, or educational value. The law is not overbroad as those applications of the statute are only a tiny fraction of the materials within the statute’s reach and could be dealt with on a case-by-case basis. Exception to standingA person to whom the law constitutionally may be applied can argue that it would be unconstitutional as applied to others.Overbreadth is an exception to the general standing principle which requires people to assert only their own rights. The doctrine gives individuals standing to raise the claims of others not before the Court. Individuals who would otherwise be constitutionally punished may be allowed to go free.The concern is that overbroad laws will chill significant constitutionally protected speech and that individuals to whom the law is unconstitutional may refrain from expression rather than bring a challenge to the statute.The Court may avoid using the overbreadth doctrine by attempting to sever the unconstitutional overbroad part of the law from the remainder of the statute.Schad v. Borough of Mt. EmphraimA city’s ordinance prohibiting all live entertainment was challenged by an adult bookstore that had live nude dancers.The law prohibited much more speech than just nude dancing: It outlawed all live entertainment – all plays, concerts, athletic events. The nude dancing establishment was allowed to challenge the law, in part, because of how it regulated the speech of others not before the Court.Coates v. Cincinnati (both vague and overbroad)The Court declared unconstitutional an ordinance that made it a criminal offense for three or more persons to assemble on any of the sidewalks and there conduct themselves in a manner annoying to persons passing by. Vagueness: The law prohibits conduct which is annoying to others so assemblers would have to guess what conduct was annoying.Overbroad: The law is prohibits political demonstrations (constitutionally protected) if spectators found them annoying.Types of Unprotected and Less Protected SpeechIncitement of Illegal ActivityThis issue is attempting to determine how society should balance its need for social order against its desire to protect freedom of speech. The main question: When, if at all, may speech that advocates criminal activity or the overthrow of the government be stopped to promote order and security?Advocacy of law violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on.There is a strong presumption in favor of protecting speech unless there is a substantial likelihood of imminent harm.The “Clear and Present Danger” TestContextThere was substantial criticism of the American involvement in WWI and significant opposition to the draft. In response, Congress enacted the Espionage Act of 1917 which made it a crime during war time to make or convey false reports with intent to interfere with military success or promote the success of its enemies as well as obstructing the recruitment or enlistment of the armed forces.Also, the Sedition Act of 1918 prohibited individuals from saying anything with the intent to utter, print, write, or publish any disloyal, profane…language intended to cause contempt of the U.S. government. ApplicationRequirements:There must be (1) a likelihood of (2) an imminent and (3) significant harm.Look to Brandenburg Test.The Reasonableness ApproachCriminal syndicalism laws – statues that made it a crime to advocate the overthrow of the US government by force or violence.The Court decided cases concerning such matters using a reasonableness approach; it upheld the laws and their applications so long as the government’s law and prosecution were reasonable.The majority in these cases used an approach that now would be termed rational basis review. None applied the clear and present danger test or anything akin to heightened scrutiny. Therefore, this test is inconsistent with the now firmly established heightened scrutiny for fundamental rights.The Risk Formula ApproachThis approach, illustrated in Dennis v. United States, is no longer in use by the Courts as it was replaced by the Brandenburg Test.The Brandenburg TestIn the mid-1960’s the Court appeared to be much more protective of speech. Bond v. FloydThe Court held that the Georgia legislature could not refuse to seat a man because of his support for a statement strongly critical of the Vietnam War and the draft. The Court stated the statements were advocacy of ideas protected by the 1st Amendment.Watts v. United States (1969)The Court reversed a conviction for violating the law that made it a crime to “knowingly and willfully…threaten to take the life of or to inflict bodily harm upon the President.”The individual was convicted for saying: “If they ever make me carry a rifle the first man I want to get in my sights L.B.J. They are not going to make me kill my black brothers.” The Court said the statement was a “political hyperbole” and not a real threat and therefore protected by the 1st Amendment.The key case:Brandenburg v. OhioThe Court overturned a conviction of a leader of the KKK who was arrested under a criminal syndicalism law. Evidence of his incitement was a film of the events at a Klan rally, which included racist and anti-Semitic speech, and several firearms.Requirements of the Brandenburg TestA conviction for incitement is constitutional only if:There is an imminent harm;A likelihood of producing illegal action; andAn intent to cause imminent illegalityThe intent requirement is new to the Brandenburg Test.Cases Applying the Brandenburg TestHess v. IndianaThe Court overturned a conviction of disorderly conduct for declaring, “We’ll take the fucking street later,” after the police had cleared a demonstration from the street. The Court said that the speech was protected by the 1st Amendment because it amounted to nothing more than advocacy of illegal action at some indefinite future time. This was insufficient to meet the Brandenburg Test because there was no evidence that the words were intended to produce, and likely to produce, imminent disorder.NAACP v. Claiborne Hardware Co.The Court overturned a judgment against the NAACP for a boycott of white-owned businesses that it alleged engaged in racial discrimination.The conviction was based on the statement, “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.”This was held to be protected because in the passionate atmosphere in which the speeches were delivered, they might have been understood as inviting an unlawful form of discipline or, at least, intending to create a fear of violence whether or not improper discipline was specifically intended…the Court has made clear that mere advocacy of the use of force or violence does not remove the speech from the protection of the 1st Amendment.Brandenburg, Hess, and NAACP indicate that the Court has redefined the test for incitement in much more speech protective terms. Under this law, an individual can be convicted for incitement only it is proved that there was a likelihood of imminent illegal conduct and if the speech was directed at causing imminent illegal conduct.Note: the circumstances of the situation may play into how the Court rules on the government’s power to prohibit speech.“True” ThreatsThe Court has held that there is no 1st Amendment protection for a “true” threat. A true threat encompasses those statements when the speaker means to communicate a serious intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Fighting WordsThe main question here is: When may speech be punished because of the risk that it might provoke an audience into using illegal force against the speaker?Fighting words are defined as speech that is directed at another and likely to provoke a violent response; “[words] by which their very utterance inflicts or tends to incite an immediate breach of the peace.” (Chaplinsky)Fighting words are unprotected by the First Amendment.Fighting words as unprotected speechChaplinsky v. New Hampshire (1942)The Court expressly held that fighting words are unprotected by the First Amendment.The Court upheld the conviction of Chaplinsky for distributing literature for his religion and giving a speech denouncing other religions. He called a listener a “goddamn racketeer,” and a “damned fascist…”Chaplinsky recognizes two situations where speech constitutes fighting words:Where it is likely to cause a violent response against the speakerThe issue here is whether the appropriate response is to punish the speaker or the person who actually resorts to violence.Where it is an insult likely to inflict immediate emotional harmThe issue here is whether speech should be punished it is upsetting or deeply offensive to an audience.Refusal to uphold fighting words convictionsNote: Fighting words remain a category of speech unprotected by the First Amendment but in the more than 50 years since Chaplinsky, the Court has never again upheld a fighting words conviction.The Court has used three techniques in overturning these convictions: (1) narrowing the scope of the fighting words doctrine, (2) finding the laws prohibiting fighting words to be unconstitutionally vague or overbroad, and (3) finding the laws that prohibit some fighting words – such as expression of hate based on race or gender – to be impermissible content-based restrictions of speech.The cumulative impact of these decisions it to make it unlikely that a fighting words law could survive.Narrowing the fighting words doctrineCohen v. CaliforniaThe Court held that unprotected fighting words occur only if the speech is directed to a specific person and likely to provoke a violent response.A conviction of a man wearing a jacket with the words “Fuck the Draft,” on it while in a courtroom was overturned because no individual actually or likely to be present could reasonably have regarded the words on the appellant’s jacket as a direct personal insult.Texas v. JohnsonThe Court held that flag burning was a form of speech protected by the First Amendment. The Court stated that flag destruction was not likely to provoke a violent response as it was not directed at a particular person.Fighting words laws invalidated as vague and overbroadMost cases since Chaplinsky have been overturned on the basis of the law being unconstitutionally vague and overbroad.Goading v. WilsonThe Court overturned a law that prohibited any person to “use or of another, and in [one’s] presence opprobrious words or abusive language, tending to cause a breach of the peace.”The Court found the law overbroad and emphasized the failure of the state courts to narrowly construe the law to prohibit only unprotected fighting words.Rosenfeld v. New JerseyThe Court overturned a conviction for using the word “mother-fucker” repeatedly at a school board meeting to describe teachers and board members.Lewis v. City of New Orleans The Court overturned a conviction of a woman for calling the police arresting her son, “god-damn-mother-fucker police.”Brown v. OklahomaThe Court overturned a conviction of an individual for giving speech which referred to police officers as, “mother-fucking fascist pig cops” and spoke of one particular officer as a “black mother-fucking pig.”In each of these instances, the Court reversed the convictions, making it clear that speech is protected even if it is uttered in anger, filled with profanities, and likely to anger the audience.City of Houston v. HillThe Court overturned a city ordinance that made it a crime for a person to “oppose, molest, abuse or interrupt any policeman in the execution of his duty.”The Court stated that the ordinance’s plain language is admittedly violated scores of times daily…It is not limited to fighting words nor even to obscene or opprobrious language, but prohibits speech that in any manner…interrupts an officer.Fighting words laws invalidated as content-basedA very narrow fighting words law likely will be declared unconstitutional as impermissibly drawing content-based distinctions as to what speech is prohibited and what is allowed.R.A.V. v. City of St. PaulThe Court overturned an ordinance which prohibited placing on public or private property symbols, objections, characterizations, or graffiti, “including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender.”The Court stated that even within categories of unprotected speech, the government is limited in its ability to draw content-based distinctions.The Court held the law drew a distinction among expressions of hate: It prohibited hate speech based on race, religion, or gender but not based on political affiliation or sexual orientation and therefore strict scrutiny applied.The Court held that the state asserted a compelling interest in protecting rights, including the right to live in peace, of those historically subjected to discrimination. However, the content based restriction was not necessary to achieve that interest.Exceptions to the prohibition of content-based lawsWhen the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger or idea or viewpoint discrimination exists.Apparent content-based distinctions would be permissible if they were designed to prevent secondary effects so that “the regulation is justified without reference to the content of the speech.”Renton v. Playtime Theaters (above)Content-based distinctions within a category of unprotected speech will have to meet strict scrutiny, subject to two exceptions (above).R.A.V. means that a fighting words law will be upheld only if it does not draw content-based distinctions among types of speech, such as by prohibiting fighting words based on race, but not based on political affiliation.Hostile AudienceApplications of the Clear and Present Danger TestThe Supreme Court applied the clear and present danger test in dealing with the issue of when the government may punish individuals for speech that provokes a hostile audience reaction. However, the Court has since appeared to follow the approach looking to control the audience first (Fiener dissent).Terminiello v. ChicagoThe Court overturned a conviction for disturbing the peace because of a speech that Terminiello gave in which he attacked his opponents as “slimy scum,” “snakes,” and “bedbugs.” Disturbances did break out.The Court declared that a function of free speech is to invite dispute; unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest.Feiner v. New YorkThe Court upheld the conviction for a speech that Feiner gave that sharply criticized the president the local political officials stating the government may prevent or punish speech that poses a clear and present danger.The dissent said that the appropriate response of the police should have been to control the crowd, and only if was impossible and a threat to breach of the peace imminent could the police arrest the speaker.Audience Control ApproachSince Feiner, the Court has followed the approach in Fiener’s dissent, allowing the speaker to continue unless there is an imminent breach of the peace and it is unable to control the crowd.Edwards v. South CarolinaThe Court overturned a conviction for civil rights protestors who had staged a march to the South Carolina capitol. A significant hostile crowd gathered, although there was no violence or threats. The speakers were arrested after they ignored a police order to disperse. The Court emphasized that “police protection at the scene was at all times sufficient to meet any foreseeable disorder.” They distinguished Feiner based on the absence of violence or threats.Cox v. LouisianaThe Court overturned a conviction for giving a speech objecting to the racial segregation of lunch counters and urging a sit-in and emphasized the ability of the police to control the crowd. The students were not violent and threatened no violence and no evidence any member of the white group threatened violence.Gregory v. City of ChicagoThe Court overturned convictions for disturbing the peace for a group of civil rights demonstrators who had been arrested when an angry group threatened the marchers. The civil rights protestors were marching to the mayor’s house when some members of an opposing group reacted angrily, made threats against the demonstrators, and threw rocks against them. The Court held the law did not limit convictions to instances where there was a threat of imminent violence, the police have made all reasonable efforts to protect the demonstrators, and the police have requested that the demonstration be stopped.From the above cases, 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 peace imminent.Racist and Hate SpeechGroup libelThe Court held that group libel is not protected by the First Amendment. An unwillingness to protect hate speech against a group is found in the ability of Nazis to stage a march in the predominantly Jewish suburb of Skokie, Illinois.Nationalist Socialist Party v. Village of SkokieThe leaders of the Socialist part planned a peaceful demonstration in Skokie, where many survivors of Nazi concentration camps lived. The march was allowed to proceed (however, after winning in the courts, the party didn’t march). Expression of hate is protected speech and the government may not outlaw symbols of hate such as swastikas. Moreover, the government cannot suppress a speaker because of the reaction of the audience. Skokie was not allowed to prevent the Nazis from marching because their demonstration would deeply offend and upset holocaust survivors or even provoke a violent response (follows Fiener dissent).Hate speech as fighting wordsAnother approach the government may take to regulate racist hate speech is by banning it as a form of fighting words. Many colleges and universities have based their hate speech codes around the fighting words exception [however, no fighting words conviction since 1942].Most laws since 1942 have been found unconstitutional on vagueness or overbreadth grounds.The key: The Court’s decision in R.A.V. makes it difficult for hate speech codes to survive; if they prohibit only some forms of hate they will be invalidated as content-based but if they are more expansive, they likely will fail on vagueness and overbreadth grounds.Colleges and universities are unlikely to be allowed to prohibit expressions of hate or racism on campus. However, they likely will be able to prohibit harassment directed as particular individuals, just as they may prohibit all forms of directed harassment.Cross burningVirginia v. BlackThe Court held that governments may prohibit cross burning done with the intent to intimidate, but that intent must be proven in the particular case. Two cases were decided: one involving Klan members who were convicted for burning a cross at a rally on an isolated farm; the other involved two men convicted for burning a cross on the lawn of a home recently purchased by African-Americans.The Court stated the government cannot prohibit all cross burning – it is a symbolic expression and the government cannot ban such just because they are powerful and offensive.The Court also held that cross burning done with the intent to threaten or intimidate constitutes a true threat and is not protected by the First Amendment. The Court concluded the Klan members could not be punished because of the absence of on-lookers and that the cross burning on the lawn was a true threat.Sexually Oriented SpeechObscenityObscenity as a category of unprotected speechIn Roth v. United States, the Court held that obscenity is a category of speech unprotected by the First Amendment. There, the Court observed that “sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to the prurient interest. The Court went on to define prurient as “material having a tendency to excite lustful thoughts.”Paris Adult Theater I v. SlatonThe Court stated “we categorically disapprove the theory….that obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only.”Should obscenity be a category of unprotected speech?The argument against the definition of obscenity in Roth focuses on controlling thoughts – something that should be beyond the reach of the government.Arguments for government regulationA community should be able to determine its moral environment. This is the justification accepted in Paris Adult Theater I v. Slaton. Obscene material causes antisocial behavior, particularly violence against women.Obscene material should be regarded as a sex aid, not as speech therefore it would not be included under the First AmendmentArguments for First Amendment protectionThe government should not be able to determine what is moral and suppress speech that does not advance that conception.Kingsley Int’l v. RegentsThe Court held that a state could not prohibit a film because it shows adultery and thus “portrays acts of sexual immorality as desirable, acceptable or proper patterns of behavior.”The Court held the state cannot prohibition the exhibition of a film because that picture advocates an idea – the First Amendment’s basic guarantee is of freedom to advocate ideas.The studies showing a correlation between antisocial behavior and obscenity are flawed and biasIn response to the call for obscenity as a sex aid, it is argued that the response to obscenity is similar to reactions of other forms of speech.Defining obscenityIn Miller v. California, the Court reaffirmed that obscene material is not protected by the First Amendment. They also set forth three requirements that must be met in order for material to be deemed obscene.RequirementsWhether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interestCommunity standard – jury’s lay opinionWhether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; andWritten into the state lawWhether the work, taken as a whole, lacks serious literary, artistic, political or scientific valueNational standard – expert testimonyPrurient interest of the average personPrurient means that which excites lustful or lascivious thoughts – however, it is unclear what this means.Brockett v. Spokane Arcades, Inc.The Court declared unconstitutional a Washington obscenity law because it failed to distinguish between a “normal” interest sex and a “shameful” or “morbid” interest.The Court held that only the latter was the prurient interest – however, where to draw the distinction was left unclear.Under Miller, “prurient interest” is determined by a community standard.Patently offensiveIn order for material to be obscene it must be patently offensive under the law prohibiting obscenity. The Court in Miller gave an example of this and said that a law could define that as:Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated;Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.Ward v. IllinoisThe Court held that the law did not need to provide an “exhaustive list of the sexual conduct” that would be patently offensive.It is sufficient that a law include the examples included in Miller.Jenkins v. GeorgiaThe Court ruled that there are limits on what a state may deem to be patently offensive by concluding that the film Carnal Knowledge, a mainstream movie, could not be found obscene because there is no exhibition of the actors’ genitals, lewd or otherwise.Scenes of nudity but nudity alone are not enough to make material legally obscene under the Miller standards.Lacking redeeming artistic, literary, political or scientific valuePope v. IllinoisThe Court held the social value is to be determined by a national standard – how the work would be appraised across the country and not a community standard.Child PornographyNew York v. FerberThe Court held that the government may prohibit exhibition, sale, or distribution of child pornography even if it does not meet the test for obscenity.A New York law prohibited any person knowingly to produce, promote or sell any material depicting “sexual performance” by a child under age 16. The statute defined “sexual performance” as any performance that includes “actual or simulated sexual intercourse…”The Court held that the state’s interest in safeguarding the physical and psychological well-being of a minor is compelling.The test for child pornography is separate from the obscenity standard enunciated in Miller…the Miller formulation is adjusted in the following way: A trier of fact need not find that that material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole.Note: (1) the Court did not attempt to define child pornography; and (2) the question of whether child pornography can be banned if it has serious socially redeeming value.Ashcroft v. Free Speech CoalitionThe Court has since been clear that in order to be considered child pornography, the material must use children in its production. The Court declared unconstitutional an act which prohibits child pornography whether it is based on actual pictures of children or computer generated images – the act banned material that included adults who are child-like in appearance, as well as computer generated images.The Court explained that the government’s interest in banning child pornography is in safeguarding children – prohibiting generated images or child-like appearance does not further that purpose.Ashcroft is an important clarification of Ferber. The government cannot ban child pornography based on its condemnation of the material. Rather, the government’s interest is limited to protecting children from being used in the making of the material.Protected, but Low Value, Sexual SpeechZoning ordinancesThe Court also has indicated that there is a category of sexual speech that does not meet the test for obscenity and thus is protected by the First Amendment, but is deemed to be low value speech and thus the government has latitude to regulate such expression.Young v. American Mini-Theaters, Inc.The Court upheld a city’s ordinance that limited the number of adult theaters that could be on any block and that prevented such enterprises from being in residential areas.The Court stated that the sexually explicit material should be regarded as “low value” speech and thus is more susceptible to government regulation and therefore the state may legitimately use the content of these materials as the basis for placing such films in a different classification from other motion pictures.The Court in City of Renton v. Playtime Theaters, Inc. relied on Young to uphold the zoning ordinance that excluded adult motion picture theaters from what resulted in 95% of the land in the city.Young and Renton thus establish broad power for cities to use zoning ordinances to regulate the location of adult entertainment establishments. However, they also raise the question of how far a city can go in its zoning. 95% of the city was upheld in Renton; what if it was 98 or 99%? The Court doesn’t indicate the point at which such restrictions are effective preclusions of speech protected by the First Amendment.Nude dancingSchad v. Borough of Mt. Ephriam (1981)The Court indicated that nude dancing was protected by the First Amendment. The Court declared unconstitutionally overbroad a city’s ordinance that prohibited all live entertainment and was used to close down a nude dancing establishment.The Court concluded that even if nude dancing were unprotected by speech, the ordinance was substantially overbroad in that it prohibited all concerts, all plays, all forms of live entertainment.City of Newport v. Iacobucci (1986)The Court upheld a city ordinance banning nude dancing in bars. The Court accepted the city’s rationale that “nude dancing establishments serving liquor was injurious to the citizens’ of the city” and concluded that the power to regulate the sale of liquor outweighs protecting nude dancing.Barnes v. Glen Theatre, Inc. (1991)The Court held that the government may completely ban nude dancing. Specifically, the Court ruled that an Indiana statute prohibiting public nudity could be used to require that female dancers must wear pasties and a G-string.The Court stated the law served the goal of protecting societal order and morality.Should there be such a category of law value sexual speech?It must be asked what justifications are sufficient to warrant regulation of this speech. The opinions in Young, Renton and Barnes all focus on the need to regulate speech to stop secondary effects.The opinions don’t address what secondary effects warrant restriction of speech and how much proof there must be of these consequences. Note: This is a prime example of when to analogize and contrast with the cases listed about if a hypo concerns sexual speech.Although the Court hasn’t defined the content of this category, it has stated that nudity, alone, is not enough to place speech is this ernment Techniques for Controlling Obscenity and Child PornographyWhat can be prohibited?The Court has made it clear that the government can prohibit the sale, distribution, and exhibition of obscene materials even to willing recipients. In Paris Adult Theatre I v. Slaton, the Court said the states may make a morally neutral judgment that public exhibition of obscene material, or commerce of such, endangers the public welfare and may then regulate it.The government cannot prohibit or punish the private possession of obscene material; it may outlaw the private possession of child pornography.Stanley v. GeorgiaThe Court held that “mere private possession of obscene matter cannot constitutionally be made a crime. However, the Court has since been reluctant to extend Stanley.United States v. ReidelThe Court held that Stanley did not protect a right to receive obscene materials.Osborne v. OhioThe Court held that the government may prohibit and punish the private possession of child pornography. The Court emphasized that the government has an important interest in attempting to dry up the market for child pornography so as to protect children and may therefore punish even private possession.There is a tension here because Stanley states the government cannot prohibit what one reads in their home but Osborne states the government may prohibit child pornography is one’s home. If the government may prohibit the sale of obscene materials because of the harm it causes, shouldn’t that warrant the prohibiting of such material in private as well?Are prior restraints allowed?The Court has held that prior restraints of obscene materials are allowed. Prior restraints of obscene materials can take many forms. Classic forms of prior restraints such as court orders stopping speech and licensing can be used to control obscenity. Paris Adult Theater I v. Slaton permitted the use of injunctions to prevent the exhibition of obscene materials.In addition to court orders and licensing, there are other forms that prior restraints can take; if the government were to seize all copies of a publication or a film that would be a prior restraint. Marcus v. Search WarrantThe Court said that the government cannot seize allegedly obscene materials unless a prior judicial determination in an adversary hearing concluded the material is not protected.Andrews v. United StatesThe Court held that the government could seize and destroy the assets of businesses convicted of obscenity law violations.The Court said it was immaterial that material seized was books, magazines and film – the destruction occurred without any determination this material was obscene.Profanity and Sexually Oriented LanguageConstitutional protection for profane and indecent languageAlthough profanities and indecent language are not obscene, government often has tried to punish them. The Court has held that such language is generally not protected but there are notable exceptions.Cohen v. CaliforniaThe Court overturned a conviction for wearing a jacket in a courtroom reading: “Fuck the Draft.” They stated that government cannot forbid particular words without the risk of suppressing ideas in the process. The Court stated that there is no way to distinguish this from any other offensive word and that the state has no right to cleanse the public debate.Remember, this was not accepted as fighting words because it was not directed at a particular person. “The mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense.”Note: Under Cohen it would be extremely difficult for a person to complain of being a captive audience when outside the home.Exception: in schoolsBethel School District v. FraserThe Court held that the government constitutionally could punish a student for indecent speech. A short speech at a student assembly actually had no profanities but was filled with sexual innuendo.The Court justified this because such speech is “wholly inconsistent with the fundamental value of public school education.”Schools are responsible for inculcating civilized discourse in youth and may punish profane and indecent language.Exception: the broadcast mediaFCC v. PacificaThe Court upheld the ability of the FCC to prohibit and punish indecent language over television and radio. A comedian’s monologue repeatedly used profanity – “Filthy Words.”The Court held that the government could not prohibit all use of these words but said that it could ban them from being aired over the broadcast media because it is uniquely pervasive and intrusive into the home.The Court stated that warnings were insufficient because people might tune in during the middle of a broadcast. Regulation is allowed because broadcasting is uniquely accessible to children, even those too young to read.This allows the government to deny material to willing listeners and viewers in order to prevent offense to others. It says that the government can cleanse the broadcast media so that it is palatable for children.This rationale seems to mean that government could ban such language in newspapers or magazines delivered to the home; they too pervade the home and are accessible to children.Note: The Court has not been willing to extend Pacifica beyond the over-the-air – free – broadcast media. In cases involving telephones, cable television, and the Internet, the Court has largely rejected Pacifica and has struck down federal regulations of “indecent” speech.TelephonesThe Court has emphasized that the government could not ban speech over the telephone simply because it was indecent. The Court struck down a statute designed to eliminate the “dial-a-porn” industry in Sable Communications v. FCC. The Court stated that there was no captive audience.Cable televisionDenver Area v. FCCThis concerned three provisions of a federal law that regulated the broadcasting of “patently offensive” sexually oriented material in cable television.First provision: permitted the cable operator to prohibit the broadcasting of programming that depicts sexual activities in a patently offensive way; unconstitutional because it serves important and compelling reason to protect children from such material. The act permits but does not require the prohibition– law found not to be vague.Second provision, required sexual material to be segregated and available only upon request; unconstitutional as it imposed requirements on cable companies and greatly restricted access when less restrictive means were available: parents using filters. Third provision: permitted cable operators to prohibit sexually explicit material on public access channels; struck down because public access channels are public forums and the content-based restriction failed strict scrutiny (less restrictive means available) –distinguished public access channels from leased channels.The internetReno v. ACLUThe Court first considered the internet and invalidated a law which made it a crime to transmit obscene or indecent material over the internet in a way accessible to minors.Distinguishing Pacifica, the regulation of TV and radio was applied to a time when children might be listening, whereas Reno applies to all hours. Pacifica involved sanctions by a regulatory agency, Reno imposed criminal penalties.The vagueness of the Reno statute was a concern because it was content-based and imposed criminal penalties.The government has a compelling interest in protecting children from exposure to sexual material but cannot restrict speech available to adults – unconstitutional because of its overbreadth. The general undefined terms of ‘patently offensive’ and ‘indecent’ cover large amounts of nonpornographic material with educational or other value.Ashcroft v. ACLUThe Court held a statute requiring operators of commercial websites to restrict access by children to material the average person applying contemporary community standards would find designed to target minors’ interest would be unconstitutional as it was content-based – applying only to sexual content over the internet – and didn’t meet strict scrutiny.Note the same reasoning that parents could use filters was a less restrictive means of achieving the compelling interest of protecting children from sexual material. Furthermore, filters would be more effective as applying to emails not just the web.The Court’s preference for individual filters has been evident and made more so in US v. American Library Assoc. A law requiring libraries receiving federal funds to install filters to block sexually explicit material was upheld. The Court stressed libraries need not buy all materials or allow access to all materials on the internet. Commercial SpeechConstitutional protection for commercial speechCommercial speech went unprotected by the First Amendment until 1975 when the Court decided Bigelow v. Virginia. The Court said that speech is not stripped of protection merely because it appears as a commercial advertisement.Virginia State Board of Pharmacy v. VCCCThe Court declared unconstitutional a VA law that prohibited pharmacists from advertising the prices of prescription drugs.The Court expressly held that speech that does no more than propose a commercial transaction is protected by the First mercial speech may have relevance to the political process. The allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed.What is commercial speech?Four types of government regulations of commercial speechThose that outlaw advertising of illegal activities – not protected The prohibition of false and deceptive advertising – not protectedTrue advertising that inherently risks becoming false or deceptive – not protectedThe limiting of commercial advertising which achieves other goals – inconsistent pattern of decisions on such casesNo clear definition of commercial speechIn VA State Board of Pharmacy, the Court said that commercial speech was expression that proposes a commercial transaction. The issue arises as to what other speech, besides price advertising, should be regarded as commercial speech.In Central Hudson Gas & Electric, the Court said that commercial speech was expression related solely to the economic interests of the speaker and its audience.The Court has also held that informational pamphlets (brochures) discussing the product type in general or discussing that company’s product specifically are a form of commercial speech. However, the Court stated that the fact that pamphlets are advertisements alone, the reference to a specific product alone, or that the company has an economic motive in mailing them alone is not sufficient to turn the material into commercial speech. Instead, it is the combination of the three (Bolger v. Youngs Drug Products Corp.).Under the Bolger approach, commercial speech has three characteristics:It is an advertisement of some form;It refers to a specific product; andThe speaker has an economic motivation for the speechThe test for evaluating government regulations of commercial speech – Central Hudson testCentral Hudson Gas & Electric v. Public Service CommissionThe Court declared unconstitutional a ban on utility advertisements. The state interest was the need for conservation of fuels and because the utility had a monopoly and didn’t need to advertise.The Court stated the Constitution accords a lesser protection to commercial speech than to other constitutionally guaranteed expression.The Court articulated a four-part test for analyzing government regulation of commercial speech and found that the advertisements were truthful and not deceptive and the government had a substantial interest in discouraging energy consumption – and the prohibition advanced the state’s interest.The ban was unconstitutional because the state could achieve its goal of encouraging energy consumption through means less restrictive of speech.The Central Hudson TestThe test is very similar, if not identical to that of intermediate scrutiny. The government has the burden of proof to demonstrate that the test is met in order to justify a restriction on commercial speech.Is the advertising false or deceptive or of illegal activities, areas which are unprotected by the First Amendment?Is the government’s restriction justified by a substantial government interest?Does the law directly advance the government’s interest?Is the regulation narrowly tailored to achieve the government’s goal (Fox and Greater New Orleans)?Recently, the Court has used the Central Hudson test but said the test is whether the government regulation is narrowly tailored and substantially related to achieving an important government interest.Is least restrictive alternative analysis applicable?It appears that the Court has modified the fourth part of the test such that the government need not use the least restrictive alternative but the regulation must be narrowly tailored to achieve the government’s goal.The Court expressly rejected the least restrictive alternative test for commercial speech in Board of Trustees of the State University of NY v. Fox.Note: The Court in Fox also reaffirmed that overbreadth analysis is not used in analyzing government regulation of commercial speech.Greater New Orleans Broadcasting Assoc. v. United StatesThe Court expressly reaffirmed Fox and said the government regulation of commercial speech need not be the least restrictive alternative. The Court declared unconstitutional a ban of advertising by casinos.The government must demonstrate narrow tailoring of the challenged regulation to the asserted interest. This is a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served.The Court held the ban on advertising by casinos was not substantially related to the interest of decreasing gambling because of the many exceptions (e.g., advertising by Native Americans and state lotteries).Advertising of illegal activitiesAdvertising of illegality is not protected by the First Amendment. In Pittsburgh Press, the Court emphasized that discrimination in employment is not only commercial activity, it is illegal commercial activity.Pittsburgh Press concerned the use of “Jobs-Male Interest,” “Jobs-Female Interest,” and “Male-Female,” in help-wanted advertisements.False and deceptive advertisingFalse and deceptive advertisements are unprotected by the First Amendment. The Court frequently has declared only truthful commercial speech is constitutionally protected – however, they have never decided a First Amendment case concerning false and deceptive ads.Advertising that inherently risks deceptionEven true advertisements that inherently risk being deceptive are unprotected by the First Amendment.Restrictions on trade namesA state may prohibit trade names because of their inherent risk of deception – one professional could go out of business and a bad one could assume that name and fool the public.Attorney solicitation of prospective clientsThe government may not prohibit attorneys from engaging in truthful, nondeceptive advertising of their services. However, the government may prohibit attorney in-person solicitation of prospective clients for profit. Solicitations are protected by the First Amendment when the lawyer offers to represent the client without charge (on a contingency-fee basis is sufficient for protection as well).Solicitation by accountantsThe government may not prohibit in-person solicitation of clients by accountants for profit. The Court held there was not the inherent risk of persuasion one faces when dealing with a lawyer.Regulating commercial speech to achieve other goalsNumerous topics have been considered by the Court but the decisions have not formed a consistent pattern. Such topics include: traffic safety, alcohol products, gambling, tobacco advertising, contraceptives and abortion, and advertising by lawyers and other professionals.Note: the important thing here is to recognize when to apply the Central Hudson test and what the test is. The Court has been too inconsistent in this area to anything else.Conduct as SpeechThe Court has long protected conduct that communicates under the First Amendment. For example, the Court has declared unconstitutional a state law that prohibited the display of a “red flag,” and another that required school students salute the flag. In the latter, the Court found the state impermissibly compelled the expression and emphasized that saluting, or not saluting a flag, is a form of speech.Two main issues have arisen:When should conduct be analyzed under the First Amendment?What should be the test for analyzing whether conduct that communicates is protected by the First Amendment?When is conduct communicative?In Spence v. Washington, the Court considered the issue of when conduct should be regarded as communicative. The Court emphasized two factors:Is there an intent to convey a specific message?; andIs there a substantial likelihood that the message would be understood by those receiving it?Example: The Court held that wearing a black armband to protest the Vietnam War was speech protected by the First Amendment. Wearing an armband for the purpose of expressing certain views is the type of symbolic act that is within the First Amendment. There is little doubt the armband was worn to communicate a message and that those seeing it, in the context of the times, would understand it as a symbol of protest against the war.When may the government regulate conduct that communicates?The O’Brien testUnited States v. O’BrienThe Court upheld a federal law that prohibited the intentional destruction of draft registration certificates.The Court identified several justifications, unrelated to suppression of speech, for the prohibition of draft card destruction.The motive of the law was irrelevant, as long as there are justifications unrelated to suppression of the message, that’s sufficient.The government may regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no more than necessary to achieve the government’s purpose. The test is very similar, if not identical, to intermediate scrutiny.Flag desecrationIt has been established that flag burning is a constitutionally protected form of speech. The Court did not apply the O’Brien test in Texas v. Johnson or United States v. Eichman as it concluded that the restriction on speech was directly related to the message.Spence v. WashingtonThe Court found that the First Amendment protected the right of an individual to tape a peace symbol to a flag. The Court emphasized that the protestor’s message was direct, likely to be understood, and within the contours of the First Amendment.Texas v. JohnsonThe Court declared unconstitutional a state law prohibiting any person to deface, damage, or otherwise physically mistreat a flag in a way that the actor knows will seriously offend one of more persons likely to observe or discover his action – an individual was convicted for burning a flag at a political convention.Here, unlike O’Brien, the government’s interest was not unrelated to suppression of the message; conversely, the law’s purpose was to keep the flag from being used to communicate protest or dissent. The Court stressed this is exactly what the First Amendment prohibited.United States v. EichmanThe Court declared a law passed by Congress, similar to that in Texas v. Johnson, unconstitutional for the same reasons in Texas. The Court reiterated that the law’s purpose was directly focused on the message and that therefore strict scrutiny was the appropriate test.Laws that prohibit flag burning are inherently content-based: the government is trying to preserve the flag as a symbol that communicates patriotism, but not of protest or dissent.Nude dancingBarnes v. Glen Theatre, Inc.The Court applied the O’Brien test to conclude that nude dancing was not protected by the First Amendment – the case involved the application of a state’s law prohibiting public nudity to prevent nude dancing.The Court found that it is within a state’s police power to prohibit public nudity, that there is an important interest unrelated to suppression of the message because of the state’s interest in morality, and that the impact on communication was no greater than necessary because the dancers could still express their message with pasties and a G-string.What is troubling here is the absence of a purpose for prohibiting nude dancing that is unrelated to suppression of the message. The state’s justification was a purely moral one – its view that the message and its means of expression are immoral.Spending money as political speechPolitical speech – speech in connection with elections and the electoral process – is at the very core of the First Amendment.Thus, restrictions on political speech are subjected to strict scrutiny. Strict scrutiny does not mean that all restrictions on political speech will be invalidated. For instance, the Court upheld a law that prohibited either the soliciting of votes or the display or distribution of campaign materials within 100 feet of the entrance of a polling place.Spending money in a campaign as speechBuckley v. ValeoThe Court held that spending money is a form of political speech. The case involved a challenge to a law to curb campaign spending adopted after the abuses uncovered during the Watergate investigation.The Court refused to apply the O’Brien test that is used for conduct that communicates. Even if the O’Brien was applied, the act would be treated as a law designed to suppress speech and thus would have to meet strict scrutiny.The Court stated that expenditure limits for a person to advocate an idea or a candidate themselves were unconstitutional as restricting one’s speech but limiting the amount one can donate to a candidate is constitutional as to prevent corruption.The Court refused to allow ceilings on overall campaign expenditures because it was not going to equalize spending.The Court upheld disclosure requirements because they always deter corruption.Criticisms of BuckleyThe Court’s treatment of spending money as speech, rather than as conduct that communicates, has been questioned. The contention is that the O’Brien test should have been applied, which is less protective of speech rather than the strict scrutiny test used by the Court.The Court’s distinction between expenditure and contribution limits has been questioned. Elected officials can be influenced by who spends money on their behalf, just as they can be influenced by who directly contributes money to them.Many have criticized the Court for giving inadequate weight to the value of equality of influence in political campaigns. Allowing unlimited expenditures allows the wealthy to drown out the voices of those with less money.The continuing distinction between contributions and expendituresSince Buckley, the Court has adhered to the distinction between contributions and expenditures. For example, the Court upheld a provision of an Act that limited the amount that individuals and associations could contribute to a political action committee.Also, the Court declared unconstitutional expenditure limits imposed on political action committees. Buckley stressed that restrictions on expenditures limited speech; the ability of political action committees to speak in campaigns was restricted by the laws. However, the Court stated contributions in connection with a ballot initiative do not have the same danger of buying influence of with a candidate or of creating the perception of undue influence.The Court has stated that there is a distinction between contributions and expenditures to declare unconstitutional a federal law that limited expenditures by a political party on behalf of a candidate. Finally, the First Amendment protects the right of political parties to make unlimited independent expenditures.Is corporate spending protected speech?First National Bank of Boston v. BellotiThe Court declared unconstitutional a law that prohibited banks of business from making contributions or expenditures in connection with ballot initiatives and referenda.Belloti has been sharply criticized claiming that the Court gave inadequate weight to the value of equality and how corporate speech can distort the marketplace of ideas because of corporate wealth and resources.What Places are Available for Speech?Some types of expression require a larger area than a private person is likely to own. A protest rally or demonstration is an important way of attracting public attention and communicating that a large group shares a sentiment. Such activity is a form of “assembly” expressing protected.Issue: What property is available for speech? The Court has dealt with this issue by identifying different types of government property:Public forumsLimited public forumsNonpublic forumsIt is now clearly established that there generally no right to restrict the use of private property for speech purposes. Because it is privately owned, there is no state action and the Constitution does not ernment properties and speechThe Court has recognized a right to use at least some government property under some circumstances for speech. Hague v. CIOThe Court declared unconstitutional an ordinance that prohibited all public meetings in the streets and other public places without a permit from the city.The Court found that there was a right to use government property for speech purposes.Schneider v. State of New JerseyThe Court declared unconstitutional a city’s ordinance that prohibited the distribution of leaflets on public property. The city’s interest was to minimize litter and to maintain the appearance of the streets. The Court found this insufficient to justify the prohibition of a person rightfully on a public street from handing literature to one willing to receive it.This case is important because it established that a city must allow speech on its property even if doing so will impose costs on the city. Moreover, the Court expressly rejected the city’s contention that it could restrict distribution of leaflets because other places were available for the speech.What government property under what circumstances?Once a right to use government property for speech is recognized, the issue inevitably arises: What publicly owned property must be made available for speech and under what circumstances?For example, while Hague and Schneider recognize a presumptive right to use the sidewalks and the parks for speech purposes, there obviously would be problems with allowing speech in the middle of a courtroom during a trial or on the runways of a public-owned airport or in the middle of a highway during rush hour.Public forumsPublic forums are government-owned properties that the government is constitutionally obligated to make available for speech. Four requirements must be met in order for the government to regulate speech in a public forum:The regulation must be content-neutral unless the content-restriction is justified by strict scrutiny.It must be a reasonable time, place, or manner restriction that serves an important government interest and leaves open adequate alternative places for speech.A licensing or permit system for the use of public forums must serve an important purpose, give clear criteria to the licensing authority that leaves almost no discretion, and provide procedural safeguards such as a requirement for prompt determination of license requests and judicial review of license denials.The Court has ruled that government regulation in speech in public forums need not use the least restrictive alternative, although it must be narrowly tailored to achieve the government’s purpose.Content neutralityThe Court has ruled that government regulation of speech in public forums must be content-neutral. At a minimum, this means that the government cannot regulate speech based on its viewpoint or its subject matter unless strict scrutiny is met.Boos v. BerryIllustrates the impermissibility of viewpoint restrictions in government regulation of speech in public forums – a DC law prohibited the display of signs criticizing a foreign government within 500 feet of its embassy.It was unconstitutionally content-based and it controlled political speech in a classic public forum, sidewalks.However, the Court upheld a separate part of the law which allowed police to disperse demonstrators gathered within 500 feet if there was a threat to peace or security. It was content-neutral and served important interests in public safety and order.Additionally, the Court has stressed the importance of equal access to public forums for speech purposes – they have relied on such in declaring unconstitutional subject matter restrictions on speech on public sidewalks.Police Dept. of Chicago v. MosleyThe Court expressly used an equal protection analysis to conclude the law was unconstitutional as an impermissible subject matter restriction on speech. The ordinance prohibited picketing or demonstrations within 150 feet of a school building while the school was in session, except for peaceful picketing in connection with a labor dispute. The law is impermissible subject matter because it allows one type of picketing based on its subject matter but bans all others.Carey v. BrownThe Court declared unconstitutional a statute that prohibited picketing or demonstrations around a person’s home. Under the law, picketing in residential neighborhoods was allowed if it was a labor dispute connected to a place of employment, but otherwise generally speech was prohibited – the Court applied equal protection. The statute allows some speech based on its subject matter but not other.Hill v. ColoradoThe Court upheld a regulation on protests outside abortion clinics based on its conclusion that the restrictions on speech were content-neutral.The law applied within 100 feet of the entrance to any health care facility and made it unlawful within that area for any person to “knowingly approach” within 8 feet of another person, without that person’s consent, “for the purpose of passing a leaflet of handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.”The Court stated the law applied no matter what the topic or viewpoint of the speech. It was a time, place, and manner regulation as (1) it didn’t regulate speech but where speech could occur, (2) it applied equally to all demonstrators, regardless of viewpoint or content and (3) the state’s interest in protecting access and privacy are unrelated to the content of the demonstrators’ speech.Ultimately, the issue in Hill goes beyond how the government may regulate public forums; it is about the question of how to determine if a law is content-based or content-neutral. The majority says that it is irrelevant if the purpose and effect of a law are to restrict a particular message, so long as the law can be justified with other permissible, content-neutral purposes.The government cannot regulate speech in a public forum based on the viewpoint or subject matter of the speech unless it can meet strict scrutiny. Time, Place and Manner RestrictionsTest from Heffron v. ISKC, Inc.: “time, place, and manner restrictions are reasonable provided that they are”:Justified without reference to the content of the regulated speech;Serve a significant governmental interest; andIn doing so, leave open ample alternative channels for communication of the informationHeffron v. ISKC, Inc.The Court upheld a regulation of speech at a state fair that prohibited the distribution of literature of the soliciting of funds except at booths, available on a first-come, first-serve basis.The law was content-neutral as it applied to all literature and solicitations regardless of the speaker, viewpoint, or subject matter. Regulating the flow of pedestrian traffic was an important state interest, and the need to control the crowd for safety reasons was sufficient as serving that state interest. There were other ways of reaching the audience, off the fair grounds and booths on the grounds.Kovacs v. CooperThe Court upheld a restriction on the use of sound amplification devices, such as loudspeakers on trucks. The Court emphasized the law did not prohibit all such devices, but rather was a reasonable time, place and manner restriction. Grayned v. RockfordThe Court upheld an ordinance that prohibited any person while on public or private grounds adjacent to any building in which a school is in session, to make noise or a diversion which disturbs the order of the school.The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.In several cases, the Court has upheld restrictions on protests outside abortion clinics as reasonable time, place, and manner restrictions. The Court has upheld an order restricting speech in a 36-ft buffer zone around an abortion clinic so as to protect the ability of people to enter and leave the facility. The Court upheld this, as well as noise restrictions, but struck down a ban on signs saying that restriction was unnecessary to further the government’s interest.However, the Court invalidated a “floating buffer zone,” around individuals using an abortion facility but it burdens more speech than necessary; it prevents communicating information for a normal conversation or handing out leaflets.The restriction has ruled against the government in other areas: a silent sit-in as a protest at a racially segregated public library was allowed, stressing that it was a silent protest that did not interfere with the operation of the library.The Court has declared unconstitutional a broad restriction of speech on the sidewalks surrounding the Supreme Court building which prohibited the display of any flag, banner, or device designed to bring into public notice any party, organization, or movement. It was not a reasonable time, place and manner restriction because a total ban on all speech was unnecessary to preserve order and prevent disruption of proceedings – e.g., silent protests would never interfere. The conclusion to draw from the above – the determination of whether a regulation is a reasonable time, place and manner restriction is entirely contextual. In each instance, the Court has to assess whether the regulation is an important interest and whether it leaves open adequate alternative plans for expression.Licensing and Permit SystemsLicensing and permit systems are classic forms of prior restraint. The government can require a license for speech in public forms only if:There is an important reason for licensing,There are clear criteria leaving almost no discretion to the licensing authority, and There are procedural safeguards such as a requirement for prompt determination of license requests and judicial review of denialsCox v. New HampshireThe Court upheld an ordinance that required that those wishing to hold a parade or demonstration obtain a permit and that allowed a permit to be denied only if the area was already in use by another group. The government has an important interest in requiring a permit for speech so as to make sure that there was only one demonstration in a place at a time.In contrast, permit systems that leave significant discretion to the licensing authority are declared unconstitutional because they risk the government granting permits to favored speech and denying them to unpopular expression.Lovell v. City of GriffinThe Court declared unconstitutional a city’s ordinance that prohibited the distribution of leaflets, literature, or advertising without the written permission of the city manager (no guidelines given to manager).Saia v. New YorkThe Court declared unconstitutional an ordinance that required a permit in order to use a sound amplification system on a motor vehicle. An ordinance that gives unfettered discretion to government officials to decide who can use such vehicles violates the First Amendment. Likewise, the Court has held the government cannot require a permit fee for demonstrations if the government officials have discretion in setting the amount of the charge. This is because such a law would allow the official to encourage some views and discourage others through the arbitrary application of the fees – such “unbridled discretion” in unconstitutional.All permit fee requirements are not prohibited but such charges are unconstitutional if officials have discretion as to the amount.No requirement for the use of the least restrictive alternativeFinally, the Court has held that when the government regulates speech in the public forum, it need not use the least restrictive alternative, although any regulation must be narrowly tailored. Ward v. Rock Against RacismThe Court upheld a requirement in NYC that any concert using a certain venue had to use city sound engineers and city sound equipment.Although the city could achieve its goal in less restrictive ways (e.g., decibel limits), the Court said that a regulation of the time, place and manner or protected speech must be narrowly tailored to serve the government’s legitimate, content-neutral interests but that it need not be the least restrictive or least intrusive means of doing so.The requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation. But the restriction may not burden substantially more speech than is necessary to further the government’s legitimate interests.Limited public forumsGovernment regulation in places voluntarily opened to speechA “limited” or “designated” public forum is a place that the government could close to speech, but that the government voluntarily and affirmatively opens to speech. If, however, the government chooses to allow speech in such a place, it creates a limited or designated public forum. So long as the place is open to speech, all of the rules for public forums apply.For example, the Court has held that if the public schools and universities open their property for use by student and community groups, they cannot exclude religious groups. Good News Club v. Milford Central School (2001)The Court held unconstitutional an elementary school’s exclusion of a group’s using school property after school for religious activities including prayer and Bible study.The Court said that the parties in the case had accepted that by opening its facilities it had created a “limited public forum” and exclusion of religious speech was an impermissible content-based restriction.Lehman v. City of Shaker HeightsThe Court upheld a city’s refusal to accept advertising for its buses on behalf of a candidate for public office.The Court stressed that the government was engaged in a “commercial venture” and that the restriction was justified because there could be issues with favoritism when deciding between political candidates.The advertising on a bus is a designated public forum; the government did not have to allow advertising on buses, but did so voluntarily.When the state establishes a limited public forum, the state is not required to allow persons to engage in every type of speech. The state may be justified in reserving its forum for certain groups or for the discussion of certain topics (e.g., a speaker series on international businesses is constitutional).Nonpublic forumsGovernment property that constitutes nonpublic forumsNonpublic forums are government properties that the government can close to all speech activities. The government may prohibit or restrict speech in nonpublic forum as long as the regulation is reasonable and viewpoint neutral.Adderly v. FloridaThe Court held that the government could prohibit speech in the areas outside prison and jails. Civil rights demonstrators held a rally outside a jail after a group of their colleagues had been arrested for engaging in a civil rights protest.Greer v. SpockThe Court upheld that military bases, even parts of bases usually open to the public, are a nonpublic forum. The Court upheld this regulation and said that it is “the business of military installation like Fort Dix to train soldiers, not to provide a public forum.” The Court said that the government could exclude such speech to insulate the military political activities. The Court has upheld an ordinance that prohibited the posting of signs on public property. The Court ruled that the government could prohibit the posting of political campaign signs on utility poles. The Court concluded that such poles are a nonpublic forum and that the government could prohibit the posting of signs to preserve “esthetic values.” The Court rejected the claim that the public property was a public forum because of the absence of a traditional right of access respecting such items as utility poles for purposes of communication comparable to that recognized for public streets and park.U.S. v. KokindaThe Court upheld a restriction on solicitations on post office properties. Sidewalks, of course, are the paradigm public forum. However, sidewalks on post office property were a nonpublic forum. Postal sidewalks do not have the characters of public sidewalks traditionally open to expressive activity. Postal sidewalks were constructed solely to provide for the passage of individuals engaged in postal business.ISKC v. LeeThe Court ruled that airports are a nonpublic forum. The Court emphasized that airports are a commercial venture and that they obviously do not have as a principal purpose promoting the free exchange of ideas.However, the prohibition of the distribution of literature in airports was unconstitutional.Finally, the Court has held that a candidate debate sponsored by a government-owned television station is a nonpublic forum and that the exclusion of minor party candidates is not viewpoint discrimination. The Court said that a broadcaster’s choice of content and selection of speakers is itself expressive activity protected by the First Amendment. To create a forum of this type (broadcast), the government must intend to make the property (airwaves) generally available. A designated public forum is not created when the government allows selective access for individual speakers rather than general access for a class of speakers.General access indicates that property is a designated public forum and selective access indicates the property is a nonpublic forum.What determines the status of a forum?The Court never has articulated clear criteria for deciding whether a place is a public forum, a designated public forum, or a nonpublic forum. Recent cases imply it will be hard to find that government property is a public or limited public forum.Tradition of availabilityOne factor the Court considers is the tradition of availability of the place of speech. Sidewalks and parks, the classic public forums, are regarded as having been long available for speech purposes. Recently, the Court’s analysis has focused on whether the particular place has been open to speech. In Kokinda, the Court focused not on sidewalks generally, but on sidewalks on post office property; in Lee, the Court refused to consider places of transportation generally, but just at airports. Even as to airports, the Court said that because they are relatively new, albeit decades old, they could not be regarded as traditionally open to speech. This narrow focus makes it difficult to find that a place is a public forum based on a tradition of openness to speech.Extent to which speech is incompatible with placeThe Court considers the extent to which speech is incompatible with the usual functioning of the place. For instance, in Adderly, the Court relied on security concerns to justify deeming areas outside prisons and jails to be a nonpublic forum. In Vincent, the Court found that the government’s interest in aesthetics was incompatible with allowing postings on utility poles. However, these cases indicate that the Court requires little proof that speech actually will interfere with the functioning of the place. For instance, in Adderly, there was no evidence that the peaceful protest on a grassy area outside the jail was a security threat. In Greer, there was no proof that speech on the military base would interfere with its functioning or cause the appearance of political entanglement with the military.Primary purpose of the placeThe Court considers whether the primary purpose of the place is for speech. In Lee, the Court observed that expression obviously is not the primary purpose of airports. In Kokinda, the plurality said that sidewalks on post office property were not even limited public forums because they had not been dedicated to speech activities. By this criteria, virtually no property would ever be a public forum or a limited public forum.Although these recent cases indicate a strong presumption for finding government property to be a nonpublic forum, the criteria can be applied in a more speech protective manner to safeguard expression in public property. Courts can find a tradition of availability to speech based on the use of that general type of property (sidewalks generally as opposed to just those outside post offices) for expressive purposes. Even some incompatibility with the usual functioning of a place can be tolerated so as to accommodate the First Amendment values. For example, in Schneider, the Court held that the government could not prohibit leafleting even though it had an important interest in preventing litter and in preserving aesthetics. Although a place’s primary purpose may not be for speech, it should be found to be a limited public forum if the government has opened it to some speech. A place should be found to be a public forum, even though it obviously has other uses, if it is an important place for the communication of messages and there are not strong reasons for closing it to speech.First Amendment: ReligionThe Free Exercise ClauseIntroductionReligious beliefs and actionsThe Court repeatedly has stated that the government may not compel or punish religious beliefs; people may think and believe anything that they want.The free exercise clause, however, obviously does not provide absolute protection for religiously motivated conduct. The free exercise clause is invoked in several situations:When the government prohibits behavior that a person’s religion requiresFor example, Reynolds v. United States, the Court upheld the constitutionality of a law forbidding polygamy even though Mormons claimed that it was required by their religion.When the government requires conduct that a person’s religion prohibitsFor instance, the Court rejected a challenge by Amish individuals who claimed that the requirement that they obtain Social Security numbers and pay Social Security taxes violated their religious beliefs.When individuals claim that laws burden or make more difficult religious observancesFor example, in numerous cases the Court held that the government impermissibly burdens religion if it denies benefits to individuals who quit their job for religious reasons.Historical development of the lawSherbert v. Verner (1963)The Court expressly held that strict scrutiny should be used in evaluating laws burdening free exercise of religion and declared unconstitutional the denial of unemployment benefits to a woman who was discharged from her job rather than work on her Saturday Sabbath.Employment Division v. Smith (1990) – CURRENT LAWThe Court held that the free exercise clause cannot be used to challenge a neutral law of general applicability. Basically, no matter how much a law burdens religious practices; it is constitutional under Smith so long as it does not single out religious behavior for punishment and was not motivated by a desire to interfere with religion.In contrast…Church of the Lukumi Babalu Aye, Inc. v. Hialeah (1993)The Court declared constitutional a city ordinance that prohibited ritual sacrifice of animals because it was directed solely at a particular religious sect.After these cases, the law is that a neutral law of general applicability only has to meet rational basis review, but laws that are directed at religious practices have to meet strict scrutiny.Strict Scrutiny: 1960 – 1990Sherbert v. Verner (1963)The Court held that strict scrutiny was the appropriate test in evaluating government laws burdening religious freedom. A state denied unemployment benefits to a woman who quit her job rather than work on her Saturday Sabbath. The Court concluded that the denial of benefits imposed a substantial burden on religion; the woman had to choose between an income and her faith. The Court found no compelling interest and ruled that the denial of benefits constituted a violation of the free exercise clause.The Court in Smith stated that the Sherbert line of cases applied only in the context of the denial of unemployment benefits.Employment Division v. Smith and its applicationEmployment Division v. Smith (1990)The Court rejected the use of strict scrutiny for challenges to neutral laws of general applicability that burden religion. The case involved a challenge by Native Americans to a law prohibiting use of peyote, a hallucinogenic substance. Individuals challenged the state’s determination that their religious use of peyote, which resulted in their dismissal from employment, was misconduct disqualifying them from receipt of unemployment compensation benefits.The Majority rejected the claim that free exercise of religion required an exemption from an otherwise valid law.Strict scrutiny was abandoned for evaluating laws burdening religion; neutral laws of general applicability only have to meet the rational basis test, no matter how much they burden religion.Church of the Lukumi Babalu Aye, Inc. v. Hialeh (1993)The Santeria religion uses animal sacrifice as one of its principal forms of worship. Animals are killed and then cooked and eaten in accord with Santeria rituals. After the Santerias announced plans to establish a church in Hialeh, FL, the city adopted an ordinance prohibiting ritual sacrifice of animals. The law defined “sacrifice” as killing animals “not for the primary purpose of food consumption.”The law was not neutral because its clear object was to prohibit a religious practice. The Court also focused on the exceptions to the law that allowed killing of animals by other religions, such as in kosher slaughtering and those that allowed killing of animals for nonreligious reasons.The law was not one of general applicability because it was drafted to forbid few killings by religious sacrifice. Because the ordinance was neither neutral nor of general applicability, the Court applied strict scrutiny. The Court found the law unconstitutional because the government could achieve the goals of safe and sanitary disposal of animal remains without targeting the Santeria religion.After Smith and Hialeh, the law of the free exercise clause was that the provision is not violated by a neutral law of general applicability unless it fails rational basis review, but a law that is not neutral or of general applicability would be found unconstitutional unless it met strict scrutiny.Lower court applicationsCourt of Appeals rejected a free exercise challenge to a law requiring individuals to disclose their SS number in order to receive a driver’s license – constitutional as a neutral law of general applicabilitySeventh Circuit invalidated a prison regulation which forbids crosses unless they include a rosary – by favoring Catholic and not allowing Protestant symbols, the law was unconstitutionalThird Circuit invalidated a police policy prohibiting beards as violating the free exercise rights of Muslims because it had secular exceptions but not for religionHybrid situationA hybrid situation occurs when a claim combines a free exercise argument with another constitutional right, and thus triggering a heightened scrutiny.It is not clear when a case presents a “hybrid claim” and warrants a heightened scrutiny. For example, there is a split among lower courts as to whether a challenge to school uniforms based on free exercise of religion and the right of parents to control the upbringing of their children and triggers strict scrutiny.Denial of Religious Funding ConstitutionalLocke v. Davey held that a state government can restrict its college scholarships so as to prevent them from being used by those studying for the ministry. The Court emphasized that while the government may constitutionally allow such use of its scholarships, it is not constitutionally required to do so.Davey argued that the state violated the free exercise clause by allowing students to receive scholarship assistance if they pursued secular, but not religious, studies. The Court rejected this and held that a state could, if it wanted, allow its scholarships to be used by students studying to be clergy. They explained that denying Davey scholarship money to study ministry does not interfere with his free exercise of religion in any way. Ultimately, Locke v. Davey means that government at all levels can choose how it wants to spend taxpayers’ money and the extent, if any, it wants to financially support religion.The Establishment ClauseCompeting Theories of the Establishment ClauseThere are three major competing approaches to the establishment clause: strict separation, the neutrality theory, and the accommodation theory.Strict SeparationStrict separation testThis approach says that to the greatest extent possible government and religion should be separated. The government should be, as much as possible, secular; religion should be entirely in the private realm of society.The theory is that government involvement with religion is inherently divisive in a country with so many different religions and many people who claim no religion at all. There are problems, though, with the strict separation approach. A complete prohibition of all government assistance to religion would threaten the free exercise of religion. For example, a refusal by the government to provide police, fire, or sanitation services obviously would seemingly infringe on free exercise. Thus, a total wall separating church and state is impossible, and the issue becomes how to draw the appropriate line.Neutrality TheoryThe neutrality theory says that the government must be neutral toward religion; that is, the government cannot favor religion over secularism or one religion or others. Substantive neutrality means that the religion clauses require government to minimize the extent to which it either encourages or discourages religious belief or disbelief, practice or nonpractice, observance or nonobservance.Recently, the Court has advanced a “symbolic endorsement” test in evaluating the neutrality of the government’s action. “Symbolic endorsement” testThe government violates the establishment clause if it symbolically endorses a particular religion or if it generally endorses either religion or secularism. Every government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion.The difficulty is in determining what government actions constitute a “symbolic endorsement” of religion. Capitol Square Review v. PinetteThe Court held that the Klu Klux Klan could erect a large Latin cross in the park across from the Ohio Statehouse because excluding the cross violated the Klan’s free speech rights and that allowing it to be present would not violate the establishment clause.There was no majority but the Court concluded the cross should be allowed because the reasonable observer would not perceive it as an endorsement of religion. Because there was a sign disclaiming government sponsorship or endorsement and this would remove doubt about the State approval of the religious message.One concurrence stated the endorsement test is applied from the perspective of a hypothetical observer who is presumed to possess a certain level of information that all citizens might not share. The reasonable observer must be deemed aware of the history and context of the community and forum in which the religious display appears.With the symbolic endorsement test, the Court is inevitably left to make a subjective choice as to how people will perceive a particular symbol.Most recently, the Court used the symbolic endorsement test for determining the constitutionality of religious symbols on government property. Van Orden v. PerryThe Court held upheld the constitutionality of a 6’ high, 3’ wide Ten Commandments monument between the Texas State Capitol and Texas Supreme Court for lack a symbolic endorsement because of the presence of many other secular monuments on the Texas State Capitol grounds.Accommodation TheoryUnder the accommodation approach, the Court should interpret the establishment clause to recognize the important of religion in society and accommodate its presence in government. Accommodation approach testThe government violates the establishment clause only if it literally establishes a church, coerces religious participation, or favors one religion over ernment should accommodate religion by treating it the same as nonreligious beliefs and groups. A key question under this approach concerns what constitutes government coercion.Lee v. WeismanThe Court declared unconstitutional clergy-delivered prayers at public school graduations because such prayers are inherently coercive as there is great pressure on students to attend their graduation ceremonies and to not leave during the prayers.However, the Court noted the establishment clause can be violated even without coercion. It is not enough that the government refrain from compelling religious practices; it must not engage in them either. Coercion is sufficient for finding coercion but not necessary; establishment clause violations exist without coercion if there is symbolic government endorsement for religion.The dissent argues that coercion exists only if the law requires and punishes the failure to engage in religious practices.The Theories AppliedAllegheny County v. Greater Pittsburgh ACLUTwo different religious displays were involved: (1) a representation of the nativity of Jesus placed in a county courthouse and (2) a large Christmas tree and a large menorah in front of a government building.Strict separation approach:The Justices supporting this argued both symbols should be deemed unconstitutional as violating the establishment clause as it should be construed to create a strong presumption against the display of religious symbols on public property.Accommodation approach:The Justices here would have allowed both symbols because the establishment clause allows communities to make reasonable judgments respecting the accommodation or acknowledgement of holidays with both cultural and religious aspects.Neutrality approach:The Justices here applied the symbolic endorsement test and found that the menorah was constitutional because it was accompanied by a Christian symbol and a secular expression but the nativity scene was unconstitutional because it was alone on government property and thus likely to be perceived as symbolic endorsement for Christianity.The conclusion was that the nativity scene was unconstitutional but the menorah and Christmas tree were permissible.Note: No theory commands support from a majority of the Justices.Prohibition of Government Discrimination among ReligionsIt is firmly established that the government violates the establishment clause if it discriminates among religious groups. Such discrimination will be allowed only if strict scrutiny is met. If there is not discrimination, the case is discussed under the Lemon test. When it is claimed that a denominational preference exist, the initial inquiry is whether the law facially differentiates among religions. If no such facial preference exists, the court applies the customary three-pronged Lemon test.Larson v. ValenteThe Court declared unconstitutional a Minnesota law that imposed registration and reporting requirements on charitable organizations, but exempted religious institutions that received more than half of their financial support from members’ contributions.The Court concluded that the 50% requirement clearly grants denominational preference for the Catholic church. The Court found that there was no compelling interest to justify the discrimination and thus concluded that the 50% requirement was a denominational preference.Kiryas Joel Village School District v. GrumetThe Court applied the neutrality approach to declare unconstitutional a state law that created a separate school district for a small village that was inhabited by Hasidic Jews.NY then adopted a law that created a public school district with boundaries identical to those of the village. The school board consisted solely of members of the Hasidic sect.Again, the Court declared the law unconstitutional as impermissible preference for one religion over others. The government created a school district specifically to help one religion so that it could provide special education without its children having to attend school with those outside the faith.Cases such as Larson and Kiryas Joel establish that a government action violates the establishment clause if it prefers one religion or sect over others. In such instances, the Court invalidates the law without reaching the Lemon test.The Lemon TestIf a law is not discriminatory, a court should apply the three-part test articulate in Lemon v. Kurtzman. A law is unconstitutional if it fails any prong of the test.The Lemon test states:The statute must have a secular legislative purpose;Its principal or primary effect must be one that neither advances nor inhibits religion; andThe statute must not foster an excessive government entanglement with religionThe test is supported by Justices taking the strict separation approach or the neutrality approach, although those supporting the neutrality approach emphasize whether the purpose or effect is to symbolically endorse religion. Justices favoring the acommodationist approach urge the overruling of the Lemon test.The Requirement for a Secular PurposeThe first prong of the Lemon test is the requirement that there be a secular purpose for a law. For example, the Court declared unconstitutional a state law that required the Ten Commandments to be posted on the walls of every public school classroom. They invalidated a state law that authorized public school teachers to hold a one-minute period of silence for mediation or voluntary prayer – the state had no secular purpose. The Court also followed this reasoning and ruled unconstitutional a state law that required that public schools that teach evolution also teach “creation science,” – a religious theory because the act furthers the religion in violation of the establishment clause. McCreary County v. ACLUThe Court declared unconstitutional a country’s effort to post the Ten Commandments in county buildings. The Court stated that the content of the Ten Commandments and the context of the county’s actions left no doubt that it was acting with the purpose of advancing religion.However…McGowan v. MarylandThe Court upheld the constitutionality of state laws requiring businesses to be closed on Sunday. The Court acknowledged the strongly religious origin of these laws.Nonetheless, the Court found the laws permissible because the present purpose and effect of most of them is to provide a uniform day of rest for all citizens; the fact that this day is Sunday, a day of particular significance for the dominant Christian sects, does not bar the Stat from achieving its secular goals.The Requirement for a Secular EffectThe second prong of the Lemon test requires that the principal or primary effect of a law must be one that neither advances nor inhibits religion. In recent years, this often has been expressed in terms of symbolic endorsement: The government’s action must not symbolically endorse religion or a particular religion.Estate of Thornton v. CaldorThe Court used the second part of the Lemon test to invalidate a law that provided that no person may be required by an employer to work on his or her Sabbath. The Court emphasized that the law created an absolute and unqualified right for individuals to not work for religious reasons and thus favored religion over all other interests.In other cases, the Court has upheld exemptions from laws for religion: an exemption for religious organizations from Title IV’s prohibition against discrimination in employment based on religion. The Court stated that a law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose.The difference between these two is that the latter involved an exemption in a state for religion, whereas the former concerned a law that provided a benefit solely for religion.Note: Public school teachers at a sectarian school do not create a primary effect that advances religion: (1) the aid (remedial instruction) goes directly to the students, and (2) as long as the remedial program does not replicate services already provided by the benefited institutions, thereby relieving those schools of costs they would have otherwise borne, the primary effect remains secular.The Prohibition of Excessive EntanglementThe third prong of the Lemon test forbids government actions that cause excessive entanglement with religion. The Court has said that a law violates the establishment clause when it requires a comprehensive, discriminating, and continuing state surveillance.For example, the Court traditionally has held that the government cannot pay teacher salaries in parochial schools. Even for teachers of secular subjects or for special education teachers. If the government paid such salaries, it would need to monitor whether the teachers were teaching secular or religious material. Any such monitoring would be excessive entanglement with religion.The Court in Mitchell v. Helms held without a majority opinion, that the government may give instructional equipment to parochial school so long as it is not used for religious instruction. It is unclear as to how Mitchell affects the no-entanglement prong of the Lemon test.Religious Speech and the First AmendmentIn recent years, a significant number of cases concerning the establishment clause have involved free speech claims. Specifically, these cases concern government property or government funds because of a desire to avoid violating the establishment clause. The Court consistently has held that excluding such religious speech violates the First Amendment’s protection of freedom of speech because it is an impermissible content-based restriction of expression.If a government action can be characterized as a restriction of private religious speech, it can be challenged as violating the First Amendment’s protection of freedom of speech and the challenger has a strong likelihood of prevailing.Religious Group Access to School FacilitiesWidmar v. VincentThe Court declared unconstitutional a state university’s policy of preventing student groups from using school facilities for religious worship or religious discussion.The Court said that the university had created a public forum by opening these places to speech and said that in order to justify discriminatory exclusion from a public forum based on the religious content of a group’s intended speech, the University must therefore satisfy the strict scrutiny. The Court then concluded that excluding religious speech was not necessary in order to be consistent with the establishment clause. The Court applied the Lemon test and said that opening school facilities to all groups served the secular purpose of providing a forum for student meetings. The Court said that any effect in advancing religion would be incidental.The Court concluded that allowing religious groups to use school facilities was not excessive entanglement with religion; no state monitoring would be necessary if the university allowed secular and religious groups to use the facilities.Board of Ed. of Westside Community Schools v. MergensThis case involved a constitutional challenge to the federal Equal Access Act which applies to any public school receives federal funds – stating that any such school that opens its facilities to non-curricular student groups may not deny equal access to any students who wish to conduct meetings on similar terms because of the religious, political, or other content of their speech.The Court used the Lemon test and concluded that preventing discrimination against speech because of its religious, political or other content was a legitimate secular purpose. Also, there was not excessive entanglement with religion because faculty sponsors were not allowed to participate actively in religious groups’ meetings.Lamb’s Chapel v. Center Moriches Union School DistrictThe Court followed Mergens and declared unconstitutional a school’s district’s policy of excluding religious groups from using school facilities during evenings and weekends.The Court said that once the government chose to open its facilities to community groups, it could not discriminate against those engaging in religious speech unless strict scrutiny was met. Permitting District property to be used would not have been an establishment of religion under the Lemon test.Good News Club v. MilfordThe Court followed Lamb’s Chapel and held that an elementary school could not exclude a religious group from using school facilities after school. The school opened its facilities to community groups to conduct activities for the students after school but denied access to Good News Club, a religious group because of the religious content of its activities.By opening the school’s facilities to community groups, they created a “limited public forum.” In a limited public forum, the government’s regulation of speech must be viewpoint neutral. Secular groups could use the school facilities to discuss their positions on various issues with the students; but religious groups were precluded from expressing their views on the same matters.If teachers were involved and the school actively encouraged students to participate, there would be a strong argument that the religious activity violated the establishment clause.Good News Club follows cases like Lamb’s Chapel in that the Court held that excluding religious groups from using government property was impermissible discrimination based on the content of the speech. But Good News Club is important in extending the earlier decisions to elementary schools and the time immediately after school. There still remains the possibility of “as applied” challenges to religious groups’ use of school facilities. For example, if the school participates in a manner that might be seen as “coercive” – such as teachers encouraging participation or religious activities during school – the result might well be different.Student Religious Group Receipt of Government FundsRosenberger v. University of VirginiaThe Court declared unconstitutional a state university’s refusal to give student activity funds to a Christian group that published an expressly religious magazineThe Court reasoned so in two steps:Denying funds to the religious student group was impermissible content-based discrimination against religious speech because the government was unconstitutionally discriminating against the Christian group because of the religious contents of its speech (content-based discrimination).Providing funds to the religious group would not violate the establishment clause because the governmental program is neutral toward religion. The government was acting with the purpose and effect of helping student groups and fostering a wide array of activities and viewpoints on campus. The Court analogized to Lamb’s Chapel saying that denying funds to student activities was similar to denying groups access to school buildings.The student fund that is sponsoring the newspaper is analogous to a limited public forum (think political action committee and spending money constitutes speech).Private Placement of Religious Symbols on Government PropertyThe Court also used a free speech approach to resolve an establishment clause dispute issue in Capitol Square v. Pinette.Capitol Square v. PinetteThe Court ruled the government violated Free Speech by excluding religious speech when a state agency refused to allow the KKK to build a large Latin cross in a park across the state capitol – note that there was no majority ernment exclusion of the cross because of its religious significance was content-based discrimination against speech. Compliance was with the establishment clause is a compelling state interest to justify content-based restriction on speech. Following Widmar and Lamb’s Chapel, to conclude no violation of the establishment clause if religious speech is allowed on government property in the same manner as secular speech.Excluding the cross was content-based discrimination, but the establishment clause also required analysis as to whether allowing the religious symbol would be perceived as government endorsement for religion. There was no violation of the establishment clause because there was no realistic danger that the community would think that the state was endorsing religion. [Dissent] There was a violation of the establishment clause because it should be construed to create a strong presumption against the installation of unattended religious symbols on public property.Note: Pinette was about private placement of religious symbols on government property. Obviously, government placement of religious symbols on government property does not raise free speech issues, but rather is entirely about whether the establishment clause is violated.Rejection of Prayer at Student Football GamesSanta Fe School District v. DoeThe Court declared unconstitutional student-delivered prayers at high school football games and expressly rejected the argument that this was impermissible discrimination against religious speech rights of students; the school argued that excluding prayer was an unconstitutional content-based restriction on speech. The Court disagreed and emphasized that the school had not created a forum where students could say anything they wanted – instead the message was restricted by the school. The Court did not see the student-delivered prayers as private speech, rather as the school encouraging and facilitating prayer.Realize that allowing each religion a turn would be excessive entanglement by the government because they would be required to oversee what was said each time.ImplicationsNote that many traditional establishment clause issues might be reconceptualized as involving government content-based discrimination against speech. For example, whether student-delivered prayers are allowed at public school graduation might be analyzed in terms of whether:allowing them is a violation of the establishment clause; andprohibiting them is an impermissible content-based discrimination against religious speech.The underlying issue whether and when allowing private religious speech to use government property or to receive government funds violates the establishment clause. The Court has separated into supporting 3 views:There is a strong presumption, if not an irrebuttable one, that all such activity violates the establishment clause; complying with the establishment clause is a compelling interest that requires the exclusion of religion from government property and from the receipt of government funds.The inquiry in each case is whether the government action would be perceived, from the perspective of the reasonable observer, as government symbolic endorsement for religion; only then would it violate the establishment clause and require government exclusion. The government may never exclude such religious speech unless there was the extremely unlikely possibility that allowing it would be tantamount to the government creating a church or coercing religious participation.When Can Religion Become a Part of Government Activities?Release as a part of government activities: schoolsRelease timeThe first Supreme Court cases to consider religion as a part of public school activities concerned policies that allowed students to be released from classes to receive religious instruction. The Court said that this was impermissible if the religious teaching occurred on school premises, but allowed if the students were released to receive religious training elsewhere.McCollum v. Board of EducationThe Court declared unconstitutional a school’s policy of allowing students to be released, with parental permission, to religious instruction class conducted during regular school hours in the school building by outside teachers.The Court found the law unconstitutional as violating the “wall of separation between church and state.” The state’s tax-supported public school buildings were being used for the dissemination of religious doctrines but the state also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through the use of the state’s compulsory public school system.Zorach v. Clauson The Court upheld a school board policy that allowed students to be released, during the school day, for religious instruction outside the school.The Court concluded that allowing students to receive religious instructions during school hours was simply accommodating religion and not a violation of the establishment clause since government funds and facilities were not used.The Court distinguished McCollum because there “the classrooms were used for religious instruction and the force of the public school was used to promote that instruction. In contrast, in Zorach, all of the religious education occurred off school premises.School prayers and Bible readingThe Court has declared unconstitutional prayers and Bible readings in public school. The Court has invalidated prayer in public schools, including voluntary prayers led by instructors and a government-mandated moment of “silence” for “meditation or silent prayer.” The Court also has followed this reasoning to invalidate clergy-delivered prayers and public school graduations.However, the Court has not yet ruled as to whether a government-mandated moment of silent reflection would be allowed; nor has it decided the constitutionality of student-delivered prayers at public school graduations.Engel v. VitaleThe Court held prayers in public schools to be unconstitutional by invalidating a school policy of having a “non-denominational prayer,” composed by the state’s Board of Regents, recited at the beginning of each day. NY’s state prayer program officially established the religious beliefs embodied in the Regents’ prayer. Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the establishment clause.The Court emphasized the unconstitutionality of the government writing prayers and directing that they be read within the public schools. The Court expressly rejected the argument that forbidding prayers constituted hostility to religion.Abington School District v. SchemppThe Court declared unconstitutional a state’s law that required the reading, without comment, at the beginning of each school day of verses from the Bible and the recitation of the Lord’s Prayer by students in unison.Although Schempp, unlike Engel, did not involve a state-composed prayer, the laws requiring Bible reading and reciting of the Lord’s Prayer were deemed to violate the establishment clause. The Court emphasized that these religious exercises were prescribed as part of the curricular activities of students, conducted in school buildings, and supervised by teachers.The Court distinguished studying the Bible in a literature or comparative religion course, which would be permissible. The exercises here do not fall into studying religion in context but are religious exercises, required by the states violating the establishment clause.Wallace v. JaffreeThe Court followed Engel and Schempp and declared unconstitutional a law that authorized a moment of silence in public schools for “meditation or voluntary prayer.” The legislative history of the law was clear that its purpose was to reintroduce prayer into the public schools – the law was not motivated by any secular purpose, in fact it had no secular purpose.Lee v. WeismanThe Court reaffirmed and extended the ban on prayers in the public school by declaring unconstitutional clergy-delivered prayers at public school graduations. The Court stressed the inherent coercion in allowing prayer at graduations. Although no student was required to attend graduation, it is an important event in one’s life and they likely feel psychological pressure not to excuse themselves during the prayer.Prayers in the public schools continue to be an impermissible activity at official school events, particularly where the school encourages and facilities prayer (Santa Fe School District v. Doe).Engel, Schempp, Wallace, Lee, and Doe establish that prayer – even if voluntary, nondenominational, or silent – is impermissible in public schools. The cases embody the view that government directed prayer is inherently religious activity and therefore does not belong in public schools. Students are required by compulsory attendance laws to be present, and even voluntary prayers are coercive.Doe is clear that prayer at school functions is impermissible if the government encourages or facilitates the religious activity. After Doe, student-delivered prayers at public school graduations would be clearly impermissible if the school encouraged them or significantly participated in facilitating their occurrence. The unresolved question is whether the establishment clause is violated if a student makes the voluntary choice to deliver or lead a prayer at graduation ceremonies.Curricular decisionsThe Supreme Court has declared unconstitutional government decisions concerning the curriculum that were motivated by religious purposes. These cases primarily have concerned state laws prohibiting the teaching of evolution or requiring the teaching of “creationism” when evolution is taught.Epperson v. ArkansasThe Court held that that law prohibiting teaching of evolution was motivated by a religious purpose and thus violated the establishment clause.The First Amendment does not permit the state to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma. The law did exactly that: preclude teaching of evolution because it was a theory opposed by some religions.Edwards v. AguillardThe Court followed the same reasoning as in Epperson and declared unconstitutional a Louisiana law that prohibited the teaching of the theory of evolution in public schools unless accompanied by instruction in creation science.Religion as a part of government activities: religious symbols on government propertyThe Court has ruled that nativity scenes, menorahs, and other religious symbols are allowed on government property so long as they do not convey symbolic endorsement for religion or a particular religion. Lynch v. Donnelly (1984)The Court upheld the constitutionality of a nativity scene in a park – the Christmas display included a Santa Clause house, a reindeer pulling the sleigh, a Christmas tree with lights and a crèche. All of the display was owned by the city and placed in a park maintained by a nonprofit organization.The Court concluded that the nativity scene was permissible because it was motivated by a secular purpose: celebrating Christmas.The Court held that celebrating the holiday and depicting the origins of the holiday are secular purposes.County of Allegheny v. ACLU (1989)(discussed above) Two holiday displays: the nativity scene was invalid but the menorah paired with a Christmas tree was valid. Because the nativity was by itself, it conveyed symbolic endorsement for Christianity; in contrast, the menorah was accompanied by symbols of other religions and secular symbols. ................
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