I.

Equal Protection of the Laws A. Basic Framework 1. Introduction a) Constitution was originally drafted and ratified w/ no provisions concerning the equal protection of laws b) 14th Amendment: passed after the civil war as a result of widespread discrimination c) Holmes: last resort of Constitutional arguments i. Court rarely relied upon 14th Amendment ii. Brown (1954): beginning of modern EPC jurisprudence against discrimination and protecting fundamental rights iii. Bowling (1954): EPC applies to federal govt. through the Due Process Clause of the 5th Amendment d) 4 basic approaches to constitutional questions i. Textualism: what does the language mean? ii. Originalism: What did the framers intend? iii. Process-based: central value the protection of the democratic process iv. Adaptivsim: what is the core value underlying the issue and how is it best adapted? 2. Framework for Analysis: is the govt. s classification justified by a sufficient purpose relative to the type of discrimination? (p. 718-723) a) What is the classification? i. Discrimination exists on the face of the law: the law on its terms draws a distinction among people based on a particular characteristic ii. Facially neutral: (1) discriminatory impact or discriminatory effects from its administration; and (2) discriminatory purpose b) What is the appropriate level of Scrutiny? i. Race or National Origin: Strict Scrutiny a. must be necessary to achieve a compelling govt. purpose b. cannot achieve this purpose through any less discriminatory alternative c. Fundamental Right 1) Skinner v. Oklahoma: right to procreate 2) Lochner Era: court s desire to protect rights outside of substantive due process ii. Gender and non-martial children: Intermediate Scrutiny a. Substantially related to an important govt. purpose 1) Does not require necessity, only a substantial relationship of means-to-end iii. Minimum-level under EPC (i.e. not strict or intermediate): Rational Basis a. Rational relationship to a legitimate govt. purpose b. i.e. age, disability, wealth, etc. iv. Determination of level a. Immutable characteristics b. Ability of group to protect itself through the political process c. History of discrimination d. Likelihood of existence of prejudice 1) Race is virtually never an acceptable justification for govt. action

2) Gender: biological differences may establish a justifiable basis for discrimination c) Does the govt. action meet the level of scrutiny? i. Ends a. Strict: compelling b. Intermediate: important c. Rational basis: legitimate ii. Means a. Underinclusive: law does not apply to individuals who are similar to those whom it does apply b. Overinclusive: applies to those who need not be included in order for the govt. to achieve its purpose B. Rational Basis Test (pg. 723) 1. Burden of proof on challenger a) Presumption in favor of laws extremely deferential to the govt. 2. Rational Basis w/ a bite a) More rigorous level of minimum scrutiny? i. Cleburne ii. Romer 3. Analysis a) Legitimate purpose? Romer v. Evans (pg. 725) y Co amendment passed: voter initiative that repealed all laws protecting gays, lesbians and bisexuals from discrimination and prohibited all future govt. Action to protect those individuals from discrimination o On the basis of being homosexual not on the basis of sexual orientation y Epc: those who are equally situated should be treated similarity o Suspect class?  No*, but classification as a group requires the state to associate the intended purpose w/ the group rather than an individual o Legitimate govt. Interest?  State s rationale: protect citizen s freedom of association the liberties of landlords and employers who have personal or religious objections to homosexuality  Court s interpreted purpose: breadth of law is so far removed from state s justification y Inclusiveness is a signal of discrimination o Under-inclusive: defines group by a single trait o Over-inclusive: denies protection too vastly y Intent o Animus: desire to harm a politically unpopular group cannot constitute a legitimate govt. Purpose  Therefore, no legitimate interest=no need to apply heightened scrutiny b/c does not even meet lowest standard o Dissent Scalia, Rehnquist, Thomas: permissible moral judgment to preserve the traditional sexual mores against efforts of a politically powerful minority to revise those mores through the use of the law

i. Conceivable legitimate interest: a law will be upheld as long as the govt. can identify some conceivable legitimate purpose, regardless of whether that was the govt. s actual motivation US Railroad Retirement Board v. Fritz (pg. 731) y Federal law: allowed for those who were already receiving dual-benefits to continue receiving them but current employees could not get the same benefits unless they worked for the RR for 25+ years (as of 1974) o Result: a person who worked for RR for 10 years and was currently retired qualified for greater benefits than someone currently employed but for <25 years y Govt. s purpose: likelihood of differing classes of employees to pursue careers in industry y Court: constitutionally irrelevant whether this was the actual purpose, only whether or not it was legitimate y Dissent Brennan: should only be sustained if it is rationally related to the achievement of an actual legitimate purpose b) Reasonable relationship? i. Is the classification drawn in the statute reasonable in light of its purpose? ii. Deference: will be upheld unless the govt. action is clearly wrong, a display of arbitrary power, not an exercise of judgment iii. Therefore, will allow for laws that are significantly Under/Overinclusive a. Tolerance for Underinclusive 1) Raise the particular concern that the govt. has enacted a law that targets a particular politically powerless group or exempts those with more political clout 2) Allowed (RB) b/c govt. may take incremental steps in addressing the legitimate purpose Railway Express, Inc. v. NY (pg. 735) y City ordinance that banned all advertising on the sides of the truck if not in relation to the ordinary business of the truck owner o sells advertising space on trucks y : distinction is irrational to achieve goal of decreasing distractions to increase safety y Court: EPC does not require that in accomplishing legitimate purpose, the action be inclusive of all mean of accomplishment o Therefore, other distractions not affected by ordinance are irrelevant o RB allows for low-degree of underinclusiveness b. Tolerance for Overinclusive 1) Regulation equally applies to those who are no similarly situated 2) Legitimate purpose outweighs burden on 3rd party group adversely affected NYC Transit v. Beazer (pg. 738) y City regulation that prevented those in methadone maintenance programs from holding position w/ the Transit Authority y Court: upheld regulation o Overinclusive: majority of people in the programs for 1+ years are free from illicit drug use  Therefore regulation purpose of preventing illicit drug users from gaining employment affected those in the program who were not illicit drug users.

RB allows for substantial degree of overinclusiveness

iv. Laws deemed Arbitrary or Unreasonable Dept. of Agriculture v. Moreno (pg. 741) y Federal law preventing a household from receiving food stamps iif it included individuals who were not related to one another y Govt: minimizes fraud in the food stamp program y Court: unconstitutional the practical effect of the classification simply does not operate as to rationally further the prevention of fraud o Program excludes those not likely to abuse the program, but rather those who are in need and therefore cannot alter their living arrangements o Classification w/o rational basis y Dissent Rehnquist: this is an issue for Congress, not the court City of Cleburne v. Cleburne Living Center (pg. 744) y Zoning ordinance prevented the operation of a home for the mentally disabled, ordinance required a special permit for the operation of a group home for the mentally disabled o City allows for other care and multiple dwelling facilities w/o permit y Mentally disabled: court applied RB o Constitute a large group, not all with the same character traits therefore not a suspect class entitled to heightened scrutiny as a class y Court: Unconstitutional o Requirement of permit rests on irrational prejudice of mentally disabled o RB w/ a bite ?  Irrational based on implied prejudices against affected group v. Age discrimination a. Receives RB scrutiny 1) Even though age is an immutable characteristic Mass. B. of Retirement v. Murgia (pg. 937) y Law requires police officers to retire by 50 y Govt.: purpose to ensure public safety by assuring the physical preparedness of officers o Means: barring people over 50 from being officers o End: objective of assuring public safety y : no question whether he was physically/mentally capable of performing duties of job y Court: rational relationship to legitimate purpose o Not strict scrutiny  Impermissible interference w/ a fundamental right? y Right of govt. employment is not per se fundamental  Disadvantaged suspect class? y Policemen over the age of 50 not a suspect class C. Classifications Based on Race and National Origin 1. Discrimination and Slavery before the 13th and 14th Amendments a) 13th: Slavery unconstitutional b) 14th: Equal protection

Dred Scott v. Sandford (pg. 750) y taken into Illinois, a free state. After his owner died, his estate was administered by o sued in federal court alleging that his residence in Illinois made him a free person o Missouri Compromise: Congress admitted MO as a slave state but prohibited slave states above a specified boundary o Issue: can a slave upon emancipation, or by birth of parents who had become emancipated before one s birth, be a citizen of the state within the meaning of citizen w/in the Constitution o Court: the enslaved African race not intended to be citizens as defined by the Constitution  Could still enjoy some rights of a citizen in a free-state  Not entitled to sue in court, therefore court has no jurisdiction 2. Strict Scrutiny for Discrimination Based on Race and National Origin a) Racial classifications: will only be allowed if the govt. can meet the heavy burden of demonstrating that the discrimination is necessary to achieve a compelling govt. purpose i. Extremely important govt. interest ii. Cannot be achieved through any less discriminatory alternative b) Why strict scrutiny? i. Long history of racial discrimination makes it likely that racial classifications will be based on stereotypes and prejudices ii. Justified by the relative political powerlessness of groups iii. Race as an immutable trait: unfair to discriminate against people for a characteristic that is acquired at birth 3. Existence of Race a) Race and National Origin classifications on the Face of the Law i. Racial classifications that disadvantage racial minorities Korematsu v. United States (pg. 756) y convicted after he did not leave an area that all people of Japanese ancestry were forced to be excluded from Military area y Govt.: serious risk to National security from Japanese-Americans that might be disloyal to the US in war-times y Court: accepted govt. s argument, unascertained number of Japanese-Americans who might be disloyal makes screening impossible, and thus the govt. s interest is compelling o War-time decision o Govt. used race as only classification o Overinclusive: all Japanese were evacuated and interned o Underinclusive: other races posed a threat to US at the time who were not interned  Means then was not necessary to attain that end, even though security would be considered a compelling govt. interest y Dissent Murphy: denial of constitutional rights to procedural due process ii. Racial classifications burdening both whites and minorities a. i.e. anti-miscegenation laws: statutes that prohibited interracial cohabitation and marriage apply both to whites and blacks 1) Sp. Ct. initially upheld laws b/c they discriminated against blacks and whites equally

2) BUT later invalidated b/c the court recognized that such racial classifications were impermissible under EPC b/c they are based on presumptions of inferiority Loving v. Virginia (pg.761) y VA: illegal for a white person to marry outside of the Caucasian race y State: constitutional b/c it equally burdens both blacks and whites y Court: unconstitutional o Statute rests solely on distinctions of race o There can be no doubt that restricting the freedom to marry solely b/c of racial classifications violates the central meaning of EPC  Racial classification: triggers most rigid (i.e. strict) scrutiny o Measure designed only to maintain white supremacy  No compelling govt. purpose Palmore v. Sidoti (pg. 763) y State denied a mother custody of her child b/c of her remarriage to a person of a different race o Lower court: no issue of devotion to child, adequacy of housing facilities, or responsibility of the new spouse or mother  BIOC: racial stigma child would suffer from social stigmatization y Court: stigmas exist o But societal existence of racial prejudices cannot justify a racial classification removing an infant child from the custody of its natural mother found to be an appropriate person to have such custody iii. Laws requiring separation of the races Plessy v. Ferguson (pg. 765) y LA law requiring separate rail-cars for blacks and whites o Separate but equal accommodations y ordered to vacate white car: upon refusal, was forcibly removed by a police officer and imprisoned on charges of violating the Act o Was 7/8 white, 1/8 black y Court: 14th amendment was meant to guarantee (political) equality, but not intended to abolish social distinctions or enforce comingling of the races y : separation stamps blacks w/ a badge of inferiority o Social equality must be the result of voluntary consent of individuals y Dissent Harlan: statute interferes w/ the ability of 2 individuals of different races to choose for themselves to integrate o Intent was not to keep separate (races out of the cars of each other), but to keep blacks out of white cars a. Initial attack on Separate but Equal Brown v. Board of Education (pg. 770) y Sp. Ct. granted review of cases that challenged the doctrine of separate but equal in the contexts of elementary and high school education y Does segregation of children in public schools solely on the basis of race, even though the public facilities and other tangible factors may be equal, deprive children in the minority group of equal education opportunities y Framers intent (14th amendment): little history on intended effect on public education

Ct: effect of segregation on public education o Generates notions of inferiority o Therefore, separate educational facilities are inherently unequal Subsequent concerns re: decision o Reliance on social sciences to support its conclusion, rather than moral judgment against education, could lead to future contradictory sciences to support segregation b. Invalidation of segregation in other contexts 1) Initial concerns that b/c Brown focused solely on education, it did not provide a basis for declaring segregation unconstitutional in other contexts

Johnson v. California (pg. 774) y Dept. of Corrections unwritten policy of racially segregating prisoners in double cells in reception centers for up to 60 days each time they enter a new correctional facility o All other areas of the prison facilities are fully integrated y CDC s purpose: policy necessary to prevent violence caused by racial gangs o Turner v. Safley: deferential std. of review case involved a claim by MO prisoners that regulations restricting inmate marriage were unconstitutional  Rational basis scrutiny for regulation that burdened prisoners rights y Ct: racial classification requires heightened scrutiny o CDC has a compelling interest in prison safety o Note: application of strict scrutiny says nothing about the ultimate validity of an particular law  Remanded: CDC will have the burden of demonstrating that its policy is narrowly tailored w/ regard to new inmates as well as transferees y Dissent Stevens: CDC has scant evidence to justify use of race, i.e. not likely to be resolved on remand and should be held unconstitutional y Dissent Thomas and Scalia: Turner s std. of review should be applied in all circumstances the needs of prison administration implicate constitutional rights o CDC has legitimate interest in prison safety o Policy is reasonably related to interest b) Facially Neutral Laws w/ discriminatory impacts or Administration i. Requirement for proof of discriminatory purpose for facially neutral laws to be treated as racial/national origin classifications Washington v. Davis (pg. 779) y Applicants for police force were required to take a test o Statistically, blacks failed the examination much more frequently than whites y Claim: disproportionate impact o No claim of intentional discrimination y Ct: Disproportionate impact alone does not trigger strict scrutiny a. How to prove discriminatory purpose? 1) Requires proof that the govt. desired to discriminate, it is not enough to prove that the govt. took action w/ knowledge that it would have discriminatory consequences Personnel Admin. of Mass v. Feeney (pg. 795)

Veterans are given preferential treatment in qualifying for state civil service positions over qualifying nonveterans o 1979: majority of veterans were male; therefore disproportionate impact on women Issue: is there a discriminatory purpose? o : presumption that a person intends the natural and foreseeable consequences of his voluntary actions o Ct disagrees  Discriminatory purpose implies that the decision-maker selected or reaffirmed a particular course of action at least in part b/c of not merely in spite of its adverse effects upon and identifiable group

Village of Arlington Heights v. Metropolitan Housing Devlp. (pg. 797) y applied to for the rezoning of a 15-acre parcel from single-family to multi-family classification denied the request y : denial was racially discriminatory and therefore violated the 14th Amendment y Ct: o Proof: when there is proof that a discriminatory purpose has been a motivating factor in the decision, judicial deference is no longer required  Need only show that discrimination was a motivating factor does not need to show that it was the sole factor  If discrimination is shown to be a substantial factor: y Burden shifts to the govt. to show the same decision would have been made absent the discriminatory factor y can rely on both circumstantial and direct evidence o Greater bearing on one race than another can be an initial consideration o Pattern of governance, neutral independently on its face, but inexplicable on grounds other than race is considerable o Sequence of events leading up to decision o Departure from normal procedural sequence o Legislative history o The impact of s decision does arguably weigh more heavily on minorities, but there is little in the sequence of events leading up to the decision that would spark suspicion ii. Proof of discriminatory effect also required or is purpose sufficient by itself? Palmer v. Thompson (pg. 793) y After declaration that segregation of city pools was in violation of EPC, the city closed the pools rather than choosing to integrate them o Issue: is closing of the pools a state action which denies equal protection of the laws to blacks?  This is not a case where whites are permitted to use the pools while blacks are not y Claim: city action violates EPC b/c the decision to close the pool was motivated by a desire to avoid integration of the races i.e. discriminatory intent y Ct: issue is whether blacks were denied their constitutional rights when the city closed the pool to both blacks and whites equally No o Therefore, discriminatory purpose alone is insufficient c) Application: Discriminatory use of Preemptory Challenges

4. Remedies: The Problem of School Segregation a) Introduction i. Invalidating the discriminatory law a. i.e. proclaiming laws prohibiting interracial marriage to be unconstitutional and therefore invalid laws ii. Injunction prohibiting the offending conduct a. Declaration of unconstitutionality of segregation law and injunction to prevent continued segregation iii. Required action by parties a. Desegregation of schools required further than an injunction to prohibit continued segregation: schools had to be restructured Brown v. Bd. of Education II (pg. 802) y Commencement of further proceedings to determine appropriate means of remedy from Brown I y Remedy o Case for rapid integration  Manifested or likely intended resistance impels a stronger commitment to a powerful remedy  Court should act in its own authority  Continued harm to individuals as a EPC violation o Case for incremental process  Implementation is difficult y Varying conditions in areas y Requires local remedies and enforcement  Resistance/backlash re: safety  Overstepping the judicial role y Remanded back to lower courts for implementing the decision of the Sp. Ct. o Lower courts proximity to the local conditions and specific needs of the community o Require a good faith effort  as soon as practicable and with all deliberate speed o Primary authorities vested in school officials b) Massive Resistance i. Cooper v. Aaron: attempt by Governors and State legislatures to avoid observance of Sp. Ct. s decision a. Marbury v. Madison: federal judiciary is supreme in the exposition of the law of the Constitution ii. Griffin v. County: VA school closed rather than desegregate a. Sp. Ct. declared it unconstitutional for a school to close on the grounds of race and in opposition to desegregation iii. Green v. County: VA freedom of choice plan was inadequate to remedy school boards have an affirmative duty to desegregate iv. Civil Rights Act of 1964 Title VI a. prohibited discrimination by schools receiving public funds b. authorized US Attorney General to intervene in desegregation suits c) Judicial Power to impose remedies in school desegregation cases Swann v. Charlotte-Mecklenburg Bd. of Education (pg. 806)

y y

Issue: to review the duties of school authorities and the scope of powers of federal courts under Sp. Ct. s mandates to eliminate racially separate public schools established and maintained by state action Duty: to end the effect of past discriminatory practices eliminate all vestiges of state-sponsored discrimination o Racial balances or racial quotas  Useful starting point  Knowledge of a school s current make-up and district composition o One-race schools  Requires close scrutiny  Allows for basic assumptions o Remedial altering of attendance zones  Race-conscious gerrymandering can be necessary o Transportation of students  Bussing  Courts have discretion in equity to weight the soundness of any transportation plan

Milliken v. Bradley (pg. 810) y Issue: whether the federal court can implement a multi-district integration program to remedy a single-district segregation problem o All the minorities were contained in a single school district y Ct: o b/c the suburban districts were not maintained w/ dual-segregated schools  The suburbs had one-race schools, but only all-white or all-black not both o and the lines establishing the districts were not drawn with the intent to discriminate o the court could not force segregation  without an interdistrict violation and interdistrict effect there is no constitutional wrong calling for an interdistrict remedy d) When should federal desegregation remedies end? Bd. of Education of OK city Public Schools v. Dowell (pg. 813) y The court says that a school system is unitary when the effects of past discrimination are remdied o At this point, the district court s authority to run the school district ends y Court: district court s regulatory control of school system cannot extend beyond the time required to remedy effects of part intentional discrimination o So lack of integration is not enough it must be attributable to state action (de jure, not de facto) y So, Dowell established that District Courts must get out of the mix whe remaining vestiges of discrimination are no longer attributable to state action (this is the first requirement for district courts getting involved in the first place) Parents Involved in Community Schools v. Seattle School Dist. No. 1 (pg. 816) 5. Racial Classifications Benefiting Minorities (Affirmative Action) a) Issues presented i. What level of scrutiny should be used; are racial classifications designed to benefit minorities subject to strict scrutiny? ii. What purposes are affirmative action programs sufficient to meet the level of scrutiny?

iii. What techniques of affirmative action programs are sufficient to meet the level of scrutiny? b) Emergence of Strict Scrutiny as the Test Richmond v. JA Croson Co. (pg. 835) y Court: strict scrutiny as the level to use in evaluating affirmative action cases at the state and local level o They reject the notion that benign uses of race should receive less scrutiny from the courts  Strict scrutiny is the way benign discrimination is distringuished from invidious discrimination o So the mere fact that a race-based classification is at issue means strict scrutiny will be applied (Loving) o Dissent: amount of scrutiny should be determined by the amount of harm done (Brown) y Court: invalidated Richmond s plan to set aside 30% of public work monies for minority-owned businesses o Minority Business Utilization Plan requires prime contractors to whome the city awarded construction contracts to subcontract o Minority groups included black, Spanish speaking, Asians, Eskimos, Indians and Aluets y No evidence of discrimination against minority subcontractors o Statistics are not enough in this case to show societal discrimination c) Arguments For/Against Strict Scrutiny d) Use of Race to Benefit Minorities in College/University Admissions Grutter v. Bollinger (pg. 847) y Court upholds racial classification used in UM s Law School admissions process y The school used GPA, LSAT and several other soft-factors: essays, LOR, and diversity o Included racial and ethnic diversity for inclusion of students historically discriminated against  But not solely racial and ethnic diversity y UM s state purpose was to obtain the educational benefits that flow from a diverse student body o The court agrees that a diverse student body offers many benefits and is a compelling interest that can justify the use of affirmative action y Narrowly tailored? o Cannot use quota system: must be flexible to consider all pertinent elements  Desire for a critical mass does not create the standard of a quote system o Cannot unduly harm members of any racial group  Should only be used as a plus factor in the context of individualized considerations  Should eventually be phased out y Strict scrutiny lite: deferring to school s assertion that diversity is essential to its educational mission Gratz v. Bollinger (pg. 865) y Court held that a college admissions policy which gives race heavy weight in admissions in unconstitutional y Admissions policy used by UM s LSA applied 2- points to an applicant for being a minority race 100 points guaranteed admission o Resulted in more qualified non-minorities being turned down y Grutter: diverse student body is a compelling interest, but in this case it is not narrowly tailored y Dissent: lower level of scrutiny in cases of race consideration for the purpose of achieving equality D. Gender Classifications 1. Level of Scrutiny a) Early cases approving Gender Discrimination

i. Bradwell v. State of Illinois: upheld state law which prohibited women from being licensed to practice law a. Not a privilege as protected by the P&I clause b. Concurrence: role of women as wife and mother ii. Lochner Era: invalidation of laws prohibiting right to contract a. More willing to uphold laws that regulated women b) Emergence of Intermediate Scrutiny i. Factors a. History of discrimination b. Classifications generally based on stereotypes rather than important government interests c. Immutability ii. Strict v. Intermediate a. 14th amendment intended for racial protection b. Biological difference between men/women make it more likely that a gender classification could be justified c. Women as a political majority iii. Reed v. Reed: allowed women to be executor of estates a. Ct: applying rational-basis 1) Actual application was a heightened std. Frontiero v. Richardson (pg. 882) y Federal law automatically allowed a man to claim his wife as a dependent to receive medical benefits o Women could only get benefits for spouse if she proved that her spouse was dependent on her y Plurality decision: 4 justices applied strict scrutiny o Suspect class?  Long unfortunate history of sexual discrimination  Immutable characteristic determined at birth  Expected relevance of trait low y There is no distinction between the sexes in ability to perform, so when a govt. draws this distinction, requires heightened suspicion o Dissent Rehnquist; others concurred but did not apply strict scrutiny y Justification for policy o Administrative convenience: ct. says this is not a compelling interest y Court actually applies intermediate scrutiny in actuality Craig v. Borden (pg. 884) y OK law prohibits sale of low-alcohol content beer to men under 21 and to females under 18 y Level of Scrutiny? o classifications by gender must serve an important govt. objective and must be substantially related to achievement of those objectives y State purpose: enhancement of traffic safety o Ct: protection of public health and safety represents an important state interest  Data does not support the conclusion that gender-based distinction closely serves this objective  Law is Overinclusive US v. Virginia (pg. 888)

y y

VMI excluded women, women created VMI institute for women after order from 4th Circuit VA defended purpose of the institute to create citizen soldiers was not suitable for women o VWIL shared the same mission but lacked the adversative method as well as the education and financial opportunities Ct: enhanced intermediate scrutiny o exceedingly persuasive justification  1: single-sex education provides important educational benefits y Ct: benefit is exclusive to men  2: method would have to be modified to admit women y Ct: goal is not diminished by inclusion of women

2. Proving the Existence of Gender Classification a) When is it Discrimination? i. On the Face of the Law a. Craig v. Borden b. VMI ii. Facially gender neutral; requires proving both a discriminatory impact to the law and a discriminatory purpose behind it a. Feeney Geduldig v. Aiello (pg. 893) y CA law provided payments for disabilities lasting more than 8 days and less than 26 weeks, but denied any coverage for disabilities caused by pregnancy y Class distinction: those able to become pregnant (women only), and those not capable (all men and some women) y State s purpose: cost system would be unsustainable to allow pregnancy benefits o Irrelevant to whether the exclusion is a gender-based classification o IS relevant as to whether there is a sufficient govt. justification  Depending on the level of scrutiny y Ct: applies rational basis o Underinclusive: state has chosen to insure most risks of employment discrimination but not all  2 groups: pregnant women and non-pregnant men and women y Benefits apply to members of both sexes y No risk for which a man would be protected and a woman would not o And vice versa o Legitimate interest in preserving the self-supporting nature of its insurance program y Overruled by Pregnancy Discrimination Act o Defined sex discrimination to include pregnancy discrimination 3. Gender Classification Benefiting Women a) Based on Role Stereotypes (not permitted) Orr v. Orr (pg. 896) y Alabama law that allowed women, but not men, to receive alimony in cases of divorce y State interest: to provide help for needy spouses to assist wife of a broken marriage y Ct: sex is not an adequate proxy for need o Underinclusive: needy spouses who are male  Underinclusion is an issue in applying heightened scrutiny

If interest is to provide for needy spouses o no substantial relation to interest  alimony is decided on a case-by-case basis in divorce so there is no need for this provision  based on stereotypes y is it a stereotype if it is based on truth? y Court has rejected presumption of stereotype of economically dependent women and independent men y Discrimination must be looked at on an individual level o Therefore, generalizations are typically not acceptable for EPC

Mississippi Univ. for Women v. Hogan (pg. 898) y State policy of operating nursing schools that excluded men y Exceedingly persuasive justification intermediate scrutiny o Important govt. objective  Must be free from archaic/stereotypical justifications y Goal to exclude or protect members of a gender group b/c of a presumed handicap/inferiority: inherently illegitimate  An only-female college combating the historical discrimination against women at other programs y Gender-based favor of one sex is allowed if to compensate for a disproportionate burden if action is directly related to alleviating that burden o Substantial relation  Women have not been discriminated against in the field of nursing  Therefore, the purpose of compensating women in a field that they have been disproportionately burdened is not satisfied by the action Michael M. v. Superior Court of Sonoma County (pg. 901) y State law defines statutory rape in a means that only applies to men y Justification: to prevent illegitimate teenage pregnancies o Disproportion of teenage pregnancy  Only women can become pregnant  Disproportionate physical/emotional/psychological consequences of sexual activity y Substantial relation? o b/c women are already deterred b/c of the risk of pregnancy o statute creates consequences for the gender-group who suffers little inherently in comparision to the other gender-group o gender-neutral statue would not have the same effect  women would be less likely to report violations of the statute is she were to be subject to criminal prosecution y Dissent Brennan: based on stereotype o Statute enacted with the purpose to protect women b/c they are considered to be incapable of consenting y Dissent Stevens: increased risk to women is a justification that the law should be applicable to both genders o Objective is to deter conduct which the gender-based statute allows the at-risk gender to use judgment and accept the risk at their own consent

Rokster v. Goldberg (904) y Military Selective Service Act requires registration of men and not women o Congress had constitutional authority to raise/support armies  Enacted MSSA to empower President to require registration of male citizens and male resident aliens 18-26 y Interest: raise and support armies o Held to be an important govt. interest y Issue: whether congress decision to only require registration of males denies equal protection of the laws? o Not whether the court would have chosen a gender-neutral alternative y Substantial justification? o Extensive hearings establish that decision to exclude women was not based on the accidental biproduct of stereotypes of women o Must be considered in a war-time emergency requiring draft  This was the context that congress considered in application of the law o Objective: need for combat troops women not eligible for combat  Therefore, women would not be needed in the time of a draft b) Benefiting Women as a Remedy (generally permitted) i. Permitted when they are designed to remedy past discrimination or differences in opportunity Califano v. Webster (pg. 908) y Social Security Act has different standards for determining average wage o Benefit to women: able to eliminate 3 of their lower earning years in comparison to men y Important govt. interest: to compensate women for past economic disadvantages o System operated directly to achieve this purpose c) Benefiting Women b/c of Biological Differences between Genders Nguyen v. Immigration & Naturalization Services (pg. 910) y Different naturalization requirements for child born to one citizen and one non-citizen unmarried parents and the child is born outside the US o Lesser requirements if the citizen-parent is the mother y Interest 1: o Not similaraly situated: fathers and mothers are not similarly situated re: proof of parenthood  Fathers need not be present at birth  Expense and questionable accuracy of DNA testing (2001) y Interest 2:greater potential relationship between mother and child o Biological relationship as a result of gestation period E. Congressional Power to Enforce the post-Civil War Amendments 1. Who may Congress Regulate under the Post-Civil War Amendments? US v. Morrison (pg. 250) y Does section 5 of the 14th amendment grant congress power to act in this case o Constitutionality of civil damages provision of the Violence Against Women Act y Private interference with the effective exercise of state s rights y Court doesn t interpret the 14th amendment and congress power in such a way as to upset the balance the framers had struck between states and the federal govt.

2. What is the scope of Congress power? Katzenbach v. Morgan and Morgan (pg. 253) City of Borne v. Flores (pg. 258) F. Counting uncounted votes in a Presidential Election Bush v. Gore (pg. 1110) y Rule 1 from this case is that a state must at least in some circumstances avoid arbitrary and disparate treatment of the members of its electorate o What are those circumstances? When a fundamental right is implicated  So the Court obviously decides that a fundamental right has been implicated, which is strange (the right to vote for a president is a fundamental right come back to this later Rule 3)  The Court holds that the process set up by the FL SC is too vague and does not assure equal application therefore the FL system needed to set up clear standards for equal application of the counting process  However, note that the Court says that the application of the recount process HAD led to unequal treatment the recount process had been enjoined by the Court, though, and so could not have possibly led to unequal application y If what they had already done was an unequal application (the vote totals pointed to an unequal application), then the Court was allowing something to occur which was actually a violation of Bush v. Gore y Rule 2 from this case is that a practice or standard that is neutral on its face enacted without discriminatory intent may nevertheless violate the equal protection clause if it has a differential impact or presents a substantial potential to produce a differential impact o This contradicts the rule from WA v. Davis (purpose required) which has since been reaffirmed y Rule 3 form this case is that a right can be fundamental under the Constitution even if it is revocable at the complete discretion of a branch of the state government o Fundamental Right issue  Test y Is the right fundamental? y Is there a good enough justification for the infringement of the fundamental right  The Court here finds a fundamental right based on the unequal treatment, rather than by looking just at the right y Why did the Court do this? Voters have no inherent right to vote for president state legislatures have unbridled discretion in deciding who can vote and may revoke the right to vote at will y Problems from this case involving things the Court did not do o The Court did not protect the right to vote and in fact protected the right not to vote  Some of these uncounted ballots will be treated unequally to other uncounted ballots; in other words we shouldn t count them at all because there will be some that still can t be counted b/c the intent won t be discernible (court s premise)  What the Court does is say that if one vote is not counted, then other equal votes should not be counted either o The Court never applied the strict scrutiny test y Court stated that: Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities. o This seems to mean that the case did not set precedent in any way and could not be used to justify any future court decision, and some suggested that this was evidence the majority realized its holding was untenable. This is a departure from the stare decisis principle.

Individual Rights to Freedom of Expression and Belief A. Freedom of Expression 1. Introduction a) Historical background i. English law requiring govt. license for publication ii. Strict libel for govt. criticism a. No defense of truth iii. Little indication of framer s intent b) Why should Freedom of Speech be a fundamental right? i. Self-governance: the ability to criticize the govt. is the central meaning of the 1st Amendment ii. Discovering truth: the market place of ideas iii. Advancing Autonomy: the 1st amendment serves not only the needs of the polity but also those of the human spirit iv. Promoting tolerance: 1st amendment concerned w/ nothing less than helping shape the intellectual character of society 2. The Framework and Significance of Content-Based Regulations a) Distinction between Content-Based and Content-Neutral Laws i. Importance of Distinction Turner Broadcasting v. FCC (pg. 1214) y Federal law requiring cable companies to carry local broadcast stations y Content-neutral: applies to all speech regardless of the message o i.e. law prohibiting the posting of all signs on public utility poles is content-neutral b/c it applies to every sign, regardless of content y Court: content-neutral b/c they were required to include all stations whatever their programming o a content neutral regulation will be sustained under the 1st amendment if it advances important govt. interests unrelated to the suppression of free speech and does not burden more speech than is substantially necessary o Narrowly tailored: b/c the burden imposed by must carry is congruent to the benefit it affords, must carry is narrowly tailored to preserve the multiplicity of broadcast stations y Dissent O Connor, Ginsburg, Thomas (concur in part, dissent in part) y Content-based: must pass strict scrutiny y Content-neutral: intermediate scrutiny b) How is it determined whether a law is content-based? i. Content-neutral: regulation of speech is both viewpoint-neutral and subjectmatter-neutral a. Viewpoint-neutral: not based on the ideology of the message 1) i.e. allowing pro-choice to protest but not pro-life Boos v. Barry (pg. 1219) y Issue: whether the law in question is viewpoint based y Law restricted speech critical of foreign govt.s near a foreign embassy y Govt.: justified based on int l law obligation to shield diplomats from speech that offends their dignity y Court: law unconstitutional

II.

Law was justified only by reference to the content of the speech regulation focuses only on the content of the speech and direct impact speech has on its listeners  Not viewpoint based: display clause determines which view point is acceptable in a neutral fashion by looking to policies of foreign govt.s  Is content based: a regulation that does not favor either side of a political controversy is nonetheless impermissible b/c: y Hostility to content-based regulations extends to public prohibition of public discussion of an entire topic y An entire display of speech here, signs or displays critical of govt., is not permitted

b. Subject-matter-neutral: govt. cannot regulate speech based on the topic of the speech 1) Carey v. Brown: ordinance prohibiting all picketing in residential areas unless it was labor picketing connected to place of employment a. Court: unconstitutional b/c it allowed speech if it was the subject of labor, but not otherwise b. Public places: whenever govt. tries to regulate speech in public places, must be subject-matter-neutral Republican Party of Minnesota v. White (pg. 1221) y Law prohibited candidates for elected judicial office from making statements about disputed legal or political issues y Ct: law was content-based undisputed that the law was subject-matter-based o Prohibited speech on some issues, allowed on others o Scalia, Rehnquist, O Connor, Kennedy, Thomas y Viewpoint-neutral: prohibited from discussion controversial topics regardless of position on the issue c) Problems in applying the distinction between Content-Based and content-neutral laws i. Does a permissible purpose for a law prevent it from being deemed content-based, even if content restriction is on the face of the law? City of Renton v. Playtime Theatres (pg. 1233) y Zoning oridance enacted by city that prohibits adult motion picture theatres from locating w/in 1,000 feet of any residential zone, family dwelling, church, park or school y Court: law is neutral b/c it was motivated by desire to control the secondary effects of adult movie theatres, such as crime, and not restrict speech y Test: whether a law is content-base or content-neutral is not determined by the terms of the law, but rather the justification o Law that is justified in content-neutral terms is deemed content-neutral o Critics: the govt. can always point to some neutral/non-speech justification for its actions y Aftermath: confuses whether a law is content-based or neutral w/ the question of whether a law is justified by a sufficient purpose o Cincinnati v. Discovery (pg. 1235)  court declared unconstitutional a prohibition on the use of newsracks on public property for the distribution of commercial handbills y city: secondary concern of such newsracks re: safety and aesthetics  court rejected held it was content-based

y y RULE o

basis for the regulation is the difference between content of ordinary newspaper and commercial handbills o whether a particular newsrack falls w/in prohibition depends on the content of the publication on the rack distinguished from Renton: no secondary effect attributable to commercial newsracks that distinguish them from permitted newsracks

A law that on its face regulates speech based on its viewpoint or subject-matter will be presumed to be content-based  Govt. can refute by persuading the court that the regulation is justified by a content-neutral desire to avoid undesirable secondary effect of the speech  Justification must be truly unrelated to the desire to suppress speech and it must be unique to the speech suppressed as compared to the speech allowed

Pleasant Grove City v. Summum (pg. 91S) y Content-based regulation held constitutional because the government was the speaker. y The government denied petitioner s request to place a permanent religious monument in a public park, where the park already contained privately donated monuments. y The private monuments on public property represented government speech. Permanent monuments displayed on public property typically represent government speech. y The Free Speech Clause prohibits government regulation of private speech; it does not regulate government s own speech. Government may freely express its own speech also when it receives assistance from private sources for the purpose of delivering a government-controlled message. y The government engaged in expressive conduct by accepting the donation and choosing to display it in the park. y The government did not favor certain viewpoints by disallowing some monuments because the monuments could have different meanings for the government and the private donors. The government entity does not necessarily endorse the specific meaning that any particular donor sees in the monument. y The monuments were permanent, not temporary; the latter which is simply associated with the private group not the government. y The government must reject some monuments because of the space restraints of a park. y The public forum doctrine says that the government cannot discriminate in public areas for things like the holding of marches and demonstrations. The park was not an open forum because there was no history and tradition of using the park as an open forum. y In the usual situation here, the petitioner will want to use the park for a temporary protest or display of speech. The question then becomes on what basis did the government deny the permit to use the park- was it a contentbased reason or a time, place, manner regulation? y The more the government exercises regulation and control over an area, the more the speech itself becomes the government s speech, and then the regulation becomes the government s speech.

ii. Situations in which the govt. must make content-based choices a. Public library deciding which books to buy b. Public university evaluating professor s writing for purposes of tenure National Endowment for the Arts v. Finley (pg. 1236) y Federal regulations of the arts challenged those that provide grants to artists o Federal statute gives NEA substantial discretion in awarding funds: must take into account general standards of decency y Court: rejected claim that the law was impermissible view-point discrimination

Govt. must make choices among applicants statute does not engender the kind of specific viewpoint that would invalidate it on its face  Viewpoint-neutral for the federal statue to authorize NEA to consider decency and respect for values Dissent Souter: did not agree that the law was viewpoint-neutral

US v. American Library Assn. (pg. 1240) y Federal law requiring libraries receiving federal funds to install filters on their computers y Court: use of internet filtering does not violate patrons 1st amendment rights o Blocks more material than just porn (other permissible content), but user could unblock filter o Cost to individually block all content which is impermissible unreasonable o Public libraries have traditionally dispelled porn o Applies heightened scrutiny (not strict) y Dissent Stevens: overly broad restriction violates 1st amendment y Dissent Souter and Ginsberg

ask

to

just

3. Vagueness and Overbreadth a) Vagueness i. A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is permitted as to not encourage arbitrary or discriminatory enforcement Coates v. Cincinnati (pg. 1248) y Ordinance made criminal offense for three or more persons to assemble on any of the sidewalks . And there conduct be annoying y Court: conduct that annoys some people doesn t annoy others no specified standard of conduct o Laws regulating speech require a greater level of specificity and precision y No litmus test for vagueness laws will always have some level of vagueness o Judicial determination of inadequate notice of what speech is prohibited and what is allowed b) Overbreadth i. A law is overbroad if is regulates substantially more speech than the Constitution allows to be regulated; and ii. A person to whom the law constitutionally may be applied can argue that it would be unconstitutional as applied to others Schad v. Borough of Mt. Ephraim (pg. 1249) y Appellants operated an adult book store in the commercial zone of NJ also had nude-dancing o Law: criminal penalties under an ordinance prohibiting live adult entertainment o Court: law prohibits live entertainment y Two aspects o Substantially overbroad  Broadrick v. OK: where conduct and not merely speech is involved, must be substantially overbroad in relation to the statute s legitimate scope y If not substantially overbroad, cannot be held facially unconsittutinoal particular applications of the law could be declared unconstitutional on case-by-case analysis

Houston v. Hill: substantial may be proven by a significant number of situations where the law could be applied to (insubstantially) prohibit protected speech Unconstitutional application to others  Exception to general standing principle that requires people to only assert their own rights  Sec. of State v. JH Munson: where the claim is that a statute is overly broad in violation of the 1st amendment, the court had allowed a party to assert the rights of another w/o re: to the ability of the other to assert his own claim and w/ no requirement that the person making the attack demonstrate that his own conduct not be regulated by a statute drawn w/ the requisite narrow specificity  does not apply in challenges to laws regulating commercial speech

c) Relationship i. Both involve facial challenges to laws ii. Understood as overlapping, not identical iii. Can be one, but not the other Bd. of Airport Commissioners of LA v. Jews for Jesus (pg. 1253) y Law banning all 1st amendment activities in LAX o LAX is not open for 1st amendment activities o Overbroad: reaches beyond the prohibition of activity of J but also a sweeping ban on all individuals who enter LAX  Not defendable by any conceivable govt. interest o Vague but not overbroad: if ordinance prohibited all speech not protected by 1st amendment US v. Stevens (pg. 100S) Background: Defendant was convicted, in the United States District Court for the Western District of Pennsylvania, Alan N. Bloch, J., of violating statute prohibiting depictions of animal cruelty. Defendant appealed. The United States Court of Appeals for the Third Circuit, Smith, Circuit Judge, 533 F.3d 218, vacated the conviction. Certiorari was granted. Holding: The Supreme Court, Chief Justice Roberts, held that federal statute criminalizing the commercial creation, sale, or possession of depictions of animal cruelty was substantially overbroad, and thus, the statute was facially invalid under the First Amendment protection of speech. 4. Prior Restraints a) What is a prior restraint? i. An administrative system or a judicial order that prevents speech from occurring ii. Collateral Bar Rule: a person violating an unconstitutional law may not be punished, but a person violating an unconstitutional prior constraint may be punished a. Unless the constraint was transparently invalid or had only a frivolous pretense to validity 1) Poulus v. NH: court confirmed an individual s conviction for conducting religious service in a public park w/o the required license a. Not allowed to challenge the denial of the license as arbitrary/unconstitutional when the licensing system is

facially valid and he proceeded w/o a license rather than challenge its denial b. Facially valid b/c it contained adequate safeguards and standards 2) Shuttlesworth v. City of Birmingham: court overturned conviction of civil rights protestors who violated city s ordinance by having demonstration w/o the required permit a. Permit law was unconstitutional b/c it gave officials unfettered discretion in granting/denying permits did not apply CBR: so blatantly unconstitutional b. Facially invalid b/c of the absence of criteria to limit administrative discretion b) Are prior restraints really so bad? i. Court orders to protect National Security NY Times v. United States (pg. 1260) y NY Times published excerpts from a top secret defense dept. history of the Vietnam War o US sought federal injunctions precluding publication on national security grounds y Court: court order stopping publication violated the 1st amendment reiterated heavy burden against prior resrtraints y 2 major questions remain: o What circumstances, if any, would justify a court order preventing publication as to protect national security? o What differences, if any, would it make if there was a statute authorizing a prior restraint? y Concurrence Black/Douglas: overwhelming 1st amendment interest, therefore no injunctions for prior restraint ever y Concurrence Brennan: narrow application of prior restraint in time of war if govt. can show o Irreparable harm that is inevitable, direct and immediate o A necessity y Concurrence Stewart/White o executive must safeguard the information in the first place y Dissent Burger/Harlan: o No absolutism o Facts and development b/c of hasty procedures o Should slow down o role of courts is deference ii. Court orders to protect Fair Trials a. Court orders as prior restraints as injunctions against pretrial coverage of legal proceedings so as to enhance a criminal defendant s ability to receive a fair trial Nebraska Press Assn. v. Stuart (pg. 1268) y was tried for 6 murders NE trial court issued injunction preventing the media from publishing or broadcasting accounts of a confession y Court: very strong presumption against court orders preventing pretrial publicity as a way to protecta fair trial b/c the barriers to prior restraint must remain high y 3 requirements

o o o

Nature and extent of pretrial news coverage Whether other measures would be likely to mitigate the effects of unrestrained publicity How effectively a restraining order would operate to prevent the threatened order

5. Compelled Speech West Virginia Bd. of Education v. Barnette (pg. 1294) y State law requiring schoolchildren to salute the flag o Failure to do so=insubordination dealt w/ by expulsion  Readmission upon compliance o Meanwhile, considered unlawfully absent  Assenting parents to prosecution y Jehovah s Witnesses religious beliefs preclude them from following law o Compulsory flag salute/pledge requires affirmation of a belief and an attitude of mind y Constitution allows censorship or suppression of expression of opinion o Only when the expression presents a clear and present danger of action of a kind the state is empowered to prevent/punish y Court: unconstitutional cannot compel citizens to prescribe to what shall be orthodox in politics, nationalism, religion and other matters Rumsfeld v. Forum for Academic & Inst l Rights (pg. 1297) The law said that if any part of an institute of higher learning denied military recruiters access to the campus, the entire institution would lose certain federal funds. The Court held the law was constitutional, though finding that the government was not really compelling speech because the schools were not speaking when they allowed military access to their campuses. y y y Congress has broad authority to legislate on matters of military recruiting and may secure campus access for military recruiters indirectly, through its Spending Clause power. The law did not limit what schools may say and did not require them to say anything. Schools may freely express their views on the military employment policy, while still remaining eligible for federal funds. The Court distinguished Hurley (holding that state law cannot require a parade to include a group whose message the parade s organizer does not wish to send) by saying here the schools are not speaking by hosting military recruiters, so they do not have the autonomy to choose the content of their message. Schools providing services (e.g. e-mails and fliers advertising the recruiting) is only compelled speech to the extent that the school provides such speech to other recruiters. There is no government pledge or motto that the school must endorse, and the compelled speech is only incidental to the law s regulation of conduct. A school s decision to allow military recruiters access to the campus is not inherently expressive and there is little likelihood that the views of those engaging in the expressive activities would be identified with the owner. The expressive component of the school s actions is not created by the conduct itself (i.e., is not inherently expressive) but by the speech that accompanies it. Unconstitutional conditions o If govt. cannot do it directly, then govt. can t use the spending power to coerce it  I,e, cannot do it indirectly  Court: in this case they could have done it directly o No limit on what law schools may say (against DADT) 6. Unconstitutional Conditions a) Govt. cannot condition a benefit on the requirement that a person forgo a constitutional right

y y y

i. Nor can they deny a benefit to a person b/c he exercises a constitutional right Rust v. Sullivan (pg. 1309) y Challenge to a federal regulation that prohibited recipients of federal funds for family planning services from providing counseling concerning the use of abortion as a method of family planning y Court: upheld the regulation on the ground that the govt. could decide which activity to subsidize y Criticism: difficult to reconcile w/ the unconstitutional conditions doctrine b/c the regulations expressly condition a benefit, federal funds, on the requirement that recipients forgo constitutional speech o Content-based: denied funds only if the content of the speech was abortion Legal Services Corp. v. Velazquez (pg. 1313) y Restriction on the activities of lawyers receiving funds from the federal legal services corp/ o Prohibition against bringing class action suits and challenging laws regulating abortions y Court: unconstitutional govt. created a limited forum and had impermissibly attempted to control the content of the speech w/in o Did not invoke the unconstitutional condition doctrine: conceptually that is what the court did o The constitution does not permit the govt. to confine litigants and their attorneys in this manner: insulate rules and laws from judicial challenge y This is not govt. speech rather expends funds to encourage the views of private speakers o Forecloses on the rights of clients to receive adequate legal representation Doe v. Reed (pg. 110S) y Background: Petition sponsor and individual signers of referendum sought preliminary injunction prohibiting State of Washington from making referendum petitions available in response to requests under State's Public Records Act (PRA). The United States District Court for the Western District of Washington, Benjamin H. Settle, J.,2009 WL 2392155, granted a temporary restraining order (TRO). On subsequent determination, the District Court, Settle, J., 661 F.Supp.2d 1194, granted a preliminary injunction, and appeal was taken. The United States Court of Appeals for the Ninth Circuit, Tashima, Circuit Judge, 586 F.3d 671, reversed. Certiorari was granted. y Holding: The Supreme Court, Chief Justice Roberts, held that as applied to referendum petitions in general, disclosure requirements of PRA were sufficiently related to the State's interest in protecting the integrity of the electoral process to satisfy the exacting scrutiny standard applicable to First Amendment challe

7. Unprotected and Less Protected Activity a) Categories of less protected speech i. Commercial speech ii. Some types of sexually oriented speech deemed to be of low value iii. RAV v. St. Paul: generally content-based distinctions within categories of unprotected speech must meet strict scrutiny b) Incitement of Illegal Activity i. Introduction a. Balance of need for social order against desire to protect freedom of speech b. Espionage Act of 1917: made it a crime when the country was in a time of war for any person to willfully make or convey false reports or

statements w/ the intent to interfere w/ the military success or promote the success of enemies c. Sedition Act of 1918: prohibited individuals from saying anything w/ the intent to obstruct the sale of war bonds; to utter, print, write or publish any disloyal, profane, scurrilous, or abusive language intended to cause contempt or scorn for the form of the govt. of the US, the Constitution, or the flag; to urge the curtailment of production of war materials w/ the intent of hindering the war; or to utter any words supporting the cause of any country at war w/ the US ii. Clear and present Danger Test Schenck v. US (pg. 1324) y Individuals convicted for circulating leaflet against the war o Sent to men who had been drafted o Made constitutional arguments against the draft y Court: intended to influence individuals to refrain from the draft o Context: war times o Clear and present danger: words used to bring about substantive evils which Congress has the right to prevent Frohwerk v. US (pg. 1325) y s published German magazine criticizing the war can called for an end to the war y No effort to direct solely at men entering the draft y Conviction plausible: potential circulation among military quarters little fire was enough to kindle the flame Debs v. US (pg. 1326) y 2 counts o Gave public speech caused and attempted to cause incitement of insubordination by refusal of duty in the military o Gave another speech which intended to obstruct recrutiting y Both speeches focused on the benefits of socialism o Acknowledged that there were things he wanted to say but couldn t  Other violators were working towards human-betterment y Court: still had the intent to oppose the war Abrams v. US (pg. 1327) y Convicted of conspiring to violate provisions of the Espionage Act as amended as of 1918 o Conspiracy in war time y Court upheld conviction eventhough speech had nothing to do w/ WWI or the draft y Dissent Holmes o No intent proven to interfere w/ war o Recognizes increased power for regulation of speech in war-times iii. The Reasonableness Approach a. Criminal syndicalism laws: statutes that made it a crime to advocate the overthrow of the US govt. or industrial org. by force upheld laws and

their applications so long as the govt. s law and prosecution were reasonable b. Basically: reasonable infringement of (limited) fundamental rights related to govt. interest in public safety Gitlow v. NY (pg. 1330) y guilty of publishing left0wing manifesto, violating statute prohibiting advocating overthrowing the govt. y Issue: whether the statute deprived of his liberty of expression in violation of the DPC of the 14th amendment o Freedom of speech and press among the fundamental rights protected by 14th amendment y Interest: protection of public safety o Presumption of reasonable exercise of authority deference to the legislature y Immediacy of danger is not any less b/c the effect cannot be accurately foreseen y Dissent Holmes: would be unconstitutional under the clear and present danger standard Whitney v. California (pg. 1333) y was a member of the Communist Labor Party o Testified it was not her intent the CLP should be a instrument of terrorism or violence y Statute sought to punish those who knowingly become a member of organizations determined to be against state s intended public peace y Court: peace and welfare of the state is a valid exercise of police powers o Infringement on rights not unreasonable iv. Risk Formula Approach (McCarthy trials) Dennis v. US (pg. 1337) y convicted of conspiring to organize the Communist Party of US o Group supposedly advocated overthrow of US y Smith Act: illegal to advocate the overthrowing of the US or help organize any society which advocates such y NEW clear and present danger test o Courts must ask on a case-by-case basis whether the gravity of the evil discounted by its improbability justifies such an invasion of free speech as is necessary to avid the danger o Probability and imminence irrelevant: if harm is great enough, the speech advocating it can be punished w/o a showing of likelihood or imminence y Court: organization of the party whose intent is to overthrow the govt. by force creates a clear and present danger v. The Brandenburg Test Brandenburg v. Ohio (pg. 1343) y Ohio Criminal Syndicalism statute y s convicted under statute for voluntarily assembling w/ a society formed to teach or advocate the doctrines of criminal syndicalism y Multiple films of s meeting a declaring racist rants while in possession of a gun and the bible y Distinction between teaching of the moral propriety of violence/force and conduct preparing a group for violence/force o Advocacy vs. incitement y Statute unconstitutional b/c it does not distinguish from legally permissible free speech y Requirements for incitement o Imminent harm

o o

Likelihood of producing illegal action Intent to cause imminent illegality

Holder v. Humanitarian Law Project (pg. 123S) Background: United States citizens and domestic organizations seeking to provide support for lawful activities of two organizations that had been designated as foreign terrorist organizations sought injunction to prohibit enforcement of criminal ban on providing material support to such organizations. The United States District Court for the Central District of California, Audrey B. Collins, J., 2001 WL 36105333, entered permanent injunction against applying to plaintiffs the bans on personnel and training support. On appeal, the United States Court of Appeals for the Ninth Circuit, 352 F.3d 382, affirmed, but, on rehearing en banc, 393 F.3d 902, vacated its decision and remanded to the District Court, which consolidated case with another case challenging expert advise or assistance provision of the ban. On remand, the District Court, 380 F.Supp.2d 1134, granted plaintiffs partial relief on vagueness grounds. On appeal, the Court of Appeals, Pregerson, Circuit Judge, 552 F.3d 916, affirmed. Petitions for certiorari were granted. Holdings: The Supreme Court, Chief Justice Roberts, held that: (1) material-support statute was not vague as applied to activities plaintiffs wished to pursue; (2) material-support statute did not, as applied to plaintiffs, violate freedom of speech; and (3) material-support statute did not violate plaintiffs' freedom of association 8. Commercial Speech a) Constitutional Protection i. Valentine v. Christensen commercial speech was not protected by the 1st amendment ii. Bigelow v. VA: modified rule commercial speech received some protection a. speech is not stripped of 1st amendment protection merely b/c it appears as a commercial advertisement VA Bd. of Pharmacy v. VA Citizens Consumer Council (pg. 1429) y VA law prohibited pharmacists from advertising the prices of prescription drugs y Court: overruled in favor of commercial speech economic interests of the speaker should not matter in deciding whether speech is protected by the 1st amendment o Compelling interest: consumer has an interest in the free flow of commercial information  Especially information about drugs  Relevance to the political process: private economic decisions must be intelligent and well informed y Does not hold that commercial speech can never be regulated b) Test for Evaluating Regulation of Commercial Speech i. 4 types of govt. regulations a. Laws that outlaw advertising of illegal activities: no protected b. There is a prohibition of false and deceptive advertising: not protected c. Govt. may prohibit true advertising that inherently risks becoming false or deceptive: stressed inherent danger of deception in speech

d. Laws that limit commercial advertisements to achieve other goals; such as enhancing the image of lawyers or decreasing the consumption of alcohol Central Hudson G&E v. Public Service Commn. of NY (pg. 1436) y State law prohibited promotional advertising by an electrical utility promoting energy use in order to conserve fuel and b/c utility had a monopoly and therefore did not need to advertise y Test: Intermediate Scrutiny o Whether expression is protected under the 1st amendment  Must not be misleading and at least concern lawful activity o Is the govt. interest substantial?  If yes, then o Does the regulation advance the govt. s asserted interest; and o Whether it is not more extensive than is necessary to serve that interest y Court: (1) utility s advertisements were truthful and not deceptive; (2) govt. had a substantial interest in discouraging energy consumption; (3) directly advanced the interest in reducing energy consumption; (4) could have advanced goals by means less restrictive o Less restrictive means: interest in conservation cannot be protected adequately by more limited regulation of commercial speech o Govt. has burden of proof to demonstrate that the Central Hudson test is met in order to justify the restriction i.e. intermediate scrutiny ii. Is Least Restrictive Alternative Analysis applicable? a. Change from means less restrictive to a means must be narrowly tailored to achieve the desired objective c) Other interests i. Tobacco Lorillard Tobacco v. Reilly (pg. 1451) y Regulation prevented advertising of tobacco products w/in 1,000-feet of the school or playground and must place ads 5-feet off the ground y Court: point of sale advertisements fail 3rd and 4th prong of Hudson test o States goal: to prevent young adults from using tobacco products and curb demand  5-foot rule does not advance that goal y Blanket-height provision does not constitute a reasonable fit w/ goal  Narrowly tailored y A fit that is not necessarily perfect but reasonable: scope must be proportional to the interest served B. Religion 1. Introduction a) Constitutional Provisions concerning Religion i. Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof a. Framers did not entrust the liberty of religious beliefs to either clause alone ii. Clauses are complimentary b) History in Interpreting Religious Clauses

i. Brennan: historical record is ambiguous ii. Others: continue to invoke history and framers intent to support religion c) What is Religion? i. Attempt to define under Selective Service Act US v. Seeger (pg. 1669) y Provision which exempted from combat those who by their religious beliefs are opposed to war y Court: the test of belief in relation to a Supreme Being is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption o Crucial inquiry is whether these beliefs play the role of a religion and function as a regulation in the registrants life o Court offered no criteria for assessing whether a particular view is religious under this definition ii. Requirement for Sincerely-held Beliefs a. The judiciary can only determine whether beliefs are sincerely held, not whether they are true or false US v. Ballard (pg. 1672) y Leaders of a religious organization were indicted for mail fraud b/c they asked people to send them donations in exchange for offering to cure diseases y Court: jury could be asked to decide whether their views were sincerely held religious views o But not whether the s had curative powers iii. Relevance of Religious Dogma and Shared Beliefs Thomas v. IN Employment Security Division y Court ruled than an individual could claim a religious belief even though it was inconsistent w/ the doctrines of his or her religion o It is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of the church o Courts are not arbiters of scriptural interpretations 2. No Law Respecting an Establishment of Religion (Establishment Clause) a) Competing Theories i. Strict Separation: to the greatest extent possible, govt. and religion should be separated a. When religion becomes a part of govt., there is inevitable coercion to participate in faith b. A complete prohibition of all govt. assistance to religion would threaten the free exercise of religion 1) Would not be able to supply police, fire or sanitation services ii. Neutrality Theory: govt. must be neutral to religion govt. cannot favor religion over secularism or one religion over another a. Govt. must limit the extent to which it either encourages or discourages religious belief or disbelief, practice or non-practice, observance or nonobservance b. Symbolic endorsement test: to evaluate the neutrality of govt. s actions, the govt. violates the establishment clause if it symbolically

endorses a particular religion or it generally endorsed religion or secularism c. Cap Review v. Pinette: whether it was unconstitutional for the govt. to preclude the KKK from erecting a large Latin cross in a park 1) 7 voted that exclusion violated KKK s free speech and allowing it would not violate establishment clause 2) O Connor: reasonable observer would not perceive it as endorsement of religion by the govt. 3) Stevens and Ginsberg (Dissent): symbolic endorsement exists if reasonable person would perceive govt. support 4) Scalia for plurality: rejected using the test at all where the issue is private speech on govt. property iii. Accommodation: court should interpret the establishment clause to recognize the importance of religion in society and accommodate its presence in govt. a. Establishment clause only violated if govt. establishes a church or coerces religious participation b. Lee v. Weisman: Kennedy found unconstitutional clergy delivered prayers inherently coercive b/c there is great pressure on students to attend their graduation ceremonies and to not leave during prayers (indirect pressures) 1) Scalia and Thomas: defined coercion much more narrowly only if the law requires and punished the failure to engage in religious practices iv. Application County of Allegheny v. ACLU (pg. 1708) y 2 displays o A nativity scene that was placed in a staircase in a county courthouse o Other was in front of a govt. building and included a Christmas tree, a large menorah, and sign saying that the city salutes liberty y Court o 5-4: nativity scene was constitutional o 6-3: menorah was permissible o Stevens: strict separationist approach and argues both symbols should be deemed unconstitutional as violating the establishment clause o Kennedy/Scalia: accommodation would allow both symbols nation s history allows communities to make reasonable judgments respecting accommodation o O Connor: neutrality approach and applied the symbolic endorsement test  Menorah: constitutional b/c was accompanied by a Christian symbol and a non-secular expression concerning liberty  Nativity scene: was alone on govt. property and thus was likely be perceived as a symbolic endorsement of Christianity b) Lemon Test (for the establishment clause) Lemon v. Kurtzman (pg. 1715) y PA and RI statutes provided state aid to church-related schools y Court: both statutes unconstitutional

EC was meant to afford protection against 3 evils o Sponsorship o Financial support o Active involvement of the sovereign w/in religious activity (1) Discriminatory Test o Is there government endorsement of religion?  no govt. endorsement of religion is acceptable even if remote not about degree, concern is merely its existence o would the reasonable public observer believe the govt. endorses religion? (2) Constitutional (Lemon) Test o Statue must have secular legislative purpose  Inquiry here provides no basis for a conclusion that the legislative intent was to advance religion o Principal primary effect must be one that neither advances or inhibits religion o Statue must not foster an excessive entanglement of religion  The character and purposes of the institutions that are benefited  The nature of the aid the state provides  Resulting relationship between the govt. and the religious authority  Programs whose very nature are apt to entangle the state in details of administration o **law is unconstitutional if it fails any prong of the Lemon test i. Requirement for a Secular Purpose a. Stone v. Graham: state law requiring 10 Commandments to be posted on the wells of every public classroom unconstitutional b/c had not secular purpose b. Wallace v. Jaffree: state law that required public school teachers to hold a minute period of silence for meditation and prayer unconstitutional b/c had no secular purpose c. Edwards: primary purpose of the Creation Act is to endorses a religious doctrine, the Act furthers religion in violation of the Establishment clause d. McGowan v. Maryland: upheld constitutionality of state laws requiring businesses to be closed on Sunday 1) Recognized religious significance 2) Provided a non-secular purpose: to provide a uniform day of rest ii. Requirement for a Secular Effect a. Estate of Thornton v. Caldor: law required that no employer may require an employee to work on his/her Sabbath 1) Unconstitutional: created an absolute and unqualified right for individuals not to work for religious reasons not afforded to all employees b. Corporation of the Presiding Bishop v. Amos: exemption for religious organizations from Title VII s prohibition for discrimination based on religion 1) No inconsistent w/ 2nd prong allows churches to advance the religion for which they are established

2) Govt. itself is not advancing religion through its activities or influence c. Differentiate 1) Grant of benefit is advancement 2) Exemption is preventing prohibition iii. Prohibition of Excessive Entanglement a. Forbids govt. action that cause excessive entanglement w/ religion b. Comprehensive, discriminating and continuing court surveillance c. Assistance violates the Establishment Clause if it carries the grave potential for entanglement in the broader sense of continuing political strife over aid to religion c) Religious Speech and the First Amendment i. Religious group access to school facilities a. Widmar v. Vincent: declared school policy preventing student groups from using school facilities for religious worship and discussion unconstitutional 1) Lemon Test a. Exclusion of religious speech was not necessary to be consistent w/ the Establishment Clause b. Any effect of advancing religion would be incidental c. No entanglement; no monitoring CLS v. Martinez (pg. 164S) Background: Student religious organization brought 1983 action alleging that law school's policy of requiring officially recognized student groups to comply with school's nondiscrimination policy violated the organization's First and Fourteenth Amendment rights to free speech, expressive association, and free exercise of religion. The United States District Court for the Northern District of California, Jeffrey S. White, J., 2006 WL 997217, awarded summary judgment for law school. Student organization appealed. The United States Court of Appeals for the Ninth Circuit, 319 Fed.Appx. 645, affirmed, and certiorari was granted. Holdings: The Supreme Court, Justice Ginsburg, held that: (1) student organization was bound by its stipulation of facts; (2) law school's policy was reasonable; and (3) policy was viewpoint neutral

ii. Student Religious groups receipt of Govt. Funds Rosenberger v. Rector & Visitors of UVA (pg. 1722) y UVA withheld any authorization for payments on behalf of petitioner for the sole reason that their student paper primarily promoted a belief in a diety y Court o Denying of funds to religious student group was impermissible content-based discrimination against the group b/c of religious content o Would not violate the Establishment Clause  Govt. program is itself neutral towards religion

 University trying to spread diversity of views Dissent Souter, Stevens, Ginsburg and Beyer: first time court required direct financial subsidies to a religious group

iii. Student-delivered prayers Santa Fe Independent School Dist. v. Doe (pg. 1727) y Student delivered prayers at HS football games o By student chaplain before every game y School District: content-based restriction on speech y Court: disagreed the school had not created a forum where students could say anything they wanted, the message was in fact restricted by the school o School is encouraging and facilitating speech y Purpose and perception of school endorsement o Objective observer would observe the school as endorsing y Coercion? o Court recognized pressure of attending football games is not as strong as desire to attend graduation o However, mandated for some: players, cheerleaders, etc. o Recognized the importance of student participating in activities o Creates decision for students of either being offended by attendance or not attending y Dissent Rehnquist, Scalia and Thomas: when the govt. expresses a secular purpose for an enactment, purpose should be given deferential treatment iv. Religious Symbols on Govt. Property McCreary County v. ACLU (pg. 1731) y Executives of 2 counties posted a version of the 10 Commandments on the walls of their courthouses y County: abandon purpose test of Lemon, here purpose is deceptive o True purpose is unknowable o Court: objective observer can decide y Court re first prong of Lemon: unconstitutional, history of county s actions left no doubt that it was acting w/ the purpose of advancing religion y Dissent Scalia, Rehnquist, Thomas o Historical practice shows that the Establishment Clause permits disregarding polytheists and atheists o Govt. invocation of God is not an establishment o Belief system of more than 7 million Americans (Smith??) Van Orden v. Perry (pg. 1745) y 10 Commandments sat between TX State Capitol and TX Sp. Ct. o Display existed for 40 years and surrounded by other monuments y Court (plurality) Rehnquist, Scalia, Thomas, Kennedy and Breyer upheld display o Breyer: facts distinguished from McCreary  Whether a display symbolically endorses religion; courts must look at history, purpose and context o Dissent Stevens, Souter, O Connor and Ginsburg 3. No Law Prohibiting the Free Exercise Thereof (The Free Exercise Clause) a) Introduction: Free Exercise Clause Issues

i. Reynolds v. US: govt. may not compel or punish religious beliefs, but left free to reach actions the ability to hold religious beliefs is absolute a. Freedom to believe and freedom to act ii. US v. Lee: Amish brought claim that the requirement that they obtain SSNs and pay SS taxes violated their religious beliefs a. Free Exercise Clause is invoked when govt. requires conduct ones religion prohibits b) Current Test Employment Division of Human Resources of Oregon v. Smith (pg. 1676) y Oregon law prohibits possession of peyote, respondent denied employment as a result of use o Claimed that their religious beliefs put them outside the scope of the law y Court: never held that an individual s religious beliefs excuse him form compliance w/ a valid ad neutral law of general applicability o Hybrid claims: previous cases invoking Free Exercise Clause involved other constitutional protections  Speech, press, right of parents to direct the education of children y Strict Scrutiny? o No, neutral laws of general applicability only have to meet RB std.  Was not motivated by a desire to interfere w/ religious practices i. Previous Law Sherbert v. Verner (pg. 1686) y State denied unemployment benefits to a woman, member of the 7th Day Aventist Church, who quit her job rather than work on Sabbath y Court: strict scrutiny denial of benefits constituted a violation of the Free Exercise Clause o Does qualification of benefits impose a burden on the FE of her religion?  Yes: rule forces her to choose between following precepts of religion or abandon work o Does state have a compelling interest in enforcing the eligibility provisions does this justify the substantial infringement on her rights?  Court found no such compelling interest o Employment case: govt. cannot deny benefits to workers who left their jobs for religious reasons ii. Govt. Benefit Cases a. Thomas v. Review Board: court held that the govt. could not deny employment benefits to an individual who quit his job rather than accept a transfer said he quit for religious reasons b. Hobbie v. Unemployment Appeals Comm. FL: state was required to provide unemployment benefits to a woman who was fired when she refused to work the Sabbath iii. Compulsory Schooling a. Wisconsin v. Yoder: FEC required that Amish parents be granted an exemption from compulsory school laws for their children 1) Also infringed upon right of these parent s control over their children 2) Self-sufficient nature of Amish: made education for 14 and 15 y/o unnecessary iv. Cases rejecting Exemptions based on the Free Exercise Clause

a. Braunfield v. Brown: rejected FE challenge to Sunday closing laws important state interest of Sunday rest (orthodox Jews argued for a Saturday closing instead) b. US v. Lee: rejected claim that free exercise was violated when an Amish individual was required to pay SS taxes v. After Smith Church of Lukumi Babalu Aye v. City of Hialeah (pg. 1691) y Santaria Religion uses animal sacrifice as one of its principal forms of worship city adopted ordinace prohibiting ritual sacrifices of animals y Law applied to only an individual or group that kills, slaughters, or sacrifices any animals y Court: unconstitutional o Law that is not neutral and of general applicability must be justified by a compelling state interest  Not neutral: clear object was to inhibit a religious practice, text of the law spoke of sacrifice and ritual y Exceptions to the law allowed killing of animals by other religions and allowed killing of animals for non-religious purposes  Not of general applicability: statute drafter carefully to forbid few killings but those occasioned by religious sacrifices vi. Statutory Protection of Religious Freedom a. RFRA: adopted to negate the Smith test and strict scrutiny City of Boerne v. Flores y law was unconstitutional as applied to state and local govt.s o Section 5 of 14th amendment: congress lacked the authority to expand scope of rights o Sp. Ct. never expressly upheld the constitutionality of RFRA as applied to the federal govt. o Court has subsequently used the act, however, to rule in favor of religion and against the Federal govt.  Indicates RFRA is applicable to the federal govt.  Therefore y Smith: for state and local govt. y RFRA: for federal govt. (strict scrutiny) b. RLUIPA: govt. land use decisions and treatment of prisoners that significantly burden religion must meet strict scrutiny Cutter v. Wilkinson (pg. 1696) y Is RLUIPA constitutional? y Court: govt. s accommodation of religion and protection of FE of religion did not impermissibly establish religion o There s is room for play in the joints between clauses, some space for legislative action neither compelled by the FEC nor prohibited by the EC o RLUIPA is a permissible accommodation of religion not barred by the EC y Govt.s accommodations of religious practices by members of military o Accommodation must be measured so that it does not override other significant interests o Act does not differentiate among bona fide faith c) Is denial of funding for Religious Education a violation of Free Exercise of Religion? i. Recent trend in Sp. Ct. being more permissive in allowing govt. to aid religious education

Locke v. Davey (pg. 1699) y Scholarship program in WA: students could not use the scholarship if they were pursuing devotional studies to be ordained as a minister as provided by the WA Constitution y Court: rejected the argument that the states refusal to fund such religious education violated the FEC o Govt. may constitutionally allow such use of its scholarships; it is not constitutionally required to do so o Denying D scholarship does not intrude on his FE rights in any way; can still receive training, just won t get the subsidy