Professional Documents
Culture Documents
A. Articles of Confederation
1) They were the original source of our Constitution.
a. In place from 1781 – 1789.
b. Nation’s first effort to create a document that would represent the
charter of the US.
c. Enacted b/c the original states believed they needed a unifying force
that would allow them to deal with common domestic and foreign
problems.
d. But, DUAL SOVEREIGNTY remained critical.
e. Because of the strong desire to retain sovereignty, the forming
members didn’t create an executive branch in the AOC nor a national
judiciary.
f. The AOC was in place for about 7 years and just wasn’t working.
i. In large part, the reason for failure was jealousy among the
states.
1. i.e., NY has harbors that were choice location for
commerce. So, if another state wanted to use, NY would
tax them. This created much dissension and the loose
confederation was beginning to disintegrate.
g. The framers realized that the specific reason a Revolution was just
fought for, was falling apart at the seams.
i. Thus, they decided to hold a Constitutional Convention to patch
up and tweak the disputes b/n and among the members of the
Confederation.
ii. The Convention was not intended to create a complete overhaul,
but it did.
iii. The result, was the original text of the Constitution. (Doesn’t
include any amendments).
1. Original Constitution – 1789
2. Amendments – 1791
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B. Theory of Federal Constitution
1) Two Basic Schools of Thought:
a. Anti-Federalist/Jeffersonian School
i. Cornerstone is civic virtue – doing things for the common good.
1. This may be flawed as a basic premise.
2. Homogeneity.
a. Unfortunately – this applied only to white males.
ii. Anti-federalists would prefer to have no representatives – but
people run the government themselves.
1. This wouldn’t work – too many people.
b. Federalists
i. Prevailing view.
ii. Denounced civic virtue b/c most often people act out of self-
interest.
iii. Recognized FACTIONS would form predicated on self-interest,
so decided to create layers of government.
a. Horizontal – Executive, Judicial, Legislative AND
b. Vertical – Dual Sovereignty, Separation of Powers
i. These checks make it harder for
government to work.
C. Judicial Review
1) GENERALLY
a. Is the review by the judiciary of:
i. Federal Law/Regulations/Executive Orders
ii. State Laws/Executive Orders
iii. Cities/Municipalities/Local Laws/Ordinances
b. Judicial review is the power of the judiciary to declare null and void a
law made by any governmental body that makes any law if the court is
convinced the law conflicts with some part of the Constitution.
Marbury v. Madison
i. Rationale is that Constitution comes from the people and is t/f
the supreme law of the land b/c it comes from the people and
trumps all other laws.
c. TEXTUAL BASIS:
i. The Legislative Branch makes the law, the Executive Branch
enforces it – so it follows that the Judicial Branch makes it.
d. There must exist a conflict b/n the law and some provision of the
Constitution in order to be able to go to cord and argue the law is
unconstitutional.
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e. Countermajoritarian Difficulty
i. Judicial review allows one judge to be almost a one person
faction. The majority makes the law and one person overturns it.
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b. CONSTITUTIONAL TEXT
i. Courts and commentators generally agree that the text of the
Constitution is binding on the courts.
ii. However, there are counterexamples even here.
1. i.e., the 1st Amendment appears to only apply to Congress,
but courts apply free speech principles to the executive
and the judiciary too.
c. TRADITION; PRECEDENT.
i. Sometimes the scope of a provision is determined by reference
to a tradition and the Court’s own precedents. Under this
approach, constitutional law operates as a form of common law,
developing over time, but constrained by the past.
d. PREVAILING MORALITY OR SOCIAL CONSENSUS.
i. An open-ended constitutional provision might be given content by
referring to prevailing morality to some form of consensus.
ii. However, this possibility raises two questions:
1. It is hardly clear that judges are better than legislators
as registers of social consensus.
iii. In light of the fact that the Constitution, or at least the bill of
rights, is often regarded as a shield against social consensus, it
might be odd to suggest that its content derives from that
consensus.
e. CONCEPTIONS OF JUSTICE; PRINCIPLE.
i. Courts have certain capacities for dealing with matters of
principle that legislatures and executives do not possess.
ii. Some, however, argue that judges are far from a cross-section
of the demography of America.
b. Nonetheless, the Supreme Court may review state court opinions, but
only to the extent that the decision was based on federal law.
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i. See Martin v. Hunter’s Lessee (Court said they could exercise
jurisdiction over decisions of state courts in criminal cases and
in cases in which the state was a party).
c. JUDICIAL EXCLUSIVITY
i. ONLY the Court has the power to interpret the Constitution, so
when there exists a conflict b/n the Constitution and a statute,
the courts must allow the Constitution as they interpret it to
prevail.
b. Self-Executed Provisions
i. “No brainers” b/c they are plain on their face and thus no real
interpretation involved.
c. Majestic Generalities
i. “Studied Imprecisions” – These are kind of like fuzzy words.
ii. For example:
1. Due Process, Equal Protection, Liberty, Unreasonable
Search & Seizure, Speech, Establishment of Religion,
Free Exercise of Religion
iii. These will be interpreted differently depending on judge’s
judicial philosophy.
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i. Congress may limit the Court’s appellate jurisdiction by deciding
what types of cases the Supreme Court may hear.
ii. In theory and textually it is important, but in practice – not
really all that practicable.
iii. For example, consider the Essential Functions Hypothesis.
1. States that Congress cannot destroy the essential role of
the Court in the Constitutional plan.
2. Otherwise, the Court would be read out of the
Constitution and this would ignore the framers’ intent.
2) PEOPLE/PUBLIC OPINION
a. This is the concept of legitimacy.
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B. Self-Imposed Limitations on Judicial Review
These are
THRESHOLD ISSUES
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LIMITS AND EXCEPTIONS TO STANDING
1. The Citizen Suit Provision
a. It provides, in pertinent part, that “any person
may commence a civil suit on his own behalf (A) to
enjoin any person, including the US and any other
governmental instrumentality or agency…who
alleged to be in violation of any provision of this
chapter.”
i. Would appear to mean that anyone could
bring an action – irrespective of the
standing requirement.
b. BE CAREFUL:
i. Still MUST have suffered an injury in fact
AND be able to meet the prongs of
causation and redressability.
2. The Third Party Rule
a. A person may NOT bring suit on another’s behalf
(except for legal guardians) nor for the public at
large.
b. EXCEPTION:
i. An association is generally allowed to bring
suit on behalf of one of its members.
3. No Taxpayer Standing
a. Generally one who claims his injury arises from his
status as a federal taxpayer does not have
standing.
b. EXCEPTION:
i. If a tax or spending program violates the
Establishment Clause.
c. State and municipal taxpayers probably have
standing to litigate the legality of state
expenditures, but a municipal taxpayer definitely
does to litigate expenditures of city.
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b. POLITICAL QUESTIONS – The Court will not hear a case if it
believes the issue involves a question best decided by another branch of
government, it is a separation of powers thing.
• In reality, political questions are rare.
• Factors that may influence the Court are: (LAF for Political
Questions)
1. Constitutional commitment of issue to another branch of
government. [Impeachment]
2. Lack of judicially manageable or discoverable standards.
Baker v. Carr [No redressibility]
3. Inability to decide case w/o making a policy decision best
left to other branches.
4. A decision would show lack of respect for another branch.
5. Unusual need to adhere to a previous policy decision.
[Ex Parte McCardle]
6. Possibility of embarrassment to government from
separate pronouncements on the same issue by different
branches.
7. Impeachment [US v. Nixon (the judge)]
a. Court is still lurking here. They say if Congress
doesn’t do it right, we’re still here to help.
8. Guaranty Clause arguments. [Baker v. Carr]
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3. Exception: Collateral Consequences
A case will NOT be moot if even though the
controversy might be decided, there are still
collateral consequences that might be adverse to the
D.
• i.e., A convicted criminal challenges the
constitutionality of his sentence, but the
sentence runs before his case is heard. The
collateral consequences might be loss of the
right to vote, difficulty in obtaining
employment, etc.
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Rights Protecting Provisions in the Constitution
* * *
3) Individuals have the right to sue the actor if the actor is acting on behalf of
the government. (i.e., police, govt. agencies, Amtrak, judges, prosecutors,
public school teachers, etc.) and does something to us as individuals that
violates the Constitution and we are injured.
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THEORIES OF CONVERSION FOR NONOBVIOUS STATE ACTION
1. Public Function
Where a function that is normally the exclusive and
traditional power of the state is delegated to a
private actor. (Flagg Bros.)
Private person essentially becomes an agent of the
state.
Ex: company town, park
Note: Very few functions exclusive to the state
(military, elections).
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3. Government Coercion or Significant Encouragement
• If the state exercises coercive power over the actor
or significantly encourages his behavior, it may
convert the action into state action.
• Note, however, acquiescence or approval of a private
party’s actions is NOT sufficient to convert the
action. (Blum)
Shelley v. Kraemer
The sellers were private actors that need to be
converted. The lower court is making the willing seller
commit and act of racial discrimination – this established
the conversion b/c of coercion. Judicial enforcement of a
private restrictive racial covenant is state action for
purposes of the 14th Amendment.
Misc.
Granting of licenses by the state is not encouragement or
entanglement.
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Power Granting Provisions in the Constitution:
Congress and the Executive
* * *
A. Generally
1) Congress’ Power is Deriven From...
a. Limited Enumerated Powers
i. Congress must point to power and tie it to text of Constitution.
b. Federalism
c. Strands of Federalism
i. Commerce Clause
ii. 14th A, Sec. 5
10th Amendment is a iii. 10th A Enclave
LIMIT 1. If the federal government doesn’t have it – it doesn’t
on Congress’ Power
have it. The power resides with the states.
iv. 11 A Enclave
th
EXAM TIP
Threshold Issue:
Any time you have a question in which Congress is doing something, first ask yourself:
“Can what Congress is doing be justified as an exercise of the Commerce Power?”
Most of the time the answer is “yes.”
1) Generally
a. Gives to Congress the power to regulate INTERSTATE COMMERCE
(ISC).
Note: Lopez reigned in the power of Congress by requiring the
regulated activity must have a substantial economic effect on ISC.
c. Little deference is given to Congress anymore, simply b/c they may have
believed the activity has the requisite substantial effect on ISC. The
Court will decide this for themselves.
2) What is ISC?
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a. ACTS of ISC
The most obvious, a person in one state sells something to a person
in another state.
b. CHANNELS of ISC
Highways, waterways, internet, air traffic.
c. INSTRUMENTALITIES of ISC
People, machines, trucks, trains and other “things” used in carrying
out commerce.
(Ex: Congress could probably say that every truck must have a
specific safety device, even if the particular truck in question is
used exclusively w/in a single state).
d. INTRA-STATE ACTIVITIES
Which have a substantial effect on INTER-State commerce.
US v. Lopez
Congress made it a federal crime to possess a firearm in or near a school.
The act applied even if a gun never moved in or affected ISC. HELD
Statute went beyond Congress’ Commerce Power b/c the activity being
regulated did not have a substantial effect on ISC.
US v. Morrison (VAWA)
Congress says that any woman who is the victim of a violent gender-based
crime may bring a civil suit against the perpetrator in federal court. HELD
Congress went beyond Commerce Power b/c violence itself is not a
commercial activity and the connection b/n gender-based violence and ISC
is too attenuated for the violence to have a substantial effect on ISC.
NY v. US
Congress provides that each state must arrange for the disposal of toxic
waste generated w/in its borders, or else be deemed to “take title” to the
waste and thus be liable for tort damages arising from it. HELD
Congressional scheme violated 10th A b/c Congress may not force a state to
enact and enforce a federal regulatory program.
Printz v. US
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Congress can’t order local sheriffs to perform background checks on
applicants for handgun permits.
If YES
2) 10th Amendment
a. NO DEFENSE to treaties b/c the people gave this power to the US.
(Missouri v. Holland)
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b. However, treaties and laws enacted pursuant to them generally may
NOT violate other Constitutional protections such as the BOR 1-8.
(Reid v. Covert)
b. SPENDING POWER
1. The exercise of the spending power must be in pursuit of the general welfare.
a. This is easy – almost everything fits here.
3. The condition(s) must be related to a federal issue and there must exist a proximate and causal
connection b/n the condition and the general welfare.
4. Condition must not violate any other Constitutional provision – especially the 10th Amendment.
Congress may purchase regulation but need to meet the four requirements.
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F. Power under the Reconstruction Amendments
1) Congressional Enforcement of Civil Rights
a. 13th Amendment abolished slavery and involuntary servitude.
• Is NOT explicitly limited to government action.
• Permits Congress to stamp out the “badges of slavery.”
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VII. IMPLIED LIMITS ON CONGRESS’ POWER
A. Generally
1) Congress may have its scope and power present when it makes a law.
2) Some of the implied checks are in the Constitution. (freedom of speech, etc.)
a. So, even though something may be w/in Congress’ power, it may
nonetheless be unconstitutional b/c it violates another part of the
Constitution.
B. 10th Amendment
1) Generally
a. Congress generally may not legislate in an area reserved to the states,
nor force a state to regulate.
New York v. US
Challenge to nuclear waste regulation act that Congress required states to
adopt after conferring with all legislatures and they approved it. New York
alleged the take title provision of the Act violated the 10th Amendment and
notions of federalism. The Court agreed. Thus, even if the states acquiesce to
the imposition of the regulatory scheme or the enacting of a law – it is still
unconstitutional.
Printz v. US
Challenge by CLEO of Arizona to Brady Bill requirement that he participate in
the enforcement of the anti-gun legislation by conducting background checks
until the national system is up. The Court held that violated federalism and the
10th Amendment, stating that Congress had the power to enact the Brady Bill,
but the federal government could not make the states do the work – they have
to do their own work.
1. The Federal government MAY NOT direct, commandeer, coerce or compel a state to do something.
2. The Federal government MAY influence, encourage and urge a state to do something by the use of
incentives like federal funding.
C. 11th Amendment
1) Generally
a. 11th Amendment basically creates sovereign immunity for the states to
be free of lawsuits brought against them in federal courts for money.
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VIII. THE DORMANT COMMERCE CLAUSE
B. Threshold Issues
1) Is there Preemption?
a. If YES State law will fail.
ALWAYS check
first to see if there b. Three Types:
is some type of
preemption – b/c i. Express
state law will then
fail. 1. A statute that explicitly indicates a federal law
preempts.
ii. Field
1. Congress has made the decision to occupy the entire
field so there is no room for the states to supplement it.
a. i.e., environmental regulation.
iii. Conflict
1. A conflict exists b/n state and federal law.
2. Due to the supremacy clause – federal law prevails.
3. There must be a physical impossibility to comply with
both laws at the same time.
(Ex: FDA requires a certain label on a box, state requires
a certain label on the box. Can’t have both so FDA wins).
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C. Discrimination Against Out-of-Staters
1) Generally
a. Watch for intentional discrimination against out-of-staters.
c. Examples:
• Embargo of Natural Resources – laws that prevent scarce natural
resources from moving out of state are closely scrutinized (i.e., a
state charges higher taxes on oil destined for out-of-state than
for in-state use)
• Environmental Regulations – States may not protect their
environment at he expense of their neighbors.
Phila. v. New Jersey
NJ state law prohibited importation of out of state waste claiming
environmental concerns. Waste = Commerce. NJ was not a market
participant. Court found simple economic protectionism. The law
benefited the in state residents by stabilizing the cost of disposal and
discriminating against out of state dumpers. Created an embargo that
went against united and national market theory.
• Do the Work in Our State Laws – Statutes that pressure out of
state business to perform certain operations within the state are
likely violative of the DCC.
2) Rare Exception
a. If the state has no other way to protect the health, safety and
welfare of its citizens the law may be allowed to stand. (Ex: quarantine
laws). Note, however, often used as a smokescreen.
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Criteria for Determining whether the State Law Violates the DCC
(Two Frameworks)
Does the state law favor in-state interests at the expense of out-of-state competitors?
If yes then virtually per se unconstitutional. (due to above-mentioned evils)
Rare Exception: If the state has no other way to protect the health and safety of its citizens
the law may be allowed to stand (i.e., quarantine laws).
Note:
Not all state laws are economic protectionism – but may still violate C/C.
Thus, to determine the constitutionality of these type of laws, we use the Pike Test.
LAF
1) The burden placed on ISC by the law may not be excessive in relation to local putative benefits.
2) No less burdensome alternative may exist. If it does, the current law will be invalidated.
LAF for DCC
Exceptions to DCC
1) Quarantine Laws
1. Does the DCC apply at all -- is there a state law in the commerce area?
a. State makes a law about diseased things entering their borders This is OK.
2) Market Participant
2. Is a.
theIfstate regulating
the state or participating?
acts as a market participant, it MAY favor local over out-of-state interests. b/c
If state
a. they is aas
are acting market participant
a private actor. DCC does NOT apply.
b.b. EXAMPLE
Proceed to LAF for P&I Clause.
i. Government owns a cement company, and in connection with buying and selling
cement, government is acting. Thus, they are a participant and not a regulator.
3. Was thereii.a preemption
Because they problem?
aren’t regulating, they aren’t subject to the C/C.
a. If yes Proceed to LAF for preemption.
3) Preemption
If a law passes the DCC challenge, but the law affects individuals, 23
apply the Privileges & Immunities LAF!!!
EXAM TIP
DCC does NOT deal with Congress’ power to make a federal law.
If you see a federal law on the exam, the question is whether Congress had the power to make the law.
The issue would not then be the DCC.
2) Framers did this to prevent tyranny. They also thought it would be more
efficient in terms of getting work done.
2) Executive Powers
a. Execution of Laws
i. May only carry out the laws – he CANNOT make the laws.
1) Ex:
a. Youngstown (Steel Case)
• On the Executive Power
o The Gloss (Frankfurter’s concurrence)
said the executive power has a gloss
that means more than mere executive
power. Nonetheless, gloss doesn’t reach
far enough here to justify Truman’s
actions.
o The Twilight Zone (Jackson’s
concurrence) three situations when the
President acts:
1. Acting pursuant to Congress –
express or implied
2. Contrary to Congress’ Wishes – steel
case
3. “Twilight Zone” – no law supports or
prohibits.
b. Dames & Moore v. Reagan
i. Pres. froze assets during Iranian war crisis.
Court said ok – big difference b/n this and
steel case is that it involved foreign power.
c. Line Item Veto unconstitutional b/c violates the
Presentment Clause (Clinton v. City of NY)
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1) BUT Senate must approve by majority vote.
ii. If an inferior officer, Executive may only appoint if Congress
has delegated that power to him.
1. Does the limitation impede the Executive’s power to perform his constitutional duty?
(Vague – But all we Have)
a. If No It’s OK.
2. Some limitation is OK, so long as it doesn’t impede, unduly trammel executive authority,
impermissibly burden Presidential power to control or supervise the independent counsel or
sufficiently deprive the President control over the independent counsel.
C. Executive Privilege
1) Generally
a. Presidents have a qualified right to refuse to disclose confidential
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information relating to the performance of their duties. This is an
implied right and arguably promotes candor.
BUT
This privilege – since qualified – may be outweighed by other compelling
government interests.
THEN…
The court performs a balancing test b/n:
US v. Nixon
Need for President’s evidence in a criminal trial outweighed the
President’s vague need to keep information confidential.
HYPO/Current Application
d. Enron Debacle
i. The GAO wants to know who was present and what was discussed
at the Energy Summit and the Pres. & VP are invoking their Exec.
Privilege.
e. OFFICAL ACTS:
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i. The President has absolute immunity from civil liability for his
official acts. [Fitzgerald Doctrine]
f. UNNOFICIAL ACTS:
i. There is no immunity from President’s unofficial acts, including
those taking place before he took office. (Clinton v. Jones).
g. CRIMINAL ACTS:
i. No immunity.
E. Impeachment
1) Generally
a. HOUSE
i. Sole power of passing articles of impeachment – need 2/3 vote.
b. SENATE
i. Sole power to try the impeachment – need 2/3 to convict.
c. REMOVED FOR:
i. “…shall be removed from office for Treason, Bribery or
other High Crimes and Misdemeanors.”
A. Generally
1) Over time, Congress has abdicated/delegated/surrendered much of its
power due to:
1. Workload/Efficiency
2. Expertise
3. Accountability
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B. Federal Administrative Agencies
1) Generally
a. Housed within the Executive Branch.
c. Immense power -- some call them the fourth branch -- not only not
within the Constitution – but it is unchecked raw power.
If the officer appointed is not a policymaker – but rather – a policy implementer (not at the
higher end of the pecking order) they are an inferior officer.
EQUALITY
ThisAND THElineCONSTITUTION
is not a bright rule.
* * *
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XI. EQUAL PROTECTION UNDER THE LAWS
b. FEDERAL ACTION
The “Equal Protection Component” of the 5th Amendment’s Due
Process Clause.
e. any “person” – it does not say citizen – this would include the terrorists.
Gaines (1938)
Separate but equal starts to erode here. Univ. of MO had a law school
that was racially segregated. Gaines wanted to go to law school in MO, and
MO’s Board say no, but we’ll pay for you to go out of state. Court held
this UNCONSTITUTIONAL, indicating it was denial of a legal right to the
enjoyment of a privilege which the state had set up.
Brown I
Court held separate is inherently unequal. This is a HUGE LEAP!
Interesting to note that the Court based its finding on social science – this
created a lot of controversy.
Keyes (1973)
This was the first northern desegregation case. The district court found
that the Denver school authorities had used gerrymandering attendance
zones, school constr. policies and other devices to purposely keep one part
of the city’s school system racially segregated. However, even though the
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discrimination was isolated to one part of the system – it may nonetheless
serve as a predicate for systemwide relief. This is the KEYES
PRESUMPTION. Can lead to interdistrict remedy if intentionally
segregative action in a meaningful portion of school board system (i.e.,
White Flight).
Strauder
blacks expressly disadvantaged on the face of jury restrictions
Koramatsu
where Japanese were discrim. against based on their race
c. Segregation Laws
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B. Government Classifications and the Concept of Equal Protection
1) Generally
a. The EPC has been expanded (beyond race) to include:
1. Suspect Groups
a. Involves traits that are mostly immutable (gender,
national origin, age, birth, physical or mental
disability, lifestyle and sexual orientation)
2. Fundamental Rights
a. Procreation, voting, family living arrangements,
etc.
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BLUEPRINT/LAF FOR DECIDING EQUAL PROTECTION CHALLENGES
EXAM TIP
A law could create several classifications –
which would affect the level of review.
Mention each on exam.
Suspect Classifications
Triggers heightened scrutiny.
A classification is suspect if it is a discrete and insular minority
(FN 4, Carolene Products):
NOTE:
NOTE: Classifications based on mutable characteristics
“In spite of” does not (social, economic) will generally get low level
create an invidious review.
purpose.
Facially Racially Neutral Law with Disproportionate Impact
“Because of” does
The challenger must prove an invidious purpose – otherwise – RB
create an invidious review.
purpose.
If statute is race-specific Strict Scrutiny
If statute is not race-specific RB.
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Finding an Invidious Purpose/Village of
Arlington Test
1. Events leading to the decision to implement.
2. Procedural and substantive irregularities and departures.
a. Ex: No public hearings.
b. Ex: Law hasn’t changed in 50 years.
3. Legislative History
c. Comments by lawmakers
4. Historical Context
5. Statistics
a. Not dispositive, must be in context.
Loving v. VA (1967)
Mr. Loving married a black woman in violation of VA’s
antimiscegenation law. The state’s claim was that the law was
sound on the fact that blacks and whites would be punished equally
under it and that this was sufficient. The law was arbitrary and
invidious. HELD No legit. purpose for having such a law. All
racial classifications get SS.
Conceivable Purpose
You may challenge saying this is what I think it means. It does not
matter if it is or is not the reason, if it is plausible, can treat it like
that is how it was made.
“Rational Lawmaker Model” – Looking at history, tradition & culture.
Unconstitutional Purpose
Harming a politically unpopular group is unconstitutional (hippies, gays,
mentally retarded). If the classification was created for reasons of
personal animus, the purpose is per se unconstitutional.
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If yes end of story. Romer, Cleburne, Moreno
RB w/Bite
If the law targets politically powerless, unpopular group, it
can be asserted that it is an illegitimate purpose.
Intermediate Review
Substantial relationship to an important government purpose.
This is low deferential review (can have bite).
END OF BLUEPRINT/LAF
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C. Race-Conscious Affirmative Action
1) Generally
a. Involves laws that facially benefit a person on the basis of race (racial
minorities).
d. TYPES
• Quotas
Almost always struck down. It is a racially-based number of
admissions slots, dollar amounts or other “goodies” set aside
for minorities.
• Selective/Preferential Admissions (Bakke)
Any scheme which gives preferential treatment to a racial
group for admission to a public univ. must get SS. It’s
essentially a quota.
1. Selective for socioeconomic reasons ok – even if turns out
a large % are black b/c that wasn’t the intent.
• Minority Set Asides (Aderand)
Some % of publicly funded contracts are reserved for
minority owned businesses. SS and generally struck down.
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LAF for Affirmative Action
NOTE: Many argue Croson sounded the death knell for affirmative action.
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Court invalidated city requirement that homes for the mentally retarded get a special permit
(but not for frat houses) was not rationally related to the government purpose of safety and
property values.
Korematsu v. US
Court upheld the internment of Japanese Americans during WWII. A rare case of a compelling
reason (preventing sabotage and espionage during war) but dissent argued it was not narrowly
tailored.
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Summary LAF for E/P
5)
6)
1. Government Action?
7)
2. 8)
Classification?
9) a. Suspect Class (Race always is)
10)b. Facially neutral w/disproportionate impact?
11) i. Need invidious purpose.
12)
3. Government
13) Purpose?
14)a. Actual
15)b. Conceivable
c. Unconstitutional
16)
17)
4. Level of Review
18)a. Rational Basis
19) i. Legitimate purpose, rationally related
20)OR
21) ii. RB w/Bite
22) 1. Politically unpopular group, product of animus
23)b. Strict Scrutiny (Suspect Class & Fundamental Rights)
24) i. Compelling interest, narrowly tailored
25)
5. Beneficial to Minority/Affirmative Action?
26)
a. Always SS.
27)
28)
D. Gender Classifications
STANDARD/RULE:
To survive equal protection review, a gender-based classification that burdens women must
demonstrate:
NOTE
If the law is facially neutral, the challenger must show
an invidious purpose to discriminate on the basis of gender.
40
Disparate impacts on women are alone insufficient to trigger intermediate scrutiny.
2) “Benign” Classifications that BURDEN MEN and BENEFIT WOMEN
a. ALL gender classifications get intermediate scrutiny, but those designed to
remedy past discrimination and to compensate women for past difficulties will
usually pass review.
E. SEXUAL ORIENTATION
1) Generally
a. NOT a suspect class.
b. LEVEL OF REVIEW
Status v. Conduct Target
i. Status:
1. It appears that if the law classifies b/c of homosexuality
as a status, it will get RB w/bite review.
ii. Conduct:
1. If, however, the law classifies based on homosexual
conduct, it will get deferential RB review.
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F. ALIENAGE CLASSIFICATIONS
1) Generally
a. Even though aliens are not citizens, they are =nonetheless protected by
the 14th Amendment.
b. Why? Because the EPC prohibits denial by states of “any person” the
equal protection of the laws.
c. TYPES OF ALIENS
1. Lawful (documented)
a. Political Asylum
b. Marriage
c. Visa
d. “Green Card”
2. Unlawful (non-documented)
2) Level of Review
a. Federal Laws
Rational Basis Review Due to textual power.
b. State Laws
If a state law is involved, must determine if alien is burdened with
respect to:
a. Entitlements (social/economic)
Strict Scrutiny
SUGARMAN EXCEPTION
(APPLY THIS WHEN LOOKING AT FUNCTION)
Government has the right to define their
political community. May not be able to define
at lower level – but as you move up the ladder –
yes. Functions that go to the heart of
representative government fall here.
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Rationale It could be risky for a non-citizen
to perform an important political function.
1) The classification must be fairly specific as to what positions or functions are denied to
aliens, and
2) The position must have a good amount of discretionary power for executing, formulating or
reviewing broad public policy, and
3) The position must go to the very heart of representative government.
43
SAMPLE SHORT ANSWER QUESTION TO APPLY LAF:
Federal law requires airport screeners to be US citizens. 20% of nations 28K screeners are not citizens. If you
represent an alien screener, who has worked at LAX for more than 2 years (and he must wait for 2 years before he
can become a citizen). He comes to you for legal advice – what do you tell him?
1) Federal law so a higher level of review.
2) Also, using the Sugarman exception, you could argue that citizens are likely to be more loyal than aliens. You
wouldn’t want to have an alien screening airline baggage.
3) Bottom line, he doesn’t stand much of a chance.
3) Illegal Aliens
a. Generally, laws that discriminate against illegal (undocumented) aliens will only
get RB Review.
b. The justification is that illegal aliens are not a suspect class b/c they
voluntarily chose to enter the country illegally.
Children of illegal aliens are a suspect class, and laws burdening them
will get intermediate scrutiny, or at the very least rational basis
w/bite.
3) If a STATE LAW denies legal aliens government employment usually SS Review UNLESS
a. Sugarman Exception
i. Involves the formulation, execution or review of “broad public policy” OR
ii. Involves functions at the very heart of representative government OR
iii. Is a very high level position with a great deal of discretion.
4) If a legal alien is denied private employment and state action is demonstrated SS Review.
5) If an ILLEGAL ALIEN is denied anything by either state or federal law RB Review UNLESS
a. Illegal alien’s child – may be a “quasi-suspect class” and t/f get IS or RB w/Bite.
Originalists hate this process and claim that the courts are imposing their own morality
and views and that if a right is to be protected, the Constitution should be amended.
(Renquist & Scalia)
c. The P&I Clause is most relevant where a state treats a newly-arrived resident
less favorably than those who have resided in state for a longer time.
d. P&I Clause protects only those rights enumerated in the Constitution and owing
their existence to the federal government. (Ex: priv. & imm. of US citizenship)
e. LEVEL OF REVIEW
The Court gives SS Review to state laws that interfere with rights of
national citizenship.
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2) BILL OF RIGHTS, AMENDS. 1 – 8
a. Federal Rights
Protects from infringement only by the federal government.
b. State Rights
But, through the SELECTIVE INCORPORATION DOCTRINE the protections are
extended to limit states from infringing the rights as well.
• BOR becomes subsumed w/in the 14th A via DPC.
• Jot for Jot – whatever right has been determined to apply to
the states, the scope of that guarantee is interpreted the same
way for the states as the federal government.
(Ex: The 4th A right to be free from an unreasonable search and
seizure is interpreted the same way whether it involved the
State Police or the FBI).
b. The words “due process” appear twice in the Constitution (5th & 14th As)
• States Bound by 14th A DPC
• Federal Government Bound by 5th A DPC
• But, regardless, whatever is unconstitutional under one will be so
under another.
46
f. The DPC is home for most of the BOR. They are as equally protected from state
action as they are from the federal government.
g. Apart from rights contained w/in BOR, DPC also has an independent power of its
own – Independent Potency – with respect to rights not contained within BOR.
(Ex: Personal Autonomy)
i. THIS IS HUGE – OUTER EDGES OF JUDICIAL REVIEW! NOT
Originalism.
3) The right must lie at the base of all our civil and political institutions.
(Duncan)
Step back, and you see this is borderline judicial tyranny b/c it has the potential for judges to apply
their subj. values and traditions and raise them to the level of a constitutional right under the aegis
of the DPC.
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SUBSTANTIVE DUE PROCESS
• Generally, this limits the substantive power of the states to regulate
certain areas of human life.
• The substantive component of the DPC is deriven mainly from the
interpretation of the word “liberty.”
• A critical distinction at the outset if the right is fundamental. If no RB
Review. If yes SS Review.
NOTE: The majority of the difficulty in analyzing Substantive Due
Process Claims is whether the right is fundamental.
EXAM TIP
Any time a fact pattern suggests that a state OR federal government is taking away some thing
or value that could be considered “life, liberty or property” – you must ask:
Meaning of Liberty
Freedom from restraint, right of a citizen to enjoy all her
faculties, free to use them in lawful ways, to live and work
as she chooses, to pursue any livelihood, to enter all
necessary and proper contracts, etc.
48
3) The History & Shift to Current Trend
Lochner v. NY (1908)
The Court invalidated a min. wage law aimed at bakers by holding that it
violated the “freedom of contract” expressed in Art. I,
Sec. 10 and the DPC.
During the Lochner era, the Court frequently invalidated such laws, reflecting
the tension between the state’s police power, Social Darwinism and laissez
faire economics.
Nebbia v. NY (1934)
The beginning of the end fro economic substantive DP. Court upheld a NY law
setting prices for milk sold, saying that there was a public need to protect
49
dairy farmers and deferring to the legislature. One probable reason for the
Court’s shift was the effect of the Depression on the economy.
1) Generally
a. There is a liberty component to the DPC which also permits
fundamental rights to be implied. (Allegheyer)
d. LEVEL OF REVIEW
Strict Scrutiny Review
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e. PRINCIPLED BASIS FOR IMPLYING FUNDAMENTAL RIGHTS:
o Guideposts
o History/Tradition
Anchor Cases
Allegheyer v. LA (1890)
Court first articulated the idea of a liberty component to the DPC, opening
the door to implied fundamental rights.
Meyer v. Nebraska (1923)
Court invalidates a law prohibiting any language but English from being
taught in public schools.
Pierce v. Soc. of Sisters (1925)
Court struck down a law requiring all kids to attend only public school.
b. 9th Amendment
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b. Extended In:
Eisenstadt v. Baird (1972)
Court extended to unmarried couples the right to obtain and use
contraceptives, and in the process of expanding the scope of
privacy:
“If the right of privacy means anything, it is the right of the
individual, married or single, to be free from unwarranted
governmental intrusion into matters to fundamentally affecting a
person as the decision whether to bear or beget a child.”
Compare…
Roe v. Wade (1973)
German S. Court’s interpretation of the This case recognized that the right of privacy limits a legislature’s
word “everyone.” Period of freedom to proscribe or regulate abortion. HELD
Individuation – life – is after the 14th o A woman’s right to privacy is fundamental under the 14th
day. Amendment.
o Defined “person” as a post-viability fetus.
If this were the case in America for o Viability is the point at which the state’s interest in protecting
Roe, a woman would only be able to
life becomes compelling enough to restrict a woman’s right to
obtain an abortion up until the 14th day
– rendering it virtually impossible.
choose.
o Trimester Framework:
UNDUE BURDEN TEST 1) Prior to approx. the end of the first trimester, any law
State may not regulate a restricting abortion will receive SS Review.
woman’s choice to receive 2) From the end of first trimester to the point of
an abortion if it places on viability, the state may regulate abortion procedures in
her an undue burden. An the interest of the mother in ways that are rationally
undue burden occurs when related to the mother’s health.
the regulation has the 3) After viability, the state may regulate and even
purpose or effect of proscribe abortion in promoting the compelling interest
placing a substantial of human life EXCEPT where abortion is necessary to
obstacle in the path of a preserve the life of the mother.
woman seeking an abortion
of a nonviable fetus. 52
Planned Parenthood v. Casey (1992)
J. O’Connor articulated a new level of review applicable only to the
abortion arena – explicitly rejecting the Trimester Framework and
adopting the UNDUE BURDEN TEST.
HELD
o While government may not flatly prohibit abortion pre-viability
they may regulate it to promote the state’s profound interest
in life.
(Ex: woman must give her informed consent by meeting with a
doctor who tries to talk her into getting pregnant, 24 hour
waiting period)
o Informed Consent – Upheld.
o Spousal Notification – Struck down.
o Parental Consent – Upheld (some states – including NJ –
prohibit this)
o Partial Birth – Government may not prohibit this on the grounds
that it is grotesque b/c in some instances it protects the
health of the mother.
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FAMILY AND “OTHER” PRIVACY INTERESTS
a. Generally
i. Whenever the state interferes with a person’s decision
about how to live his family life and raise his children, you
should be on the lookout to determine if a fundamental
right is being interfered with.
BRENNAN
“General Tradition”
o States we shouldn’t saddle interpretation with limiting
the interpretation of tradition.
o Says that judges should discern and not dictate society’s
views. It is a constitution we are expounding.
The government interests for the law was to prevent overcrowding and
minimize parking congestion and putting an undue financial burden on
the school system. This could be legitimate. If given RB Review, the
ordinance would stand. BUT – if we can find an implied right we can get
SS Review.
54
Hypos for Defining the Family Unit
How far does the right to define the family unit stretch?
i. What if I want to define my family as myself and my girlfriend in a single
family zone, where family is define by blood, marriage or adoption. City finds
out and sends a letter saying they aren’t a family under their definition and
they have 30 days to leave or get married.
1. Would try to expand the definition of a family unit by arguing tradition.
Emerging tradition to live with girlfriend b/f marriage (Brennan).
Conversely, adversary would argue tradition is not to live together b/f
married (Scalia).
ii. What if it were the same situation but you lived with 5 of your buddies?
1. Same arguments, but probably wouldn’t work.
iii. What about gay and lesbian couples.
1. Same argument – argue for emerging tradition.
iv. What if there was a shrink who brought 3-4 kids into his home at a time as a
method to their treatment.
1. Ordinance required relation by blood, marriage or adoption.
2. Argue same type of relationship as parent/child. Really no different
than traditional nuclear family.
3. Present a week in the life of the family.
4. Show that everything a normal family does was done here. the only
thing that didn’t make them a family according to the ordinance is that
they aren’t related by blood, marriage or family.
a. Riccio lost the case b/f the zoning board.
b. Appealed to NJ S. Ct. Lost there as well.
c. NJ Legislature ended up enacting a group home law after
following the case. Group homes in NJ are exempt from zoning
laws.
Exam Tip
If you argue certain persons should be able to
live together, in order to support your
argument look to:
History
Emerging Tradition
Economics
Culture/Past Tradition
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IMPLIED FUNDAMENTAL RIGHT TO MARRY
• Fundamental right. Law must pass SS Review.
56
IMPLIED FUNDAMENTAL RIGHT AS GRANDPARENTS OF
GRANDCHILDREN
2) There must be a high degree of selectivity in decisions to begin and maintain the
affiliation.
3) The groups must be secluded from others in critical aspects of the relationship.
NOTE
Things like golf clubs are OK. It is when you get to the national level when it becomes violative.
57
IMPLIED FUNDAMENTAL RIGHT OF SEXUAL AUTONOMY
• There seems to be NO fundamental right to engage in adult
consensual sexual activity.
NOTE:
This was not the only way to define the right. VERY
IMPORTANT to remember that HOW we define the right
affects whether or not the Court will find it to be a
fundamental right.
NOTE:
Griswold was OK even though it was non-procreative sex, but
not OK in Bowers. Demonstrates the importance of
characterizing the right.
58
Romer v. Evans (1996)
Court invalidated a CO. law that repealed and forbade all laws that
gave homosexuals the ability to claim minority status or
discrimination claims.
• Court refused to raise the level of scrutiny to intermediate, but
used RB w/Bite to invalidate the law b/c it targeted a politically
unpopular group.
NOTE: Problem here, is that law was targeted at gays.
However, the majority doesn’t even cite Bowers which is
interesting.
Exam Tip
If you see a sexual orientation question,
you must harmonize both Romer & Bowers.
RULE
There is a fundamental right to choose one’s medical
treatment. (Roe v. Wade)
HYPO
A client comes to you and said they want a drug that is in Minnesota but
has not yet been FDA approved. They are terminally ill and only have a few
weeks to live. They need your help.
What do you do?
1) Seek a declaratory judgment by going to court and seeking a
mandatory judgment compelling the government to permit my client
to use the drug.
What is the basis for your claim?
1) Client’s rights under the 14th A DPC liberty component of the US
Constitution are being violated.
2) Use guideposts.
1. i.e., right to control medical treatment (Roe)
What do you want?
1) For client to be able to use experimental medication to save her life.
Is there a compelling government interest in precluding client from
obtaining the drug?
2) Government would argue it is the safety of the people b/c the drug is
not yet approved.
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3) I would reply that my client’s interest to choose her own medical
treatment outweighs that interest, especially since she only has two
weeks to live and this is her last chance.
1. There is not a compelling reason for denying my client the right
to take this drug.
RULE
There is a fundamental right to refuse medical treatment.
BUT health related compelling interests may require a
person to submit to treatment (Ex: vaccines to prevent
epidemics, quarantines).
RULE
(From Cruzan)
If Competent
• This is a fundamental right.
If Not Competent
• It is in the state’s interest in preserving human
life that a surrogate of an incompetent person
must demonstrate by clear and convincing
evidence that the person would want the life
support discontinued.
RULE
There is no fundamental right to commit solo or assisted
suicide due to tradition and guideposts, and laws
prohibiting it get RB Review. (Washington v. Glucksburg)
EXAM TIP
NOTE
They way you frame the asserted right being burdened is important.
Frame it in a specific way tailored to your argument.
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(Ex: the right to engage in homosexual sodomy v. the right to privacy;
right to association; right to parent/child relationship)
4) EQUAL PROTECTION CLAUSE (FUNDAMENTAL RIGHTS) OF THE 14 A
TH
f. The Clause guarantees that people who are similarly situated will be
treated similarly.
c. Similarities & differences b/n Using DPC and EPC for Implying
Fundamental Rights
The differences aren’t great.
Similarities
• They are both the same in that you can house EPC in the BOR through
EXAM Selective Incorporation – same as with the DPC.
NOTE • Both have independent potency to stand on their own as predicates for
implying fundamental rights.
Plead your • The way in which the Court will apply is the same in both.
case • The distinction b/n economic and non-economic is the same whether EPC
under or DPC.
both so • If a fundamental right is found, the Court raises the bar under both to
that your SS Review.
bases are Differences
covered. • The law that burdens the right does so by creating a classification or
drawing a line under the EPC.
• So, when you see legislative line drawing by segregating whose
fundamental rights are burdened and whose are not – this is when you
have the most appropriate setting for housing EPC with implied rights.
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Triggering Strict Scrutiny
1) Law targets a suspect class OR
2) A fundamental right (express or implied) is burdened.
• If the law creates a classification and burdens a fundamental right, the
law will get SS Review – even if the class is NOT suspect (Ex: Wealth).
NOTE: If the right is implied – FIRST figure out if the right is there!!!
62
Classification Two different types of criminals (Embezzlement for the same
amount of money was ok – traditional stealing was not). Thus, we’re in the EPC
area.
Suspect Class or Fundamental Right Try to fit under both – Belt & Suspender
Approach
• BOR – Cruel & Unusual Punishment (8th A) via Incorporation
Doctrine [Court didn’t go this way but they could have].
• Guideposts – Right to procreation is fundamental. The love,
etc. deriven from child-rearing shouldn’t be denied. Denying
blue collar but not white collar criminal.
In Skinner, Court agreed it was a fundamental right and triggered SS Review, and
HELD that the law was not narrowly tailored to serve a compelling government
interest.
NOTE: This is when the EPC kicks in – when the right is given!!!
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2) Ways to Infringe on Voting Rights
a. Absolute Denial
b. Voter Dilution
• A more subtle way to impair a person’s fundamental right
than absolutely denying it as in Harper & Kramer.
• Sometimes you can have voter dilution which is where
district lines are drawn which give more power to one
particular group. What this means is that each person’s vote
is not worth the same.
• Many of the voting rights cases are brought under § 2 of the
1965 Voting Rights Act b/c the invidiousness requirement
doesn’t exist here.
• Most of the voter dilution cases occur in two different
settings:
1. Reapportionment Cases
a. After the census (every 10 years), population is
reevaluated and the number of representatives
are affected by this.
64
c. Standards for Population Deviation
Congressional Districts
1. “As nearly equal in population as
practicable.”
2. This is b/c congressional districting is
predicated on Art. I, Sec. 2.
3. This is a rigid standard that doesn’t
permit much deviation.
State Districts
1. “Substantial equality of population.”
2. There is more deviation allowed here
b/c of the interest in the normal
functioning of state and local
governments.
3. General rule is that 10% is OK.
10% Rule.
• After that, it becomes
unconstitutional and you have an
EP problem.
• Don’t need any justification for
up to 10%.
Example
Population is 10 million, 10 districts.
The ideal district size would be 1
million. If the largest is 1.1 million
(10% variance) and the smallest is .9
million, the percentage deviation is
20% and this is not permitted.
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b. When Beneficial to Blacks
i. This is the tricky one.
ii. It came about principally with the 1990
Census. As a result of the 1990 Census,
states who had few blacks representing
decided to create a “majority/minority
district.”
This is a form of affirmative action t/f it
gets SS Review!!!
Shore v. Marino
1) P must show that race was the predominant factor motivating the legislature’s decision
to place a significant number of voters w/in or w/o of a particular district.
a. This may be shown through circumstantial evidence of district’s shape,
demographics, or more direct evidence pointing to legislative purpose.
2) To make the showing, P must prove the legislature subordinated traditional race-neutral
principles (shape, contiguity, shared interests) to race dominated considerations.
NOTE: It is hard to prove a racial gerrymander, but if you can it gets SS.
*KEY*
You can be aware of race but NOT motivated by it
Doesn’t matter if the racial gerrymander benefits or burdens.
What is bad about it is that it is racial.
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1) Generally
a. There is nothing expressly within the Constitution conferring on
persons the right to a free public education. State constitutions
usually fill the gap here.
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Procedural Due Process
***
A. PROCEDURAL DUE PROCESS
1) Generally
a. Embodied in the 14th Amendment.
c. This is the requirement that the state act with adequate or fair procedures
when it deprives a person of life, liberty or process.
2) Triggering Mechanism
a. Procedural due process does not get triggered unless a person’s life, liberty or
property are interfered with.
c. If you are NOT dealing with a person’s life, liberty or property than
government can deny w/o procedural due process.
3) Property Defined
a. Can be from CL or statutes (Ex: real property, intellectual property) OR
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LAF for Determining if there is a Property Interest in a Benefit
69
Three Part Balancing Test to Determine how “Formal” the Process
Must Be
(Mathews v. Eldridge)
2) The risk of erroneous deprivation of the interest through the procedures used, and
the probable value, if any, if additional procedures/safeguards were used.
NOTE
The government interest is balanced against the private interest and right to DP.
The procedures are adjusted to achieve the balance.
70
LAF for Procedural Due Process
2) If the property interest is a benefit, go through the LAF for determining if there is
a property interest in a benefit:
a. Is there a reasonable expectation the benefit will continue?
b. Is there a legitimate claim of entitlement?
c. Is the reliance on the benefit by the recipient reasonable?
MISC. NOTES
PROCEDURAL DUE PROCESS
The hearing or procedure generally must occur before the deprivation EXCEPT in cases where
there is an overriding interest like destroying contaminated food. (N. American Cold Storage)
71
Contracts Clause
***
A. CONTRACTS CLAUSE, ART. I, SEC. 10, CL. 1
NOTE:
A state may NOT make a law that impairs or alters existing contractual relationships.
However, a state may always legislate prospectively to affect future contracts.
1) Generally
a. The Court basically disregards the plain language of the statute. The Court
suggests that the framers’ own interpretation of the Contracts Clause is not
controlling.
i. “No state shall make or pass a law impairing the obligation of
contracts.”
3) There must be a significant and legitimate public purpose for the impairment.
a. Police power to remedy broad and social ills is especially good.
b. Generally deferential to what the state says is the purpose.
5) Court will defer to the state’s judgment UNLESS the government is a party to the
72
contract. (If gov’t is a party – there will be a much higher level of review)
First Amendment:
Freedom of Expression
***
A. FREEDOM OF SPEECH & PRESS THRESHOLD ISSUES
1) Generally
a. TEXTUAL BASIS
“Congress shall make no law…abridging the freedom of speech, or of the
press.”
. . . THRESHOLD ISSUES . . .
2) Types of Speech
a. Actual Speech
i. Spoken words and printed matter.
ii. Requires no further inquiry to determine if the 1st Amendment applies.
b. Symbolic Speech
i. This is conduct that conveys a message (Ex: wearing a black armband
to protest the Vietnam War).
ii. To receive 1st Amendment protection, the conduct must be “symbolic.”
(discuss supra)
b. Self-Governance Rationale
i. Participation in government and democracy.
c. Individual Self-Fulfillment
i. The significance of free expression rests on the central human capacity
to create and express symbolic systems such as speech, writing,
pictures and music.
d. Tolerant Society
i. Helps to shape the intellectual character of society.
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e. Safety Valve
i. By allowing speech to be spoken it reduces chance of revolt b/c persons
are allowed to “blow off steam.”
4) Speech Value
a. High Value
The way in which
the speech is Speech that is supported by a core value.
valued dictates the (Ex: political speech)
analysis.
• This speech gets the greatest protection from the Court.
• Laws that prohibit high value speech get scrutinized by the Court.
• Government interest need not be as great.
b. Low Value
Speech that is closely connected to a core value.
• False statements of fact
• Invading someone’s privacy for no good reason (Ex: identity of rape
victim)
• Commercial advertising
• Obscenity
• Lewd, profane, indecent
• Pornography
• Hate speech
Easier for government interest to outweigh the speech here – so it doesn’t
have to be as great as with high value speech.
74
Exam Tip
6) Facial Infirmities
If any of these facial attacks succeeds the statute or regulation is invalid. It doesn’t
matter if the speech could/would be protected. If the law falls into one of these
categories, the analysis is over.
NOTE: These doctrines aren’t used much anymore. Can still make an argument – but
not likely to succeed.
a. Overbreadth
RULE
A statute is overbroad if it bans speech which could constitutionally
be forbidden but ALSO bans speech (of others not before the Court)
which is protected by the 1st Amendment.
(Kind of an exception to the third-party rule in Standing)
Example
Statute prohibits anyone from burning a US flag for any purpose
whatsoever.
NOTE
Be sure to notice the distinction b/n overbreadth and vagueness. In
overbreadth, the uncertainty is hidden or latent. In vagueness, the
uncertainty is easily apparent.
b. Vagueness
i. The law government uses to restrict speech is too vague.
RULE
A law is void on its face if it is so vague that reasonable persons must
necessarily guess at its meaning and differ as to its application.
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Example: Statute prohibits anyone from burning a US flag as a symbol
of opposition to organized government.
c. Prior Restraint
i. Laws that prevent speech.
ii. This smacks of censorship and carries a heavy presumption of invalidity.
iii. Really the only time permitted is for reasons of national security to
protect troops in action.
ii. Balancing will NOT apply here b/c the categories by their very nature
inflict injury and possible immediate breach of peace.
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8) Why do we protect speech in America?
SEE J. Brandeis’ concurring opinion in Whitney.
Riccio says
these • Freedom to develop our faculties.
underlying • Liberty is the secret of happiness and courage the secret to liberty.
concepts are • Freedom to think as you will and speak as think are indispensable to the
REALLY
important. discovery and spread of political truth.
This • Without free speech and assembly discussion would be futile.
concurrence • Public discussion is a political duty.
is the best
explanation • Fear of serious injury cannot alone justify suppression of free speech
of why we and assembly. (men feared witches and burned women)
protect • It is the function of speech to free men from the bondage of irrational
speech in
America. fears.
• Only an emergency can justify repression.
Example
Holocaust art exhibit in NYC is being protested (designer gas canisters,
lego gas chambers, etc.). The solution – museum ended up putting up a sign
as you enter warning of the potential disturbance and allowing a way to exit
the exhibit. This is an example of speech that is upsetting and it is
answered with more speech.
Good example of what J. Brandeis talks about in his concurrence in
Whitney.
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. . . CONTENT BASED RESTRICTIONS . . .
Pre-Brandenburg Cases
Shaffer v. US (1919)
78
Defendant produced and distributed an anti-war booklet during the time of WWI.
He was convicted for violating the Espionage Act of 1917. Court establishes the
Bad Tendency Standard Whether the natural and probable tendency of the
publication is likely to produce the effect prohibited by the regulation.
HELD
There was enough evidence to show the hostile attitude of his mind
against the prosecution of war by the US.
Conviction upheld.
Schenck v. US (1919)
Defendant was charged with conspiring to violate the 1917 Espionage Act. He was
prosecuted for circulating a flyer to recent draftees encouraging them to resist
the draft. Court formulates the
CLEAR AND PRESENT DANGER TEST: Whether the words are used in such
circumstances and are of the nature to create a clear and present danger that
they will bring about the substantive evils that Congress has a right to prevent.
It is a question of proximity.
Terrorism
Dennis v. US (1951)
Deals with a situation in which the Smith Act says:
It shall be unlawful to advocate, teach, advise, etc. of overthrowing or destroying
any US Government or assassination of an office of such government.
The question becomes…
When there are in the US meetings of communists and they talk about the evils of
capitalism and the leaders of the communist party in this country sought
invocation of a communist revolution – what can we do?
NOTE: This is exactly what is going on in the terrorist cells in America
today.
HELD
• Court upheld defendant’s conviction.
• Here, the evil was so great that even a small, non-imminent chance of
success justified curtailing free speech.
DENNIS TEST…
Whether the gravity of the evil, discounted by its
improbability, justifies such invasion of free
speech as is necessary to avoid the danger.
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Something to Think About…
The situation is today – the Al Qaedas. The CIA and the FBI have these groups under
surveillance in our country. Through thermo imagery they are able to peer into their rooms, have
a wire tap and are listening to their conversations. The conversation is anti-American (i.e., 9-11
was a good thing, etc.). Nonetheless, it is all discussion. The FBI breaks in and arrests them all
– note that they are all US citizens. No charges are filed except lawfully advocating, advising,
etc. to overthrow or destroy the US government.
QUESTION: IS THIS PROTECTED SPEECH?
Absent Dennis we have a big nothing.
However, the Dennis Test says that if the risk is big enough then free speech is going to be
watered down.
Keep in mind that when we go down this slippery slope we are changing the fabric of our country.
All of the rights and liberties we enjoy will be chipped away at.
Nonetheless, this is what we are currently doing.
ii. DEFINITION:
Speech which communicates the possibility of future use of physical force
or violence against the intended victim OR unlawful damage of valuable
property.
KEY QUESTION
How do you know it is a threat?
How clever can you be to characterize it as just speech? If you can make
it just speech it has 1st Amendment protections.
Try to spin into a non-threat:
1) “I was just joking.”
2) “She knew it was a joke. We talked about it.”
3) Political hyperbole. (Watts)
b. How do we know a threat is a real threat?
Jury determines “reasonableness.”
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i. Reasonable Speaker Standard
A reasonable speaker would have reasonably foreseen that their speech
would be construed as a threat.
Watts v. US (1969)
During a public rally in Washington, D who had received his draft notice stated he would want to get
his sights on LBJ if they let him carry a rifle. He was convicted of violating a federal statute
prohibiting a person to make a threat to take the life of or inflict harm on the President of the US.
HELD
Court reversed his conviction.
They stated his political hyperbole did not constitute a threat w/in the meaning of the
statute.
HYPOS
1) What about emails back and forth b/n two persons about raping and mutilating
women. Is that protected? If not a threat, it is beyond Brandenburg.
2) What about a burning cross on the lawn of an African American that says “the
next one is for you.”
1) Generally
a. Government Interests
i. Respect for judge, judicial system, undermining the authority of the judge
b. Core Values
i. Right to know, search for truth, can argue many of the values.
c. Will or will not be protected depending on the results of the balancing test.
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Bridges, president of a union, sent a telegram to the Sec’y of Labor and then published it –
it criticized the judge’s decision in a case against him as “outrageous” and suggesting if it
were enforced the union would call a strike to tie up the ports of LA.
In a companion case, an LA newspaper was found guilty of contempt for publishing a series
of editorials concerning the pending sentencing of two members of a labor union. The
editorial described the defendants as “thugs” and “gorillas” and called on the judge to
sentence them to prison or otherwise make a serious mistake.
Both cases maintained the contempt convictions violated their rights of free speech and
press. Held Court protected after balancing analysis.
2) Attorneys
a. State may restrict speech by an attorney about pending cases if the attorney
knows or reasonably should know that the speech will have a substantial likelihood
of materially prejudicing the proceeding. Gentile v. State Bar of Nevada (1991)
b. BUT…
State may NOT restrict the press from reporting on pending criminal cases
without meeting the clear and present danger standard.
Gentile v. State Bar of Nevada (1991)
Rosenfeld v. NJ (1972)
Rosenfeld use the word “m-f’er” on four occasions to describe the school board,
the town and the country. A companion case was Brown v. Oklahoma, where Brown,
a member of the Black Panthers called some police officers during a Q&A in front
of a large audience at a university “m-f’ing fascist pig cops” and to one particular
officer as a “black m-f’ing pig.”
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Each person was convicted under a state law prohibiting, in various forms, the use
of profanity in public. HELD Convictions reversed. Not fighting words.
b. Limits
i. Anger Not Enough
1. Crowd must be so angry they are likely to fight.
ii. Crowd Control
1. The police must control the angry crowd instead of arresting the
speaker if they have the ability to do so. (No Heckler’s Veto)
iii. Dislike of Speaker’s Identity
1. Doesn’t apply where it’s the mere identity or lawful acts of the
speaker, rather than threatening words, that moves the crowd to
anger.
Cantwell v. CT (1940)
Cantwell, a Jehovah’s Witness played a record that attacked Catholics to persons he
encountered on the street. He was charged and convicted of breach of the peace. This is
HIGH VALUE RELIGIOUS SPEECH.
HELD
• Court reversed conviction b/c his communication did not raise a clear and
present menace to the public peace.
Cox v. LA (1965)
Cox was advocating students break the law by sitting at a lunch counter.
HELD
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• His conviction was overturned b/c the Court found no conduct which the state
had a right to prohibit as a breach of the peace.
• There was no evidence (absent some mutterings) that anyone was inclined to
violence.
The approach the Court takes in the absence of application of the Brandenburg formula is to
protect the speaker and control the crowd.
Why? Because we value speech – core values.
Thus, it doesn’t matter if the speaker is a Nazi or MLK, Jr. – the rule is the same.
The Court will NOT permit a Heckler’s Veto.
The Government cannot/may not make a value judgment on the content of speech. The KEY
CONCEPT is that government must be a neutral player.
The end result is that we tolerate unpopular worthless speech for the greater good of
establishing the principle.
Today, the answer to many of our concerns is controlled through the use of permits. (Ex:
When Leonard Jeffries came to school).
The problem with permits is that they are sometimes a subterfuge for censoring speech (Ex:
Skokie)
The key is that regulations may not discriminate on the basis of content of message.
G. CONTENT BASED RESTRICTIONS ON DISCLOSURE OF CONFIDENTIAL INFORMATION/SPEECH
THAT GOVERNMENT WOULD PREFER TO KEEP SECRET RATHER THAN ALLOW THE PUBLIC TO
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KNOW ABOUT IT
b. So, what we’re balancing now is the right to know v. the government interest
(privacy, national security).
The state argued the disclosure of confidential information created a clear and present
danger to the effective operation of the commission, undermined the judicial system and the
reputation of the judge and discouraged individuals from coming forward (chilled witnesses
for fear their name would be in the paper).
HELD
• Statute is unconstitutional b/c much of the risk could be eliminated through
careful internal procedures.
• The right to know outweighed the government interests.
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They were seeking a prior restraint on publication of newsworthy information – remember this
is tough.
Government argued the publication would create a threat to national security, lead to the
death of soldiers, the undermining of alliances, the inability of diplomats to negotiate and the
prolongation of war.
HELD
• This doesn’t outweigh the right to know. WOW!
• Court said the government didn’t meet the burden for establishing a
justification – too vague were there reasons.
NOTE: J. Brennan’s concurrence says that the government’s interest outweighs our right to
know when the nation is at war.
1) Generally
a. Arises when non-newsworthy information gets published for no good reason
other than to satisfy the public’s desire for gossip.
b. We tolerate this for the ultimate goal of not chilling the press who are often
our only eyes and ears for criticizing the government.
c. We can’t have government censoring the content of the message – then they
start picking and choosing which could be VERY dangerous!
1) Generally
a. This used to be categorically unprotected, so that if a person made a false
statement, the victim could bring an action for libel or slander.
b. This changed with NY Times v. Sullivan, where the Court created a special rule
whose application depends on the status of the victim.
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NY Times v. Sullivan (1964)
Times published an ad that allegedly libeled Sullivan (an elected Commissioner of the
City of Montgomery, AL) – statements contained in the ad were inaccurate.
HELD
• Court changes the rule to the Actual Malice Standard b/c:
i. Officials assume risk.
ii. They have greater access to the media.
iii. Core value speech (criticism of government)
iv. Self-censoring effect
v. Falsehoods shed light on truth
vi. First Amendment needs breathing space.
• To be actionable, statement must be made with actual malice which is
(a) knowledge it was false AND (b) with reckless disregard whether the
statement is false or not.
• Applies to public officials acting in the course of official conduct.
NOTE
These cases show us that the actual malice standard is
difficult if not impossible to prove.
Often, reputation takes a hit.
Exam Tip
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4) Actual Malice Standard/Public Figures
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HYPOS
1) Gary Condit Hypo
Maybe someone wants to discredit Gary Condit, so they run a story on info retained from
Condit’s office but it is a lie. Info received was that “Gary Condit had a raging sex affair with
Chandra Levy and he is engaged in multiple sexual relationships not involving his wife.” The
reporter runs the story. Condit comes to you as attorney and says none of this is true and he
wants his life back.
NOTE
In some ways the Actual Malice Standard may be overprotective of speech and harm the
innocent person. Often times the lie never catches up with the speech.
Usually poses a problem in the context of a public figure.
LAF for Determining Actionability in a Case Brought against a Person who is Alleging
Libel or Slander by Another Person
(NY Times v. Sullivan Standard)
2) Applies to:
a. Public Officials
i. Elected Office Holders
ii. Government Employees that have some discretion , control or decision-
making power.
(Ex: police officer, public school teacher, military officer, but not a
janitor)
b. Public Figures
i. Individual has achieved pervasive fame or notoriety that he becomes a
public figure for all purposes in all contexts.
(Ex: Monica Lewinsky, Michael Jackson, Michael Jordan)
II. Individual voluntarily interjects himself or is drawn into a particular
public controversy and thereby becomes a public figure for a limited
range of issues.
(Ex: Linda Tripp, Kenneth Starr)
NOTE: The analysis for public figures is much more difficult.
Half of the litigation debate is determining if person is a public
J. CONTENT BASED RESTRICTIONS ON LOW VALUE COMMERCIAL ADVERTISING
figure.
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1) Generally
a. Definition:
i. Speech that refers to a specific brand name, product or service.
ii. Made by a speaker with a financial interest in the sale of the advertised
product or service, in the sale of a competing product or service, or in the
distribution of the speech.
iii. It does not advertise an activity that by itself is protected by the 1st
Amendment.
b. Merely b/c money gets paid to put forth the speech does NOT make it commercial
speech.
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LAF for Identifying Commercial Speech
1) Speech at issue must concern a lawful activity and must not be misleading or
deceptive.
a. If either, the speech gets no protection and the law is valid.
(Ex: Categs. a, b and c)
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2) Lawyer Advertising
a. Government interest for prohibition:
i. Detracts from professionalism.
ii. Increases frivolous lawsuits.
b. Used to be banned – but now given a great deal of protection.
HYPO
An explosion occurs in Edison.
• Shouldn’t go when people are grieving. This is too close to aggressive
speech.
• Runners – DO NOT USE THESE!
2) Defining Obscenity
a. This is a critical analysis which is extremely complex b/c the Court has struggled
over time with trying to figure out what it is and is not.
(“I know it when I see it.” – J. Harlan)
b. It is HARD TO PROVE something is obscene. What we’re really talking about are
those types of expressions which really border on the sick – violence, mutilation.
Just sex won’t usually cut it -- HARD CORE SEX.
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OBSCENITY LAF
Miller Test
1) Average Person
a. (i.e., juror) not the hypersensitive or insensitive
2) Contemporary Community Standards
a. Look at the mores/values of a particular community – NOT a national standard.
b. Ex: NY standards are different than Kansas standards.
c. Could even be localized w/in a state (Ex: Ocean Grove, NJ v. Seaside, NJ)
3) Work Taken as a Whole
a. Can’t pick a segment of something – must be valued as a whole.
i. Ex: can’t pick a scene out of a movie.
4) Appeals to Prurient Interest
a. Lustful, Lascivious
5) Sexual Conduct/Patently Offensive
a. There must be sexual conduct – curses and violence are not obscene. There
MUST be patently offensive sex.
6) Work as a Whole Lacks Serious Literary, Scientific or Political Value
4) Why Categorically Exclude Obscenity and not Hate Speech, etc. based on the
Above Policy Rationale?
a. The difference is that the obscenity standard is SO TOUGH TO MEET that
when something meets the standard it is totally worthless.
HYPO
What about totally nude dancing in a club by men/women? Is that kind of activity
protected or is it obscene?
• Depends on where you are. Utah – probably unprotected. Vegas – probably
not.
• If you are defending your client – really play up Prong 6 – think of whatever
you can.
(Ex: nude dancer wears nothing but the American Flag. As hysterical as it
sounds, you must pull something from somewhere.
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PARIS ADULT THEATRE I V. SLATON (1973) P. 1174
Two movie theatres exhibited adult films – a warning was on the exterior. The
local DA alleged the movies were obscene. The theatres’ defense was that (1)
there was a warning that the films were obscene and (2) they were exhibited to
consenting adults only. ISSUE: Can the government prohibit consenting adults
from viewing obscene films in a movie theatre?
Court says If the movie is obscene, you as the owner of a movie theatre cannot
show the movie – regardless of warnings and adult requirement.
1) Generally
a. Basically curse words, vulgarities. Language that is offensive.
b. All are protected, but considered low value speech and get less protection.
Captive Audience
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Occurs when a substantial privacy interest is being invaded in an essentially
intolerable manner and the listener/viewer cannot turn away with ease b/c of the
“degree of captivity.”
If Found Court will give less protection and may impose restrictions or punish.
If NOT Found Only recourse is to avert eyes/ears.
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c. Government may choose to ban ALL hate speech – but can’t pick and choose based
on message.
NOTE: A very confusing case b/c does no analysis. Nonetheless, must realize
what it does and does not do.
N. SEXUAL HARASSMENT
1) Generally
a. Title VII prevents discrimination on the basis of employment based on race, color,
religion, national origin or sex.
i. This statute is the predicate for sexual harassment claims.
b. Title VII has 2 different kinds of sexual harassment claims:
i. Quid Pro Quo (something for something)
• Supervisor says to employee that in return for sex they will get
some employment benefit that they will not otherwise get.
• Not the typical case today.
ii. Hostile Work Environment (most typical today)
• Typically comes about when there was a pre-existing affair b/n
supervisor and subordinate. They break up and then the hostility
ensues.
• Emails. besmirching reputation, etc.
• Could also be the boss who thinks he’s being funny.
c. When a person says something to another in the workplace about sex related
characteristics, racial slurs – protected speech.
i. So, how do you create a cause of action on these words alone?
ii. Title VII.
p. 1227-28 Tells you WHY.
1. Speech must be sufficiently severe of pervasive to
create an environment that a reasonable person would
find hostile.
2. Government in this context may not prohibit speech that
is reasonably designed or intended to contribute to
reasoned debate on issues of public concern.
. . . CONTENT NEUTRAL RESTRICTIONS . . .
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a. As a general proposition – more likely to be upheld.
HYPO
City of Short Hills regulates location, size and shape of billboards. Not in residential
zone, and when constructed no more than 10 feet high and not along highways.
CN b/c not based on the message. There is an indirect limit on speech – but doesn’t
matter.
3) Does the law leave open ample alternative channels for communication of the
information?
a. Is there an adequate substitute?
If YES Regulation is valid.
If NO Invalid.
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Schad v. Mt. Emphraim (1981)
Adult bookstore had a coin operated machine that allowed to place a coin and see a
live nude dancer behind the window. Violated ordinance that prohibited all live
entertainment in the Borough (this would include any entertainer performing live –
even a guitar player). Could argue CB or CN. Problem is that the ordinance means
nude dancing has nowhere to go in Mt. Ephraim. Thus, would be unconst. b/c there
is no alternative channel as required by the LAF
APPROACHES
1. US v. Grace p. 1249
Don’t want displays on sidewalks surrounding S.
Ct. building. Court invalidated.
2. Cmwlth v Davis p. 1247
Said govt has same rights as private person to
exclude.
3. Hague case changes this. p. 1247
Says govt owned property is different b/c it is:
i. held in trust for people
ii. Adverse Possession
iii. Easement
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c. Non-Public Forum [Reasonableness Standard – Low Deferential Review]
1. This is not open to the public at all.
a. Ex: Congress, White House, Pentagon, Military Bases,
Prisons, Hospitals, etc.
2. Restriction need only be reasonable.
a. See Krishna analysis.
Government tries to exclude on a content neutral basis via their property interest.
What we’re dealing with here, is those situations in which government makes a law that attempts
to exclude someone from using it for expressive purposes.
This is the basis for the concept of the public forum.
As a general proposition, if government tries to restrict speech at a traditional public forum, level
of review will likely be the same as if someone tries to speak from their front yard. This means
the same right to speak to 7 guys in front of Don Pepe’s as if you were speaking from your front
yard. What if the 7 guys were in a hospital room (desig. public forum) and you want to go in and
counsel of alcohol abuse and if govt tries to restrict their speech the Court here will likely apply
more deference to the government – b/c it is a little different – but still a lot of protection. What
about if giving out flowers and leaflets in an airport and government says no? If the airport is a
nonpublic forum – Court will apply a reasonableness standard – restriction need only be
reasonable.
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A regulation prohibited repetitive solicitation of money and sale/distrib. of
merchandise at airport terminals.
Work through LAF…
1) Gov’t owned property
2) What class?
a. Arguing for traditional
i. People from all over the world are in and out, people
are talking to each other
b. Arguing that it is not
i. Designated since only portions are open to the public
(ex: not the gate)
ii. Court says that to be traditional it must be
longstanding.
1. This tells us that it is highly unlikely to apply to
new places.
2. Because traditional is defined as historical and
longstanding, LAF court will use is that it need
only need to satisfy a standard of
REASONABLESS (deferential level of review
where regulation is occurring on a non-public
forum). Thus, great power for government to
regulate.
A good exam question: Can the Krishna’s go to Continental Airlines arena owned by the
government and hand out their leaflets?
HYPO
Celebration, FL owned by Disney, Inc. If they decide to eliminate free
speech – they can’t do it. So, sometimes private ownership rights get
subordinated to free speech.
A. SYMBOLIC EXPRESSION
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1) Generally
a. Expression that consists solely of non-verbal actions.
c. GENERAL RULE
Non-verbal conduct becomes – or has the potential to become speech when
the non-verbal conduct conveys a message or meaning which the target
audience will understand.
O’Brien (1968)
D and friends burned their draft cards on steps of courthouse. He was
arrested and indicted.
Free Speech Analysis:
1) Was it speech?
a. He burns his card but didn’t talk.
b. Argument for Yes:
i. At the time people knew persons were vehemently
opposed to the Vietnam War and other people at the
time were burning draft cards.
ii. The message was anti-war.
c. S. Ct. did not agree that it was speech – but treated it as
such for purposes of the opinion.
2) Where did it occur?
a. Speech occurred on a traditional public forum. Courthouse
steps.
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O’Brien Test
LAF for Evaluating Restrictions on Symbolic Speech
4) If the incidental restriction on alleged 1st A freedoms is not greater than is essential
to the furtherance of that interest.
Tinker
Black armband was protected symbolic conduct b/c school was seeking to
restrict the anti-war message.
b. Solicitation of funds and payment is protected speech b/c when someone gives
you money for something they are saying “We support your cause.”
2. Expenditure
o Spending money on the campaign or for ad/communications.
o When you spend money you do it via two ways:
(a) spending your own or
(b) an outsider spends the money toward a cause candidate
may be supporting. When the outsider spends it is soft
money b/c it goes for the cause and not to the candidate.
b. Government says these expenditures are a problem b/c the political process is
getting corrupted, abused, the integrity of the system is being undermined.
The little person’s voice is not being heard. Your ability to get into office is
virtually impossible unless you have millions of dollars.
c. The CFR is designed to eliminate people buying elective office – but to give all a
voice in the political process.
d. The problem with this, in furthering these good sounding ideas, if you want to
spend $70M to get elected you can’t. T/f it is suppressing your speech.
e. The balancing we’re going to look at with CFR is the balancing of two good
reasons: integrity/equality of elections v. free speech.
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1) Generally
a. Nonverbal conduct here is association.
b. NOTE Right of association for expressive purposes is NOT the same as the
right of intimate association which in rooted in the DPC.
c. If the group has not been organized for an expressive purpose – the 1st
Amendment does NOT protect that group (but the 14th A might).
THRESHOLD QUESTION:
Has the organization been formed as an expressive association?
1) Generally
a. This is a “grey area” that is neither verbal nor non-verbal conduct.
Barnette (1943)
All students in public school at the beginning of each day are required to salute
the flag. HELD Unconstitutional to require children in public school to salute
and pledge allegiance to US flag.
1) Is government compelling speech?
a. Yes b/c public school.
2) Sufficiently compelling?
a. Patriotism, sense of identity
b. Person not wanting to follow argue Autonomy/liberty interest to
believe and to not have other people label you.
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WI Univers. required all students to pay an activity fee – part of which was
allocated to expressive groups on campus. Challengers didn’t want their money to
support views which they didn’t believe in. HELD Fee was viewpoint neutral and
t/f constitutional.
1) Generally
a. A separate clause in the 1st A – some say different than free speech b/c
otherwise would not be there.
c. As a general proposition – press has no greater access than public. But, then
there is law and there is reality. (Ex: cop knows reporter)
1) Generally
a. Protecting Confidential Sources
1st A freedom of press does not exempt a reporter from disclosing to a
grand jury information that he has received from confidential sources b/c
the public interest in law enforcement and in ensuring effective grand jury
proceedings is sufficient to override the burden on news gathering.
(Branzburg v. Hayes) 1972.
b. Shield Laws
Most states now have these which give reporters protection from having to
reveal confidential sources.
Enacted due to concern for need of info, fear of chill, government
censorship.
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C. ACCESS TO INFORMATION
1) Generally
a. Restricted Environments
• Constitution does not require a state to grant the press special access to
otherwise restricted areas.
BUT
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FREEDOM OF RELIGION
***
A. RELIGION CLAUSES
1) Generally
a. The freedom of religion is protected by two clauses in the 1st Amendment.
• Establishment Clause
Looks to prevent government endorsed or supported religion.
• Free Exercise Clause
Looks to prevent government from burdening person’s rights to
believe in, profess or practice their religion.
b. Like free speech – part of the difficulty is in determining what is religion. The
difficulty arises when you have a situation where it looks, sounds and feels like
a moral code but is not an established religion. Court generally gives a very
Exam Tip
expansive reading, however.
Religious • Belief in a Supreme Being.
speech on exam • Belief in a transcendental value
is two issues:
• A moral code
Speech
&
• A world view accounting for the role of the universe
Free Exercise • Sacred rituals
• Worship and prayer
• A sacred text
• Membership in a social organization
Seeger
Seeger, on his draft form, as to which he claimed he was a conscientious objector,
wanted to leave the question as to the Supreme Being he believed in open. He
stated the values he believed in w/o a belief in God.
HELD That was a religion for giving him conscientious objection status.
e. Note that there is always a tension b/n the FE and EC – but the FEC tends
dominates.
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2) Two Prevailing Views on how Government and Church should Interact
a. Modified Separationism
• Belief that agnostics and atheists have a right to be considered when
laws are made.
• A limited assistance will be tolerated.
• Cannot aid religion.
b. Non-Preferentialism (Scalia)
• Government may not give a preference to one religion over another –
BUT – they can give a preference to religion over no religion.
• Does not separate religion from government – rather that government
need be fair and neutral in how it aides religion.
(Also strict separationism, government sponsored [Islam], government forbidden
[communism] – but not an issue in America]
2. The effect of the law must neither advance nor inhibit religion;
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