Law.scu.edu



Constitutional Law II – Short Outline

Levels of Constitutional Scrutiny

• Rational Basis Scrutiny - Law must be rationally related to legitimate gov’t purpose

• Intermediate Scrutiny - Law must be substantially related to important gov’t purpose

• Strict Scrutiny - Law must be necessary to compelling gov’t purpose

|3 levels of review |Classification/Interest |Ends |Means |Burden |

| | |Objective of a law |How do you do it? | |

|(1) Strict Scrutiny most |“Suspect Classes” |Compelling gov’t purpose |Necessary |Gov’t |

|exacting |-Race |(really really important ) | | |

|high standard |-National Origin | |Narrowly tailored | |

| |-Alienage* |Gov’t must have truly | | |

| | |significant reason for |Cannot achieve through any | |

| | |discriminating |less discriminatory | |

| | | |alternative | |

|(2) Intermediate strict but|“Semi/Quasi Suspect” |Important gov’t purpose |Means substantially related |Gov’t |

|not as much as strict |-Gender | |to ends | |

| |-Non-Marital Children |Need not find that the | | |

| | |purpose is compelling | | |

|(3) Rational Basis |All laws not subject to |Legitimate gov’t purpose |Rationally or reasonably |Challenger |

|Minimum level of scrutiny |strict/intermediate | |related | |

| |-Disability |Need not be compelling or | |Enormously |

| |-Age |important, just something | |deferential to the |

| |-Wealth |the gov’t may legitimately | |gov’t |

| |-Sexual Orientation |do | | |

Equal Protection Framework:

1. What group?

2. What level of scrutiny?

a. Gov’t will argue for lowest level (rational basis)

b. Challenger will argue for highest (strict scrutiny)

3. Is scrutiny met?

a. Apply test for appropriate level of scrutiny

b. Over or underinclusive?

First Amendment Framework

1. What forum?

2. CB v. CN

a. If CB – unprotected or less-protected?

i. apply strict scrutiny

b. If CN – apply intermediate scrutiny

3. Level of Scrutiny

a. Gov’t will argue for lowest level

b. Challenger will argue for highest (strict scrutiny)

I. EQUAL PROTECTION

1. Rational Basis Test

a. (1) Does the law have a Legitimate Purpose?

i. Romer v. Evans – CO laws re: gays not legitimate

ii. Any conceivable purpose is enough (US RR Retirement Board v. Fritz)

b. (2) Is there a reasonable relationship

i. laws will be upheld unless the gov’t action is clearly wrong, a display of arbitrary power, or not an exercise of judgment

ii. Substantial underinclusiveness is allowed b/c the gov’t “may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind” (RR Express v. NY)

iii. Substantial over-inclusiveness allowed (NY City Transit v. Beazer – methadone)

iv. Arbitrary & Unreasonable laws that therefore FAIL rational basis review

1. Ex: US Dept of Agriculture v. Moreno – food stamps/hippies

2. Ex: City of Cleburne TX v. Cleburne Living Center – group home for retarded

2. Race & National Origin (SS)

a. BEFORE 13th/14th Amendments, Court held that slaves were property, not citizens (Dred Scott)

b. Strict Scrutiny for discrimination based on race & national origin → gov’t must demonstrate that the discrimination is necessary to achieve a compelling gov’t purpose

i. Footnote 4 – discrete and insular minorities

c. Proving the existence of race/national origin classification

i. Classification on the FACE of the law

1. Race specific classifications that disadvantage racial minorities upheld in Korematsu (Japanese Americans during WWII - only instance)

2. Race Classifications burdening BOTH whites & minorities

a. Loving v. VA – unconstitutional to forbid interracial marriage

b. Palmore v. Sidoti – no deny custody when stepfather of different race

3. Laws requiring separation of the races – only allowed if meet SS

a. Plessy v. Ferguson – upheld separate but equal

b. Brown v. Board of Education – no segregation in public education

ii. Facially Neutral laws w/a Discriminatory Impact/Administration

1. Rule: require proof of discriminatory purpose (Davis) AND effect (Palmer)

2. Discriminatory purpose

a. WA v. Davis – police entrance exam

b. McCleskey v. Kemp – death penalty to blacks

c. City of Mobile v. Bolden – at large elections

3. Discriminatory effect - Palmer v. Thompson (swimming pools)

4. Rule: discriminatory purpose is proven by…

a. Showing proof that the gov’t desired to discriminate

b. It is not enough to prove that the gov’t took action w/knowledge that it would have discriminatory consequences (Feeney)

c. Ex: Feeney – hiring preference to veterans

d. Arlington Heights v. Metropolitan Housing – zoning low income

5. Discriminatory use of Preemptory Challenges is not permitted based on race (Batson) or gender (JEB) by the prosecutor (Batson), the civil litigant (Edmonson) and criminal defendants (McCollum)

a. Batson Test: whether impermissible discrimination in jury selection

i. Δ prima facie case of discrimination

ii. burden shifts to prosecutor to offer race-neutral explanation

iii. court decides whether explanation is persuasive

d. Remedies – the problem of School segregation

i. Brown v. Board of Education – ordered school desegregation

ii. Massive Resistance – ex: Cooper v. Aaron (Little Rock & National Guard, reasserted that Brown is the law and the state’s must follow the federal judiciary)

iii. District Courts have broad discreation to impose remedies in school desegregation cases (Swann v. Charlotte-Mecklenburg Board of Education)

1. Ex: Millikin v. Bradley – multidistrict remedy not generally allowed

e. Racial Classifications Benefiting Minorities (SS)

i. SS used to evaluate all gov’t affirmative action plans

ii. The use of race to benefit minorities in college and university admissions not allowed if using quotas or numerical qualifications

1. Grutter v. Bollinger – MI Law upheld under SS b/c race a factor, not the

2. Gratz v. Bollinger – MI undergrad point system invalidated

3. Seattle School District case – white/non-white determinations not allowed

3. Gender Classifications

a. Early cases approving gender discrimination

i. Bradwell v. IL – prohibited women licensed to practice law

ii. West Coast Hotel v. Parish – uphold minimum wage law for women

b. Evaluate Gender with Intermediate Scrutiny (Craig v. Boran)

i. Reed – invalidated gender classification (1st time) re: hierarchy of estates

ii. Frontiero – gender should be subject to SS (no to law re: women prove dependence)

iii. Craig v. Boren – Intermediate scrutiny (OK low alcohol beer law not okay)

iv. US v. Virginia – exclusion of women from VMI not okay & gov’t couldn’t demonstrate exceedingly persuasive justification

c. Proving the existence of gender classification

i. (1) can exist on the face of the law (the law in its very terms draws a distinction among people based on gender)

ii. (2) law is facially gender neutral, proving a gender classification requires demonstrating that there is both a discriminatory impact to the law & a discriminatory purpose behind the law

iii. Geduldig .v Aiello (deny pregnancy related benefits met rational basis review)

d. Gender classifications benefiting women

i. Based on role stereotypes – generally not allowed (Orr – alimony case)

1. MI University for Women v. Hogan (can’t exclude men from nursing school)

2. Michael M. v. Superior Court (statutory rape law against men only okay)

3. Rostker v. Goldberg (upheld male-only draft registration)

ii. Gender classifications benefiting women allowed when they are designed to remedy past discrimination or differences in opportunity

1. Califano v. Webster (Social Security Act benefits better for women = ok)

iii. Classifications benefiting women because of Biological differences between men & women allowed in Nguyen v. INS (favored mothers over fathers okay)

4. Alienage Classifications (SS)

a. Alienage discrimination = discrimination against non-citizens

i. 14th Amendment applies to non-citizens also (Yick Wo)

b. Strict Scrutiny as the general rule (Graham – can’t deny welfare to aliens)

c. Exceptions to the SS rule

i. (1) Alienage classifications relating to self-government & the democratic process (ex: state may deny aliens the right to vote or hold political office)

1. Foley v. Connelie – okay to require citizenship to be police officer

2. Ambach v. Norwick – okay to require citizenship to be elementary teacher

ii. (2) Congressionally approved discrimination (as a result of a federal law) subject to rational basis review

d. Undocumented aliens and E/P – evaluate under intermediate scrutiny

i. Plyer v. Doe (can’t prohibit free public education to alien kids b/c not their fault)

5. Discrimination Against Non-Marital Children (intermediate scrutiny)

a. If the law’s distinction is between marital & non-marital children, the law is likely to be invalidated (Levy – wrongful death)

b. If the law’s distinction is among non-marital children, the Court will apply intermediate scrutiny in evaluating the law (Lalli – okay to require non-marital kids to inherit from father only if paternity established pre-death)

6. Age Classifications (rational basis)

a. MA Board of Retirement v. Murgia – upheld state law requiring police to retire at age 50

7. Disability (rational basis) but ADA broadly prohibits discrimination

8. Wealth Discrimination (rational basis)

a. poverty is not immutable & most discrimination against poor is result of effects of law, rather than an product of intentional discrimination

9. Discrimination Based on Sexual Orientation (rational basis)

a. Romer v. Evans – invalidate CO law re: sexual orientation discrimination

i. animus against gays & lesbians, even when presented as purported “moral” basis for a law is NOT sufficient to meet rational basis

II. First Amendment

1. Freedom of Expression

a. Theories why should freedom of speech be a fundamental right? → self-governance/discovering the truth/advancing autonomy/promoting tolerance

b. Content Based v. Content Neutral

i. Content Based – presumptively invalid; strict scrutiny applied

1. laws that by their very terms distinguish favored speech from disfavored speech on the basis of views or ideas expressed

2. viewpoint or subject matter regulations

ii. Content Neutral – intermediate scrutiny applied

1. CN if it applies to all speech, regardless of the message

2. CN = both viewpoint and subject matter neutral

a. viewpoint neutral – ideology of the message

b. subject matter neutral – topic of the speech

3. Will be sustained under 1st Amendment if it (a) advances important gov’t interests (b) unrelated to the suppression of free speech, and (c) does not burden substantially more speech than necessary to further those interests

iii. Turner Broadcasting (cable TV must carry provisions were CN); Boos v. Barry (picketing near gov’t embassy); Republican Party of Minnesota v. White (elected candidates)

iv. problems in applying the distinction between CB and CN laws

v. Secondary Effects Doctrine - City of Renton (zoning ordinance re: adult theatres)

1. A facial CB regulation will be treated as CN if motivated by permissible CN purpose (such as controlling secondary effects)

2. The CN justification must be unrelated to desire to suppress speech & unique

vi. When CB okay

1. Finley – when gov’t subsidizing, may make choices based on content so long as viewpoint neutral (arts endowment case)

2. U.S. v. American Library Association – constitutional for Congress to condition federal funds on requirement for internet filters at public libraries

c. Vagueness & Overbreadth

i. Vagueness – if a reasonable person cannot tell what speech is prohibited/permitted

1. Coates v. Cincinnati – vague law re: sidewalk/annoying manner

ii. Overbreadth – regulates substantially more speech than the Constitution allows

1. run around standing requirements – 3rd person can bring

2. does not apply to commercial speech

3. Schad v. Borough of Mount Ephraim – ordinance prohibiting all live entertainment overly broad

iii. Laws challenged under both Vagueness & Overbreadth (facial)

1. Overbroad but not vague - Jews for Jesus (no 1st Amend. activity in airport)

2. Vague not Overbroad – ex: if prohibit speech not protected by 1st Amendment

2. Unprotected & Less Protected Expression

a. Generally must meet rational basis

b. But CB distinctions w/in categories of unprotected speech must meet SS (RAV)

c. Unprotected Speech = incitement of illegal activity, fighting words, obscenity

d. Less Protected Speech = commercial, some sexually oriented

e. Incitement of Illegal Activity – concern audience may follow speaker into lawlessness

i. Clear & Present Danger Test – Schenck (upheld leaflets re: draft)

1. Requirements (1) likelihood of (2) imminent (3) significant harm

2. Ex: Frohwerk v. U.S. (German newspaper); Debs (advocating socialism/criticize draft); Abrams (Russian immigrant leaflets criticizing US military efforts)

ii. Reasonableness Approach – upheld so long as prosecution reasonable (Gitlow – left wing manifesto); Whitney v. CA (communist labor party – case *discredited*)

iii. The Risk Formula Approach – whether the gravity of the evil, discounted by its improbability, justifies invasion of free speech as necessary to avoid danger (Dennis – teaching Marx)

iv. The Brandenburg Test – advocacy can be punished only if there is (a) imminent harm, (b) a likelihood of producing imminent illegal conduct and (3) an intent to cause imminent illegality (case re: KKK incitement)

1. Post-Brandenburg – mere advocacy of force not enough (NAACP v. Claiborne)

f. Fighting Words – concern that audience may be lawless in reaction to speaker

i. TODAY: fighting words law not likely to survive

1. If narrow – deemed impermissible CB restriction on speech

2. If broad – invalidated in vagueness and overbreadth terms

ii. Chaplinsky (Jehovah’s conviction upheld) – fighting words, which by their very utterance inflict injury or tend to incite are unprotected

1. 2 Situations of fighting words

a. (1) likely to cause a violent response against the speaker

b. (2) an insult likely to inflict immediate emotional harm

iii. Never overturned Chaplinsky, BUT never again upheld fighting words conviction

1. Instead, USSC employed narrowing, Vagueness/Overbreadth, and CB restrictions to avoid fighting words convictions

2. Ex: Narrowing -- Street (flag burn ok); Cohen (fuck draft jacket ok); TX v. Johnson (flag burning = protected speech)

3. Ex: Vague/Broad – Gooding – GA law prohibiting opprobrious/abusive language

4. Ex: CB restrictions - RAV – ordinance prohibiting hate speech/symbols

g. Hostile Audience

i. applied C&P Danger test in dealing w/how the gov’t may punish speech that provokes a hostile audience reaction

ii. Feiner – upheld conviction re: critical President speech where crowd angered

iii. TODAY - Police should 1st try to control the audience & stop the speaker only if crowd control impossible and threat to breach of peace is imminent

h. Racist Speech

i. Beauharnais – strong authority for gov’t to restrict racist speech (but ? good law today)

ii. When gov’t tries to regulate hate speech by banning it – problematic CB, vague, broad

iii. Virginia v. Black – unconstitutional VA law prohibiting cross burning w/intent intimidate

1. Held (1) gov’t can’t prohibit all cross burning, (2) burning w/intent of true threat not protected, and (3) need individual proof per case of true threat

i. Sexually Oriented Expression

i. Obscenity - unprotected (Roth)

1. obscene material appeals to prurient interest (not synonymous w/sex)

2. Paris Adult Theatre – arguable correlation between obscene material & crime

3. Miller - 3 part test for whether something is obscene (guidelines for court)

a. (1) material must appeal to prurient interest decided by a community standard, and

b. (2) patently offensive under the law prohibiting obscenity; and

c. (3) taken as a whole it must lack SLAP value

4. Should be a new exception for porn - MacKinnon

ii. Child Pornography – not allowed b/c gov’t interest in protecting children

1. doesn’t have to fit under Miller test for obscenity, just plainly NOT allowed

2. NY v. Ferber – upheld law prohibiting making/selling child porn

3. Aschcroft v. Free Speech – child porn only when real children used

iii. Protected but Low-Value Sexual Speech – do not meet test for obscenity and thus protected by 1st Amendment (but deemed low value and gov’t can regulate)

1. Zoning ok - Young v. American Mini Theatres / Renton – secondary effects

2. Nude Dancing – Barnes v. Glen – gov’t may completely ban nude dancing

a. Can regulate symbolic speech if (a) sufficiently justified w/in gov’t constitutional powers, and (b) furthers important gov’t interest unrelated to suppression of free expression, and (c) incidental restrictions no greater than essential

b. City of Erie v. Paps – upheld no nudity ordinance as CN b/c interest in combating secondary effects (no proof needed)

3. Should there be a category as low-value sexual speech?

iv. Gov’t Techniques for Controlling Obscenity & Child Pornography

1. Gov’t can prohibit sale/distribution/exhibition of obscene material even to willing recipients, BUT it cannot prohibit/punish private possession (Stanley), except for child porn (Osborne)

v. Profanity & “Indecent” Speech/Expression – generally protected, but exceptions

1. Cohen v. CA (fuck draft jacket ok) – strongest protection for profanity

2. Broadcast Media - FCC v. Pacifica (Carlin filthy words)

a. gov’t can prohibit profane/indecent speech b/c unique medium

3. Telephones - Sable Communications (can’t eliminate dial-a-porn)

4. The Internet – Court has been very protective

a. Reno v. ACLU – gov’t can’t restrict transmission of obscene material over the internet by restricting availability to adults & children

b. Ashcroft v. ACLU- COPA regulating commercial sex sites by credit card requirements was a CB restriction on speech and failed SS (filtering ok)

5. Cable TV – can have consumer ask to restrict channel, but that’s all

j. Commercial Speech

i. Rules:

1. Speech that does no more than propose a commercial transaction is protected (VA State Board Pharmacy - ads with drug prices ok)

2. Advertising illegal activities or false/deceptive ads not protected (VA Board)

3. true ads that inherently risk deception not protected (Freidman - trade names)

4. Overbreadth doctrine does not apply to commercial speech regulations

ii. Commercial speech = proposes a commercial transaction (VA Board), expression related solely to economic interests (Central Hudson)

1. 3 Characteristics of Commercial Speech (Bolger v. Young’s Drugs Products)

a. (1) advertisement of some form

b. (2) refers to a specific product

c. (3) speaker has an economic motivation for the speech

iii. Test for evaluating regulation of commercial speech (Central Hudson) gov’t burden

1. (1) is the advertising false/deceptive or illegal

a. if Yes – unprotected / if no = see 2nd prong

2. (2) gov’t restriction justified by substantial gov’t interest (ends) (intermed S)

a. If Yes – see 3rd prong / if no = unprotected

3. (3) law directly advances the gov’t interests (means) (intermediate S – fit)

4. (4) regulation of speech no more extensive than necessary to achieve the gov’t interest (means) (intermediate scrutiny) (narrowly tailored – Fox)

k. Conduct that Communicates (expressive) – words, symbols, conduct, marching, picketing

i. Methodology

1. apply the Spence Test

a. 2 Factors whether conduct is communicative

i. (1) intent to convey a particularized message

ii. (2) substantial likelihood the message would be understood by those who view/receive it

2. apply the O’Brien Test (law prohibiting burning draft card okay)

a. A gov’t regulation is sufficiently justified if…

i. Gov’t regulation is w/in the constitutional power of the gov’t (looking for neutral articulation of gov’t power)

ii. Gov’t interest is unrelated to the suppression of free expression [CB or CN?]

1. If Yes (CN) → continue w/prongs 3 & 4 (applying intermediate scrutiny analysis for CN regulations)

2. If No (CB) → apply strict scrutiny!

iii. Ends: does it further an important or substantial governmental interest

iv. Means: is it an incidental restriction on 1st Amendment expression

ii. Ex: flag burning – constitutionally protected form of speech (TX v. Johnson)

iii. Ex: spending money = political speech (Buckley v. Valeo – contribution limits and disclosure requirements okay, but expenditure limits invalidated)

3. FORUMS available for expression

a. Overview: scrutiny for the forum controls, regardless of whatever else you have

i. summary of forum from Perry

ii. Public Forum - “streets, parks, and sidewalks”

1. Traditional: Hague (can meet in street/park w/o permit); Schneider (leaflets)

2. Modern Examples: Mosley (picketing by school); Hill (abortion picket ok TPM)

3. CB → strict scrutiny

a. the state must show the regulation was necessary to serve a compelling gov’t interest and is narrowly tailored to achieve that end

4. CN → time, place, manner (TPM)

a. Intermediate Scrutiny - Gov’t can regulate if CN, or reasonable TPM that serves important gov’t interest, narrowly tailored, & leaves open adequate alternatives for speech (Hill)

5. Licensing/Permit – ok if serve imp purpose & give clear criteria/no discretion

a. Cox (ok limit 1 parade at a time); Forsyth (fee up to $1000 not ok)

6. *Gov’t need not use the least restrictive alternative, though must be narrowly tailored (Ward v. Rock – concert in CP must use city sound engineers)

iii. Limited/Designated Public = gov’t property voluntarily opened for expressive activity

1. Gov’t can close down the forum but as long as it remains open, it is bound by the same standards as a traditional public forum

2. CB → strict scrutiny (see above)

3. CN → time, place, manner

4. Ex: Widmar – school/university opens to student groups, have to allow religious

5. Can limit public forum, so long as no viewpoint restriction & reasonable (Good News Club)

iv. Non-public Forum (still public)

1. gov’t property where okay to reserve for non-speech uses, so long as it is viewpoint neutral, reasonable, and not an effort to suppress expression

2. Adderly (prison); Greer (military); Lehman (bus ads); Kokinda (post office); Krishna (airports); Forbes (candidate debate)

v. Private Property – there is no right to use private property for speech purposes!

1. privately owned, so no state action & ϖ Constitution does not apply

4. Religion

a. What is religion?

i. Attempt to define religion under the Selective Service Act - US v. Seeger

ii. Requirement for sincerely held beliefs - US v. Ballard

iii. Relevance of Religious Dogma and Shared Beliefs

b. Free Exercise of Religion

i. freedom to believe – absolute right / freedom to act – not absolute

ii. The Current Test

1. Employment Division v. Smith – distinctions between gov’t actions that burden religion and invoke SS, and gov’t actions of a neutral application (like drug laws) that incidentally affect the F/E of religion

2. The Law BEFORE Smith

a. Sherbert v. Verner

b. Gov’t Benefit Cases

c. Compulsory Schooling

d. Cases Rejecting Exemptions Based on the F/E Clause

3. The law AFTER Smith

a. Church of Lukumi Babalu Aye – applied SS → unconstitutional

iii. Is denial of funding for religious education a violation of F/E of Religion?

1. Locke v. Davey – upheld WA scholarship excluding devotional degrees

c. Establishment Clause

i. Competing Theories of the Establishment Clause

1. Strict Separation of church & state (Jeffersonian)

a. Lemon Test – step by step way of separating church & state

i. (1) secular purpose – statute must have secular legislative purpose

ii. (2) secular effect – principle or primary effect must not advance nor inhibit religion

1. can only accommodate to allow F/E

iii. (3) excessive entanglement – must not foster this

2. Neutrality Theory – no endorsement of religion

3. Accommodation – no “coercion”

4. Theories applied: County of Allegheny v. ACLU (holiday display at court)

ii. Gov’t Discrimination Among Religions will only be allowed if it meets SS

1. If there is not discrimination, evaluate under Lemon

2. Larson v. Valente – unconstitutional charitable orgs funding requirements

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download