Constitutional Law II Law Outline Notes for Law School by JohnMValentine

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									CONSTITUTIONAL LAW II What We‟ll Be Discussing 1) ConLaw 1 was all about the structure/powers of government 2) ConLaw 2 is all about the relationship of The People to the government a) Two Major Focuses – the two most frequently cited sources for individual rights: i) The Equal Protection Clause of the 14th Amendment ii) The First Amendment b) Several of our topics last semester had underpinnings applicable to this class: i) Judicial Review – Preventing Branch tyranny of individual rights ii) Federalism Constraints – Clarity to The People regarding responsibility for rights infringements; political accountability iii) Separation of Powers – Branches may not take/share power in violation of the Constitution because such an arrangement removes the checks and balances among the Branches, thus removing the capacity of The People to protect their rights c) It‟s possible to view the whole Constitution as an effort to protect individual rights d) The Bill of Rights i) Initially, the structural features of the Constitution were thought to be enough to protect individual rights. This was shortly dismissed and the Bill of Rights was added. The 14th Amendment comes along and goes even farther. Intro to the First Amendment Freedom of Speech under the First Amendment Congress may make no law abridging the freedom of speech This generates some questions: 1) What is speech? a) Does it include written, spoken, electronic, or even actions? Yes to the first three, but no to the fourth. But where are the boundaries between speech and action? 2) Are the protections of the First Amendment absolute? a) No – The government can ban several kinds of speech. Where are the limits of the First Amendment‟s protections? 3) What happens when the relationship between the speaker and government is not the classic set up but something more complicated? a) What happens when the government is in the position to „regulate‟ speech via subsidies or taxes? b) What happens when it‟s private action that‟s abridging the speech? c) What happens when it‟s the government doing the speaking? Religion and the First Amendment The government cannot interfere with the exercise of religion, and the government cannot establish or advance any kind of religion. 1

These also generate some questions: 1) Must the government merely step aside, or do they have to actually help your religious exercise? a) What happens when neutral government laws somehow interfere with a religion Equal Protection Clause of the 14th Amendment We touched on this last semester, though we mostly went to the Due Process Clause. The Equal Protection Clause is less potent than the Due Process Clause. 1) The Rule – Generally, when distributing benefits or burdens, similarly situated people should be treated the same 2) Incorporated by the 5th Amendment – In Bolling v. Scott the Supreme Court incorporated the 14th Amendment Equal Protection Clause against the federal government 3) Not an Absolute Prohibition – The Due Process Clause at least says there are things the government cannot do – it is an absolute prohibition of some things. a) The Equal Protection Clause merely says that if the government is going to do certain things, it must do them equally amongst other groups. Tiered Scrutiny for the Equal Protection Clause The Court determines different levels of a balancing test for an Equal Protection Clause problem. There are two motivating questions determining the level of scrutiny: 1) What is the government‟s basis for treating people differently? a) Rational Basis Review – (default rule) Certain things are okay (like economics and geography). Sometimes this test is applied with more „bite,‟ sometimes less i) Classifications must reasonably relate to a ii) Legitimate legislative purpose b) Strict Scrutiny – Certain things are not okay (like race) i) Classifications must serve a compelling government purpose, and ii) Must be necessary to achieve this compelling purpose (Narrowly tailored) c) Intermediate Scrutiny – Certain things are kind of okay (like gender classifications). i) Classifications must serve an important government purpose ii) Must be substantially related to achieving this objective 2) What is the government „good‟ that is being distributed unequally? Only two things give rise to the heightened scrutiny of strict or intermediate scrutiny: a) Fundamental Interests – Certain things are so central to people‟s interests as citizens that even if the government is distributing them based on some legitimate basis, strict scrutiny should apply anyway. i) Examples – Ballots for votes b) Suspect Class – Another reason for the Warren Court to apply strict scrutiny (e.g. race) i) Quasi-Suspect Class – Receive intermediate scrutiny (e.g. gender) 01/14/04 EQUAL PROTECTION Scrutiny of Means in Economic Regulations: The Rationality Requirement 2

Differing interpretations of Rationality Review: - “Classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced will be treated alike.” - Lindsley Standard - “When the classification is called in question, if any of the fact can reasonably be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed.” (More deferential) Under v. Over-Inclusive 1) Under-Inclusive – All in a legislatively determined class have the trait to be regulated, but there are others not in the class who possess the trait as well. The regulation doesn‟t burden everybody it should burden. a) Presents a great danger of arbitrary government by targeting political minorities; the government can affect a type of partial regulation by only burdening the minorities for everybody‟s problems (Justice Jackson). i) Why Would the Government do This? (1) Nice Answer (a) Administrative Convenience – Determining the full extent of the properly burdened class could be difficult and expensive (2) Nefarious Answer (a) The government has a problem to fix, and targets a minority group to bear the burden to fix it 2) Over-Inclusive – All in a legislatively determined class have the trait to be regulated, but the class also includes persons who do not have the trait. The regulation covers more territory than it really should. a) Punishes the guilty, but punishes the innocent as well. i) Why Would the Government do This? (1) Nice Answer (a) Administrative Convenience – These are „broad-brush‟ regulations that are using less precision than they probably should. They regulate those the government wants to regulate without the administrative burdens of precision. (2) Nefarious Answer (a) If the properly burdened class is politically powerful, the government may want to spread the burden around (b) The government is out to get some people; the regulation would be defensible (i.e. there is a „properly burdened class‟), and it would merely be extended to burden some people the government doesn‟t like 3) Under/Over Inclusive – Some (but not all) of the legislatively determined class have the trait to be regulated, and some outside of the class have the trait to be regulated. Notice that when you use this terminology, you are making the assumption that you know who the properly regulated class is. Also, keep in mind that the same logic applies with burdens (e.g. regulations) as well as benefits – it‟s just easier to talk about one or the other. Can‟t Do Everything 3

The problem with the Equal Protection Clause is that (taken to its literal extreme) it justifies all kinds of Court interference with governmental regulations. The Court doesn‟t want to do this. Thus, the Court spends a lot of time determining what types of regulations warrant its interference. Railway Express Agency v. New York US Supreme Court (1949) Synopsis NY regulation prohibited advertising on the side of vehicles, unless it was for your own company. NY claimed that advertising was distracting to drivers, and it was limiting those distractions. Vehicle drivers who hired out ads on their vehicles sued, saying that it is unequal treatment. - Held: Law upheld against equal protection claim - Majority - Authorities may have well concluded that those who advertise their own wares on their trucks do not present the same traffic problem in view of the nature or extent of advertising which they use - Concurrence – There is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Real difference in doing it for yourself and doing it for hire This is an under-inclusive regulation; those renting their advertising space are bearing the burden of improving driving conditions, while those using their own advertising space are not, and there is no reason why your own advertising would be less distracting that anyone else‟s. (Look at effects) Further, this may be over-inclusive; if certain kinds of advertising are „worse‟ (e.g. brightly colored) the regulation makes no effort to distinguish them but lumps them into the burdened class. Note Cases - Kotch v. Board of river Port Pilot Commissioners o Upheld LA nepotonistic pilotage laws granting state certificates to relatives and friends of incumbents because of need to preserve close-knit community - Williamson v. Lee Optical o Court rejected EP challenge to OK eye glass regulation … one step at a time - Morey v. Doud o Court invalidated an exemption to American express for money order law - New Orleans v. Dukes o Overruled morey and upheld provision exempting longstanding pushcart vendors from regulation - U.S. Dept. of Agriculture v. Moreno o Struck down provision of federal food stamp program limiting assistance to households of related persons…unrelated to purposes. Manifest ANIMUS is likely to cause government classification to fail rational basis review. Looking at legislative history. - NYC Transit v. Beazer o Upheld exclusion of all meth users from employment - Allegheny Pittsburgh Coal v. Webster Cty. o Struck down WV property tax system that assessed some homes on acquisition price and others on previous assessments - Nordlinger v. Hahn o Upheld CA proposition imposing tax system benefiting long-term property owners - Village of Willowbrook v. Olech 4

o Recognized that equal protection claims can be brought by a class of one o 15 foot easement general rule/Government asks for 30 foot easement for one citizen. ARBITRARY. Fails rational basis review Tools Intent Accepted at Face Value Under a rational basis review, the Court doesn‟t ask questions about intent. NY is trying to regulate traffic safety – that‟s a legitimate thing for NY to attempt to regulate. - In some cases the Court will even search for a legitimate government reason and make one up of its own accord to justify government action. - Court Rationale for deferential review: Federalism concern, and separation of powers concern (14th Amendment allows it). - Rights protections/Appropriate concerns with not letting judicial and federal power go too far o Carolene Products Footnote 4 – There are some circumstances where legislative power is illegitimate. Happens when legislature is undermining the very political process in which the legislature comes into being. Happens when legislative power is trampling the rights of identifiable minority groups. (Political process and discrete and insular minority ideas) Low-Bite Under a rational basis review, „one step at a time‟ regulations (i.e. where similarly situated individuals are treated differently as part of an ongoing government objective) are okay – the government doesn‟t have to solve a whole problem all at once. (partial solution). The Court said that equal protection did not require eradication of all evils of the same sort. Foreshadowing Notice that the distinction NY is making here (i.e. those renting their advertising space to others versus those using their own advertising space) is not a suspect class. There is no reason to think that NY is trying to persecute somebody – it‟s not like preventing a certain race from renting their advertising space. Such suspect classifications bump the issue out of rational basis review and into some form of heightened scrutiny. NY is not regulating a fundamental interest here, Lochner right to contract not an absolute right like right to education US Railroad Retirement Board v. Fritz 1980 Synopsis Feds wanted to deny certain groups of railroad workers from getting dual social security and railroad worker retirement benefits because it was going bankrupt. Class of unretired railroad workers who would have qualified for dual under old system but not new system sued. - Held – Law survives equal protection claim - Majority – refuse to invalidate on equal protection grounds legislation which is deemed unwise or unartfully drawn. Attempt to protect equities of railroad employees. Could be related to government‟s interest. - Concurrence – we must discover correlation between classification and either actual purpose of statute or a legitimate purpose reasonably presumed. Hardship inevitably results from reductions in vested benefits - Dissent – rational basis standard is not a toothless one and will not be satisfied by flimsy justifications for legislative classification proffered after the fact by government attorneys. Need showing of government effort to accomplish interest it is claiming. 5

Tools Legislative intent is irrelevant in rational basis review Concurrence (Stevens) When analyzing an Equal Protection challenge under rational basis review: 1) Ask what the purposes of the statute are, and 2) Then ask if the classification is rationally related to the achievement of those purposes A challenged classification can be sustained only if it is rationally related to the achievement of an actual legitimate governmental purpose 01/16/04 Taken to the extreme, the Equal Protection Clause could allow the Court to take on a Lochner-esque stance of constantly invalidating Congressional actions that nominally affected similarly situated individuals differently. As discussed in the last class, when the government classifies with mostly innocuous classifications, the government is only exposed to a rational basis review (government must have some permissible purpose, and the means need only rationally relate to that purpose). Generally, the government wins those cases. Today we shift to the other extreme: strict scrutiny (government is trying to accomplish a compelling interest, and the means must be necessary to accomplish that compelling interest). Generally, the government loses these cases. Suspect Classifications: Introduction to Racial Discrimination Two MAJOR questions to help understand the doctrine: - Why is race an especially bad reason for the government to classify people? - What is the focus/should be the focus of racial discrimination case? What is the harm/trigger for strict scrutiny? o Some disparate impact of racial classifications o There is clearly a discriminatory intent/animus Background Cases 1) The Slaughter-House Cases a) The Court acknowledged that the 14th Amendment was enacted to prevent racial discrimination i) This animates the idea of strict scrutiny in the context of the Equal Protection Clause ii) Court used historical context as a way of limiting the scope of the 14th amendment. 2) Strauder v. West Virginia (1880) a) WV law bars blacks from serving on juries, black man convicted by such a jury. The Court held this a violation of Equal Protection b) Interest of defendant/interest of people rejected from the jury. Focus in litigation is on criminal defendant. c) In many situations, racial composition of juries is salient for the defendant‟s likelihood of getting convicted…Undeniable social reality i) Concerns of the Theory of Inequality (1) Majority/Minority rationale: The Court identifies this as the majority group oppressing a minority group by using political power to harm the minority and help itself. Had the 6



5) 6)

white majority been excluding whites from juries in cases with black defendants, the Court would likely have felt this was fine. (2) There is clearly a discriminatory animus/intent. By striking African Americans from the jury pool, you are sending a message that there is something wrong with these people. d) Bottom line: All disadvantaging classifications resting on race and ethnicity are suspect Plessy v. Ferguson (Overturned) a) Court sustained state law requiring separate but equal treatment for white and black railroad passengers b) Laws requiring separation in places where they are liable to be brought into contact and do not necessarily imply the inferiority of either race is generally recognized as within state police power c) Dissent – our constitution is color-blind, and neither knows nor tolerates classes among citizens Missouri ex. Rel. Gaines v. Canada a) State obligated to furnish black law student within its borders facilities for legal education substantially equal to those offer white students Sweatt v. Painter a) Required admission of blacks to UT law school even though state set up a law school for blacks Korematsu v. US (1944) a) Classifications based on race (a suspect class) receives strict scrutiny under the Equal Protection Clause, but b) Merely because government action uses a suspect class does not necessarily render it unconstitutional i) In Korematsu, a classification imposing disadvantages based on race actually survived strict scrutiny because of a pressing public necessity

Loving v. Virginia US Supreme Court (1967) Synopsis VA law prohibited miscegenation between whites and any other race, but allowed miscegenation between other races. VA‟s Defense VA actually has a pretty sensible argument as to why this doesn‟t violate Equal Protection: both whites and blacks are punished equally if they violate the statute – people are treated equally. Court‟s Response Don‟t forget strict scrutiny; what‟s the compelling state interest? To preserve white blood lines – the government of VA has enacted a policy to preserve white supremacy. VA doesn‟t care about mixed-race marriages between non-whites; only marriages between whites and nonwhites. Another Theory of Inequality - It is a violation of Equal Protection for one race to hold itself as superior to another, and legislate to effectuate this belief. Doing so is to preserve a false ideology. VA clearly has a discriminatory animus/intent and is creating inequitable results/effects (by prohibiting those desire white and non-white marriages from having them). - If VA said all interracial marriages are banned, the perpetuation of the system of white supremacy would still have been visible even beyond the façade. Tools 7

The clear and central purpose of the 14th Amendment was to eliminate all official state sources of invidious racial discrimination in the States More Cases 1) McLaughlin v. Florida (1964) a) Racial classifications are inherently suspect and are in most circumstances irrelevant to any constitutionally acceptable legislative purpose 2) Palmore v. Sidoti (1984) a) To save the child from any ridicule, a state judge awarded divorced white father custody of the child when white ex-wife remarried a black man b) Regardless of the practical reality of racism, the law cannot give it effect c) Classifying persons according to their race is more likely to reflect racial prejudice than legitimate public concerns the race, not the person, dictates the category 3) Johnson v. CA a) Strict scrutiny applied to state policy of segregating prisoners by race even where preventing racial gang violence was the justification b) Strict Scrutiny doesn‟t preclude the ability of prison officials to address the compelling interest in prison safety The „Separate but Equal‟ Era Background Case 1) Plessy v. Ferguson (1896) a) State law required blacks and whites to be separated into different train cars. This is actually similar to VA‟s argument in Loving; the state is treating the two groups the same – it merely requires them to be separated. They were „separate but equal.‟ Brown v. Board of Education (Brown I) US Supreme Court (1954) Synopsis Black and white children had to go to „separate but equal‟ public schools. The Court gets it – „separate but equal‟ will never work. It is inherently problematic in that it produces people who believe they are superior or inferior based on their race. Theory of Inequality The „separate but equal‟ system is scene as another method of preserving white supremacy. This is a similar response as the Court‟s answer in the Loving case; and it undermines the state position both times. Also, this time, the main concern is governmental institution of inequitable results/effects (the kids understand they‟re being treated unequally); though there is obviously still a discriminatory animus/intent on the part of the state. - Must look to the effect of segregation itself on public education - Segregation of public school children on the basis of race, even though physical facilities and other tangible factors may be equal, deprive the minority children of equal educational opportunities (Feeling of inferiority affecting their hearts and minds) - Justifications for Warren‟s opinion o Race is never a permissible basis on which to distribute public benefits or burdens o Race is an impermissible basis for distributing public benefits and burdens when it has the social and psychological effect of subordinating a racial group 8

o Segregation laws are impermissibly tainted products of white supremacy

Tools When a state has undertaken to provide publicly funded schooling, it is a right that must be made available to all on equal terms („separate but equal‟ is overruled) Bolling v. Sharpe (1954)  Brown I applies to federally funded schools as well Johnson v. Virginia (1963)  Officially extends Brown I beyond public schools to all public facilities o “It is no longer open to question that a State may not constitutionally require segregation of public facilities.” Brown v. Board of Education (Brown II) US Supreme Court (1955) Tools „All Deliberate Speed‟ – Moving Slowly State and local governments presiding over segregated education systems need to integrate those systems with all deliberate speed (this ends up taking the better part of a generation) and good faith implementation of governing constitutional principles. Board Notes Equal Protection: Racial Discrimination – Two Themes to Keep in Mind When the Court is Imposing Strict Scrutiny 1) Theories of Inequality – Why is the law in question wrong? a) Majority oppressing minority (Strauder) b) White supremacy (Loving, Brown I) i) Color consciousness (Bakke) 2) Impermissible Ends/Targets of Judicial Action (did he mean „governmental‟ action?) – What feature of the racial discrimination is the spur for the Court imposing strict scrutiny a) Discriminatory animus/intent (i.e. De Jure, below) b) Inequitable results/effects (i.e. De Facto, below) Implementing Brown v. Board - Green v. County School Board – School districts operating dual system clearly charged with affirmative duty to take whatever steps are necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch. - Swann v. Charlotte Mecklenburg Board of Education – Once a right and a violation have been shown, the scope of a district court‟s equitable powers to remedy past wrongs is broad. No basis for holding that local school authorities may not be required to bus students to desegregation unless it risks health of the children or impinges educational process - Milliken v. Bradley – an inter-district remedy might be in order when racially discriminatory acts causes racial segregation in an adjacent district, or where district lines are draw on basis of race - Missouri v. Jenkins – court limited power of federal courts to impose financial burdens on states and localities for not desegregating or not having educational achievement standards 9


Bd. of Ed. Of OK City v. Dowell – Injunctions entered in school desegregation cases not intended to operate in perpetuity. Dissolving a desegregation decree after compliance for a period of time ok

01/21/04 After the preceding cases, we begin to see a shift in the Court‟s analysis. For the earlier cases, it didn‟t seem to matter whether the discrimination was intentional or only a result; strict scrutiny often applied either way (e.g. the Court‟s focus on effects in Brown I still gets strict scrutiny). In the upcoming cases, the Court begins to focus on a distinction between the two situations – only intentional discrimination gets strict scrutiny. The Purpose-Impact Distinction in the School Desegregation Context Discrimination When a law has a differential impact and disadvantaging effect on racial minorities The Court has said (loosely) that “governmental action is not unconstitutional solely because it has a racially disproportionate impact; the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.” Color-consciousness rationale – Treating people based on race is unrationale, undesirable thing. It doesn‟t depend on any assessment of circumstances at a particular place at a particular time. Treats race abstractly Two Types of Discrimination 1) De Jure – The law in question was intended, or intentionally administered, to be discriminatory 2) De Facto – That law in question was not intended or administered to be discriminatory, but ends up being discriminatory Disparate impact Y Y Y Y Y Facially Dis. Dis. in Application Y--------------------------------------- N Y (Y--------------) (Y-------------) N N(?) Strict Scrutiny? Y Y Y Y N

Korematsu Yick Wo Brown Loving Davis

Background Cases 1) Korematsu v. United States a) Classification imposing disadvantage based on race survived strict scrutiny b) Conviction for violating military order during WWII excluding all persons of Japanese ancestry from the West Coast area (Curfews, detention areas)(internment) c) Pressing public necessity may sometimes justify existence of such restrictions. Not for court to second-guess what congress and the people do in wartime. (War power of Congress and Executive branch)(Shows court deference to military decisions made under the pressure of national emergencies). d) Dissent: Reasonableness standard – military claim must subject itself to judicial process of having its reasonability determined. 10

e) Element of intent invisible. Maybe discriminatory intent isn‟t important 2) Yick Wo v. Hopkins (1886) a) City required approval to run laundries, then denied all Chinese such approval. b) A law itself can be fair on its face, but if it is administered in a purposefully discriminatory way, it can still violate Equal Protection. c) Deliberate racial discrimination can be found on the face of the statute of the way the statute was applied regarding whether strict scrutiny applies 3) Gomillion v. Lightfoot a) Inference of discriminatory motive from circumstantial evidence of extreme racially disparate impact b) Alabama law redefining city boundaries of Tuskegee to disenfranchise blacks in violation of 15th amendment 4) Griffin v. County School Board (1964) a) School board closed public schools to avoid integration, then granted funds to white kids to attend private schools b) Whatever nonracial grounds might support a State‟s allowing a county to abandon public schools, the object must be a constitutional one, and „race‟ and „opposition to desegregation‟ do not qualify. 5) Palmer v. Thompson (1971) a) City closed public pools to avoid integration. Ok, no racially discriminatory purpose b) The „motive‟ or „purpose‟ behind a law is not as relevant to constitutionality as the actual effect of the law c) Dissent: Whites and blacks not being treated alike Washington v. Davis (Employment) US Supreme Court (1976) Background – States and communities can‟t be blatant about racial discrimination Court has desegregated education. Social foment around this. The personnel on the S.Ct. changes. Infusion of new conservative appointees and conservative on racial discrimination issues.

Synopsis Competency test used throughout the government ended up cutting out more black than white police cadets. Respondents were black cadets rejected for failing to perform on the exam. Racially neutral testy. Test was reasonably related to the requirements of the police recruit training program and not designed or operated to discriminate against blacks. Official action will not be held unconstitutional solely because it results in a racially disproportionate impact." Instead, a plaintiff must prove discriminatory motive (intent) on the state actor's part. The court noted that "disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. Evidentiary problems. Tools Purposeful discrimination is a necessary basis to demonstrate a constitutional violation. Discriminatory intent could have been proved here by total exclusion of minorities or seriously disproportionate impact. Central Purpose of Equal Protection The prevention of official conduct discriminating on the basis of race 11

De Jure Segregation An essential element of de jure segregation is a current condition of segregation resulting from intentional state action. When a law is facially neutral and serving ends within the power of the government, it is not invalid merely because it affects a greater proportion of one race than another. Burden Shift Once a prima facie case is made out, the burden of proof shifts to the state to rebut the presumption of unconstitutionality by showing permissible racially neutral criteria. More Cases 1) Arlington Heights v. Metropolitan housing Corp. a) Racially discriminatory purpose may still be inferred absent stark statistical disparities b) Suburb‟s refusal to grant a request to rezone certain property from a single-family to multiplefamily classification. c) Little about the sequence of events leading up to the decision that would spark suspicion. Rezoning request handling according to usual procedures d) Disparate impact is some evidence of discriminatory intent. Can prove intent through roundabout ways. Why should we care so much about intent? Either court care more about intent than effects. Real evil may be government doing bad things for bad reasons. Or, if disparate impact was good reason for shooting down a law, disparate impact happens all the time so many laws will be shot down. 2) Rogers v. Lodge a) Found racially discriminatory vote dilution from circumstantial evidence surrounding at-large election system in Burke County. (majority group gets all elected positions)(No blacks have ever been elected) b) Discriminatory intent need not be proven by direct evidence 3) Hunter v. Underwood a) Struck down facially neutral law reflecting racially discriminatory purpose. b) All those who committed crimes of moral turpitude couldn‟t vote (presenting worthless check) 4) Green v. County School Board (1968) a) Formerly segregated school district made a „freedom of choice‟ plan to comply with Brown; kids could chose to go to whatever school they wanted. The result was that white kids only chose to go to the formerly white school, and black kids only went to the black school. i) The Court doesn‟t think this is good enough; social pressure alone obviously can keep black children from attending a formerly white school. The Court instead basically says the State need to try harder – there must be a plan that works, and it must work now. b) Equal Protection requires not merely desegregation (elimination of formal racial barriers), but compelled integration (creation of racially mixed schools) 5) Swann v. Charlotte-Meckenburg (1971) a) Lower court ordered two school districts to desegregate by busing students from one district to another. The school districts protested this, arguing that the lower court couldn‟t ignore district lines that way. i) The Court announces the requirement of de jure discrimination; there must have been a purpose or intent to discriminate. (1) It approves the remedy ordered by the lower courts (as would be expected following Green), but says that such remedies must be premised on a finding of de jure discrimination. (2) Notice the shift from effects (in Green) to intent 12

6) Keyes v. School District (1973) a) Some parts of one Denver school district was effectively segregated while others were not. b) Rebuttable Presumption – Where Πs prove that school authorities have carried out a systematic program of de jure segregation affecting a substantial proportion of the students, a finding that the entire district has violated Equal Protection is warranted absent a showing that the district is divided into clearly unrelated units. i) This is sensible because areas within a district tend to have a domino effect on each other. ii) Note Brennan‟s approach here; he didn‟t like the „intent/de jure‟ requirement of Swann, and with significant Justice turnover, his views (though the majority view in this case) is getting to be the minority. Thus, he „stretches‟ the boundaries of what can constitute „intent.‟ 7) Milliken v. Bradley (1974) a) Unlike Keyes, we now see segregation amongst several school districts – whites in the suburbs and blacks in the cities. b) Before the boundaries of separate and autonomous school districts may be set aside, it must be shown there has been a constitutional violation in one district that produces a significant segregative effect in another district i) Basically, absent an inter-district violation there is no basis for an inter-district remedy; we must see a specific showing of de jure discrimination by the district upon whom the remedy is to be imposed ii) Here we see Brennan‟s Keyes approach running out of gas 8) Dowell (1991) a) The city used to have „on the books‟ discrimination. A court orders the city to integrate by busing students, and it works. The court considers its job done, and withdraws its jurisdiction. Eight years later, the district reinstitutes the same set-up that resulted in the old segregation. The Court approves a refusal to reopen jurisdiction; there must be a showing of intent then and now 9) Arlington Heights v. Metropolitan Housing (1977) a) Government action will not be held unconstitutional solely because it results in a racially disproportionate impact; the proper inquiry is if a discriminatory purpose exists i) Πs must show that a discriminatory purpose has been a motivating factor in the decision 10) Columbus Board of Ed. v. Penick (1979) a) Actions that have a foreseeable disparate impact are relevant evidence for showing the necessary forbidden purpose Board Notes School Desegregation Cases and the Intent (De Jure)/Effects (De Facto) Distinction 1) Green – Southern, 1968 a) Emphasis on results 2) Swann – Southern, 1971 a) Intent requirement 3) Keyes – Northern, 1973 a) Stretching intent requirement 4) Milliken – Northern, 1974 a) Specificity as to place 5) Dowell – Southern, 1991 a) Specificity as to time Why‟s the North Different from the South 13

While the north did not have „on the books‟ legal segregation of its schools, segregation was still present. Why? First, lower level decision-makers in school districts attempted to implement segregation. Second, unlike in the South where there wasn‟t must residential segregation, the North was heavily residentially segregated. Thus, „line-drawing‟ around white neighborhoods could easily make neat looking districts that were all segregated. 01/23/04 Affirmative Action in Education In the last class, we saw a huge shift in the Court‟s analysis. The Court went from a focus on the effects of segregation to the motivation for segregation. The Court went from a vigorous enforcement of desegregation regardless of the reasons for the initial segregation, to a more stand-off position of only barring intentional segregation. Board Notes Equal Protection and Affirmative Action: Three Questions in Bakke/Grutter/Gratz 1) Why strict scrutiny? Why should racial classification be presumptively invalid? What is categorically wrong with such classifications? a) Prior theories of inequality i) Majority oppression – When the majority is oppressing a distinct insular minority, the political process is working against the minority, and they must be protected ii) White supremacy – When the whites are attempting to promulgate and perpetuate a false and invidious ideology b) With Bakke, things change 2) What counts as a compelling interest? a) Increasing diversity in the professions? b) Improving services for underserved communities? c) Correcting for societal discrimination? d) Increasing educational diversity? 3) What sort of program satisfies the narrow tailoring requirement? Regents of Univ. of California v. Bakke US Supreme Court (1978) Synopsis A medical school reserved 16 out of 100 available spaces for minority groups. A white person was denied admission while several less qualified minority students were admitted. The university argued that while this is racial classification, it was benign (i.e. designed to benefit minority groups) as opposed to the traditionally invidious racial classifications (i.e. designed to oppress minority groups). It is not as suspect when a dominant majority group (i.e. the white majority) decides to oppress itself; the white majority is not trying to further its own agenda. Race is race…any racial classification is subject to strict scrutiny.


Purpose of the plan was to reduce the historic deficit of traditionally disfavored minorities, and counter the effects of societal discrimination, and obtain the educational benefits that flow from an ethnically diverse student body. Political genesis of affirmative action laws - Those lobbying for the affirmative action laws are minority groups. Diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single but important element. Special admissions programs, focusing solely on ethnic diversity, would hinder rather than further attainment of genuine diversity. The white person sued and won. A divided Court concludes that racial classifications of any kind are simply and fundamentally wrong in almost all cases („Colorblindness’ Theory of Inequality). Color-consciousness rationale – Analytical problem: Why should we care so much? Substantive theories say that majority is oppressing the minority. Formal: We care about race because racial classifications are bad. We shouldn‟t treat people different based on aspect of themselves that they can‟t control. Race doesn‟t correspond to any notion of treating anyone differently. Slippery because, we usually slip into a consideration of what race means in society. Very self-consciously moving away from history or social circumstances. Benefits of racial diversity – These cases don‟t show a specific instance of discrimination on the part of the university. (1) Educational diversity (2) Remedying society-wide discrimination. Applications who are getting the benefit of the affirmative action policies now aren‟t the people who were getting discriminated against previously. (3) Correct for underrepresentation of minority groups in the medical profession. (4) Serving underserved communities (not guaranteed) Educational Diversity rationale – Everyone benefits from a diverse classroom because of the ideas bounced around by diverse people. Diversifying the profession is a special interest argument, whereas educational diversity benefits everyone. The majority of the beneficiaries would be white people in the classroom. You can have affirmative action if it benefits the majority. If it is only benefiting the group it is intending to benefit, then it isn‟t allowed. Question of racial classifications – Court is looking at the particular circumstances that give rise to the case in question. Bakke – Formal (Court just looks at the 14th amendment and sees that a racial classification is happening. Tools Major Holdings 1) What is the standard of review and how does the court get there? Does Affirmative Action get „Strict Scrutiny‟? a) Strict scrutiny is the proper mode of review for affirmative action programs i) Racial classifications of any kind (whether benign or invidious) are suspect 2) Are there „Compelling Interests‟? a) There are compelling interests that will allow a state to satisfy strict scrutiny and Equal Protection in affirmative action cases (e.g. educational diversity) 15

3) What is Sufficiently „Narrowly Tailored‟? a) No real answer, but this school‟s method is not narrowly tailored enough Class Discussion New Theory of Inequality The Court establishes a colorblindness theory of inequality here to base strict scrutiny on. - Had the Court applied the old white supremacy theory, strict scrutiny would not have applied; the white majority was clearly not attempting to perpetuate white supremacy with affirmative action. - Had the Court applied the majority oppression theory, strict scrutiny also would not have applied; the white majority was clearly not attempting to oppress the minority with affirmative action The colorblindness theory of inequality demands that any racial classification is presumptively wrong and subject to strict scrutiny. The question is why? The Equal Protection Clause seems to suggest it, but the Equal Protection Clause doesn‟t specifically talk about race. If the basis for the colorblindness theory is that the Equal Protection Clause suggests it, then the Equal Protection Clause would suggest all classifications must be subject to strict scrutiny – but this isn‟t so (i.e. all of the classifications that only get a rational basis review). How is it that we reconcile the notion that race gets a suspect qualification because of its historical importance and context, but any racial qualification is presumptively wrong and the law should be colorblind? The result (up until Grutter anyway) was an ability for the Court to basically ignore Equal Protection cases in the affirmative action context. Everyone agrees that affirmative action is permissible when the body administering the program is correcting for a specific historical program of discrimination. Had the university in this case argued that they had systematically discriminated, they would have won. In a footnote, Justice Powell stated that a presumption of legality existed for admissions decisions that took race into account but were made on an individualized, case-by-case basis. This presumption could be rebutted by a showing that the university did not follow a policy of individualized comparisons, or that the policy systematically excluded certain groups. Such a showing would shift the burden to the university to establish a legitimate educational purpose for the policy. The school offers four justifications: 1) There should be more minority doctors a) The Court disagrees 2) There should be more doctors in minority communities a) The Court disagrees 3) Society has historically discriminated against minorities, and the school should attempt to remedy this a) The Court disagrees 4) The educational process is improved when the classroom environment is diversified a) The Court accepts this argument as a compelling interest b) However, the university‟s admissions program was not the necessary means of achieving that end. 16

c) There‟s an interesting quirk about this reasoning. Unlike the other three rationales, which benefit minorities, this rationale actually benefits the white majority. Whose education is benefited by diversity? The minorities? No – they wouldn‟t even be there if not for the program. Who would be there anyway, and are now getting a better experience because of the diversity? The white folks. Grutter v. Bollinger US Supreme Court (2003) Synopsis Supreme court upheld the affirmative action policy of the UMichigan Law School. Justice O'Connor's majority opinion held that the United States Constitution "does not prohibit the law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body." The Court held that the law school's interest in obtaining a "critical mass" of minority students was indeed a "tailored use." Class Discussion Notice the Court‟s reasoning; it talks about these institutions producing the nation‟s leaders, and the need for those leaders to be credibly diverse. This sounds a lot like the rejected rationales from Bakke. Court recognizes problem with educational diversity/professional diversity split. O‟Connor rehabs diversity of profession rationale. Used a wide range of diversity factors that were part of a qualitative process Law School‟s admission policy aspires diversity which has the potential to enrich everyone‟s education and make the law school stronger. Diverse student body is a compelling state interest that can justify use of race in university admissions o Important purpose of public education and the expansive freedom of speech and though associated with a student environment. o Narrowly tailored – Individualistic assessment plan, not a quota. Doesn‟t unduly burden individuals who aren‟t members of a favored racial and ethnic group

Gratz v. Bollinger US Supreme Court (2003) Involved UMich undergraduate school. The school assigned numerical values to various diversity criteria, and race gave a 20 point boost to historically disadvantaged minorities. Not narrowly tailored to achieve the interest in educational diversity. Not considering every individual on their own, and no one characteristic automatically ensured an identifiable contribution to a university‟s diversity Compelling interest in diversity Dissent: Admissions policy looks at things other than


01/28/03 Review Early racial classification cases developed two major ideas; first, they made no distinction between discriminatory purpose and effects. Second, there were two theories of why racial classification was inherently bad; majority oppression of the minority and the perpetuation of white supremacy. 17

These notions were being developed when all of the cases involved whites legislating against blacks. As the school desegregation cases came around, the Court stopped analyzing purpose for evil animus and began only searching for the purpose of discrimination at all. In Bakke, the Court created a new theory of why racial classification is inherently bad; the color consciousness rationale classifications based on race are illogical. This removes the issue who is being harmed by removing the issue of history from the analysis, and has become the dominant mode of thinking in the Court. These two changes have had the result of limiting the Court‟s racial discrimination docket to affirmative action. For this class, we address affirmative action outside of the school context. The most popular issue is the granting of public contracts. Notice that these cases are pre-Grutter. During this time, the Court was striking down just about anything having to do with affirmative action. That leaves the question of if these cases are still good law. Affirmative Action in Employment and Contracting Wygant v. Jackson Board of Ed (1986) - Court held unconstitutional a minority preference in teacher layoffs. Some white teachers who were laid off had more seniority than the black teachers who weren‟t. The provision required that layoffs not reduce the existing percentage of minority teachers in the workforce. - Strict scrutiny applied, and goal of providing minority role models didn‟t overcome compelling state interest test. Layoff provision was not narrowly tailored to achieve goal. - Layoffs directly impacted individuals while hiring programs could diffuse the burden among a large and anonymous pool of applicants. (However, regardless of the party, one still has no job). - Dissent: focus should have been on whether Board‟s action advances public interest in educating children for the future Fullilove v. Klutznick (1980) OVERRULED 1) Congressional statute declared that in a project involving federal funds under a federal contract, the group receiving the funds must set aside 10% of funds for minority owned businesses (racial setaside program). If the group doesn‟t use minority owned businesses, the portion of the funds that should have been set aside are forfeited. A sharply divided Court upheld the program. 2) Lead opinion didn‟t say whether strict scrutiny applied, but they said that the case would have been upheld even under strict scrutiny. 3) Congress has a great degree of latitude to make this kind of determination (historical basis). The opinion deliberately dodges the issue of what level of scrutiny would apply in a federal affirmative action case, though it seems to suggest that the federal program would survive even strict scrutiny. (14th Amendment, Section 5) a) Actually, if you count the Justices, you get a three-way tie: three for strict, three for intermediate, and three for undecided b) Powell concur: provision justified as remedy that serves compelling governmental interest in eradicating continuing effects of racial discrimination (Strict Scrutiny) c) Stewart dissent: racial discrimination is invidious discrimination d) Note: No one ever argues for rational basis review. They never deny that this is an inherently problematic racial classification. Brennan, says that we need to be careful that a racial classification is doing a good rather than bad thing. Richmond v. J.A. Croson Co. US Supreme Court (1989) 18

Synopsis After Fullilove, a federal regulation, many states and municipalities (including Richmond) make setaside programs for minority owned businesses. Richmond defends its program by contending that within (not by) the city of Richmond, there has historically been racial discrimination in the contracting business. A divided Court strikes the program down. Here, there was no evidence of past discrimination against the named minorities in the construction industry. 14th amendment first time the constitution has ever imposed obligations on states to respect individual rights. Plurality distinguished Fullilove on the basis that Congress enacted the Fullilove statute using its special powers under the 14th Amendment. Section 5 empowers Congress to enforce the guarantees of the equal protection clause against the states, whereas the clause constricted state power in racial matters. A specific finding of past discrimination in a state program was required even though Fullilove didn‟t required Congress to make such a finding. Tools Proper Standard 1) The proper standard of review for affirmative action cases is strict scrutiny. Federal and State Affirmative Action is Different 1) In Fullilove, the Court „rightly‟ deferred to Congress‟ judgment on the issue. However, because the 14th Amendment is directed entirely at states, states are not owed the same deference. Need for Specificity 1) For a state to institute an affirmative action program, the State must substantially show past discrimination by the State (i.e. the compelling interest) that the State is trying to remedy with the affirmative action program (i.e. that the program is narrowly tailored). Death Toll 1) This case seems to sound a death toll for state sponsored affirmative action. Metro Broadcasting Inc. v. FCC (1990) OVERRULED Synopsis Court afforded Congress considerable authority to mandate affirmative action. Upheld 2 FCC rules: the first enhanced the position of groups with some active minority ownership in competition for broadcast licenses; and second allowed “distressed sale” stations to be assigned only to FCC-approved enterprises with over 50% minority ownership before competition took place. The Court decides that intermediate scrutiny is the appropriate level of scrutiny for federal (racial setaside programs) affirmative action. (program must be substantially related to achieving an important governmental objective) Here, the governmental objectives were: diversity of programming, burdens on non-minorities were slight. Adarand Constructors, Inc. v. Pena US Supreme Court (1995) 19

Synopsis The Court overrules Metro Broadcasting and decides, based on the „three principles (colorconsciousness rationale)‟ (Skepticism of racial classifications)(Consistency in treatment of all races)(congruence and consistency in treatment of strict scrutiny in federal and state action programs) of affirmative action cases, all programs (whether state or federal) are subject to strict scrutiny. Federal government practice of giving general contractors on government projects financial incentive to hire subs controlled by socially and economically disadvantaged individuals. We can‟t distinguish between benign and invidious racial classifications. Scalia concurrences notes that the government cannot have a compelling interest in discriminating on the basis of race in order to make up for past racial discrimination in the opposite direction. Thomas concurring notes that such programs engender attitudes of superiority or provoke resentment. Dissent notes that there is no moral equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination. Why is congruency in state/federal programs so important now when it wasn‟t before? Also, court in Adarand is not overruling Fullilove. Even though Fullilove didn‟t uphold strict scrutiny, but they said that the case would be upheld in strict scrutiny instances. As this was a federal program and the equal protection clause only applies to the states, Court scrutinized it under the Due Process Clause of the 5th Amendment. All racial classifications mandated by any governmental actor must be reviewed under strict scrutiny. Open Q…Why should we care about race if race is only an abstraction? Color-consciousness rationale. If race is just another accident of birth, why are racial classifications such a bad thing? Tools Board Notes Affirmative Action: Public Contract Cases Case Federal/State Fullilove Federal Croson State Adarand Federal Grutter State 01/30/04 Suspect Classifications: Sex Discrimination I There are other characteristics that the Court considers „suspect classes‟ for applying strict scrutiny; namely alienage and birth status. After race, gender/sex classifications have given rise to the most challenges and debates. Today we analyze what standard of review the Court decides to apply the sex discrimination case. Remember our three theories of inequality that justified strict scrutiny in the race context; white supremacy, majority oppressing the minority, and color consciousness. As we go through this analysis, think if any of these theories can apply in this context.

Level of Scrutiny ??? Strict Strict Strict Yes No No Yes



How are gender classifications similar to race classifications such that they should receive similar judicial treatment? 1) Both innate physical characteristics that cannot be changed 2) Both have been the source of a great deal of discrimination over time 3) Both are a dubious ground to measure/assume ability or inability to perform. a) This implicates the color consciousness theory of inequality (doesn‟t take into account historical and socioeconomic places, but a formal notion of equality. Skin color is an irrational basis for distinguishing people); the suggestion that discriminating between the two groups is just foolish. i) But unlike the racial situation, there may actually be meaningful differences between men and women (Patriarchy/White Supremacy) 4) Minority/Majority Rationale How are gender classifications different to race classifications such that they should receive different judicial treatment? 1) Unlike minorities, women actually make up an at least equal numerical group. a) However, while women make up a slight numerical majority, they are distinct political minority. i) This brings up something that was not addressed in the racial context; the difference between numerical majority status and the political minority status. So long as you use this distinction, the majority oppressing the minority theory of inequality still has weight in this context. 2) The Equal Protection Clause in the 14th Amendment was originally designed to apply to blacks. The Court has extended it to cover all races. Extending it to women would go „too far.‟ a) This kind of makes sense – it took black slavery to get the 14th Amendment enacted. Women have been subject to legal disadvantage (e.g. couldn‟t vote until the 1920s, couldn‟t own property, etc.) but they were not subject to slavery. i) This implicates the white supremacy theory of inequality. The analogue in sex discrimination would be patriarchal supremacy; men are superior. (1) However, there are some important differences: (a) With the old racial laws there was an attitude of hate; when the group stepped out of line, there was legal violence (b) With the gender laws there was an attitude of protection; women must be „cared for‟. Some gender classifications are men protecting and benefitting women. Formal v. Substantive Depending on what theory of inequality the Court is using, they will make different Bradwell v. State (1873) 1) The 14th Amendment doesn‟t apply to bar discrimination against women, even when discrimination is explicit. 2) Federal privileges and immunities do not include the right of women to practice law Minor v. Hapersett (1874) 1) Federal privileges and immunities do not include the right of women to vote in elections 2) Only 19th amendment explicitly expresses any aspect of women‟s right to equality, providing that the right of citizens of the United States to vote shall not be denied on the basis of sex Goesaert v. Cleary (1948) 1) Upheld Michigan law providing that no woman could obtain a bartender‟s license unless she was the wife or daughter of the owner of a bar 21

2) Constitution doesn‟t require legislatures to reflect sociological insight, or shifting societal standards 3) Dissent: Benign, protective legislation regarding women constitutional Reed v. Reed (1971) 1) Court invalidated law under equal protection, instead providing for a traditional rationality standard 2) Giving a mandatory preference to members of either sex, merely to accomplish elimination of hearings on the merits, makes an arbitrary choice forbidden by equal protection Frontiero v. Richardson (1973) (Plurality) 1) Brennan argues that, like race, sex is just a dubious ground upon which to base distinctions and thus nonsensical (like the color consciousness theory; gender consciousness) 2) Sustained an equal protection challenge to federal law affording male members of the armed forces an automatic dependency allowance for their wives but requiring servicewomen to prove that husbands were dependent 3) Women still face pervasive discrimination in educational institutions, the job market, and in the political arena. 4) Sex is an immutable characteristic, the imposition of special disabilities upon members of a particular sex would violate basic concept of our legal system 5) Concurrence: Unnecessary to characterize sex as a suspect classification because case could be decided on Reed rationale. Craig v. Boren (Men discriminated against) US Supreme Court (1976) Synopsis Oklahoma state law allows women to buy booze when their 18, but men cannot buy booze until they‟re 21. Men challenge the law. OK argues there‟s a reason to distinguish between men and women: men in that age group get arrested for DUI at a 2% rate and women get arrested for DUI at a 0.2% rate. The Court strikes it down concluding this is just not enough reason to make a distinction. Difficult to believe that statute was intended to cope with traffic safety, since it only has a minimal effect to a not-veryintoxicating beverage and doesn‟t prohibit its consumption. Having the women buy the beer for the guys won‟t deter male drinking and driving (searching means analysis spotlights the way intermediate scrutiny works) Reasoning: Although the protection of public health and safety represent an important function of local and state governments, that objective doesn‟t satisfy the classification because it did not appear on the face of the statute Recurring theme in gender discrimination: - Possibility of real differences - Court resist that because of the notion of stereotyping by making broad generalizations between men and women Dissent - Rational basis only needed here. No suggestion that males in this age group are disadvantaged. - Substantial relation and important gov. interest invites subjective judicial preferences and prejudices. 22


Could reasonably infer that incidence of drunk driving higher than incidence of arrest Clear differences between drinking habits of young men and women

Tools Intermediate scrutiny is the appropriate level of review for gender discrimination cases To pass intermediate scrutiny, a law must: 1) Bear a substantial relation between the governmental interest and what is being served 2) Serve an important government interest Class Discussion Notice who‟s getting the remedy here – the men. When the group getting the remedy is one that has never been discriminated against, you know the Court is using the gender consciousness rationale; the others just wouldn‟t make any sense (e.g. patriarchal superiority and majority oppressing minority). Now that the Court has decided that intermediate scrutiny is the proper standard, the Court must develop when the government should win. Michael M v. Superior Court 1) Upheld CA statutory rape law which punished the male, but not the female, participant in sexual intercourse when the female was under 18 and not the man‟s wife 2) States‟ interest is to deter underage sex. 3) The Court upholds the law arguing that if the point is to stop people from having sex with young people, the law accomplishes this result. How? Because girls can get pregnant and boys can‟t, girls already have a deterrent from having sex while boys do not. a) Notice how substantive (court looking at actual differences) of an analysis this is; it never would have survived a formal analysis 4) Because all significant harm of teen pregnancy fall on the girl, legislature is within its authority when it punishes the participant who bears less risk 5) Gender-neutral statute would frustrate law enforcement because female won‟t report the rape if she could be held responsible 6) Dissent: Statute applies to only half of the joint participants in the risk-creating conduct. Geduldig v. Aiello (1974) 1) State law excludes pregnancy-related ailments from healthcare coverage. (CA disability insurance system that paid benefits to persons in private employment temporarily unable to work because of disability not covered by worker‟s compensation). a) Legitimate state interest in maintaining the state‟s self-supporting nature and in providing adequatre coverage for those disabilities covered 2) The Court upholds the law, claiming that this is not gender discrimination, but merely a distinction between women and non-pregnant persons – not a distinction between men and women – both men and women can be non-pregnant a) Notice how formal this analysis is. Court isn‟t looking to whether there is a level playing field. Court is bending over backwards to find way at which men and women are similar or not disadvantaged. 3) Not every legislative classification concerning pregnancy is a sex-based classification. Plus, the fiscal and actuarial benefits of the law are afforded to both sexes. 4) Both pregnant women and those women who don‟t get pregnant because they can‟t afford to do so are hurt. 23

5) Court may be thinking about this issue from a paternalistic perspective. Court is making stereotypical assumptions about the way women will act. Notion of actual differences is tricky 6) Dissent: Sex discrimination singles out less favorable treatment a gender-linked disability particular to women Rostker v. Goldberg (1981) 1) Rejects claim that Selective Service Act was unconstitutional in authorizing the President to require registration of male and not females. 2) Court stated that exempting women from draft registration was closely related to congress‟ purpose of preparing a draft for combat troops. 3) In military affairs court given greater deference 4) Raising and supporting armies is substantial governmental interest 5) Dissent: women could fill at least 80,000 of the 650,000 positions for which conscripts would be inducted Caban v. Mohammed (1979) 1) Invalidated a NY law granting mother but not father of illegitimate child the right to block the child‟s adoption of illegitimate children Nguyen v. INS (2001) 1) Upholding law treating children born out of wedlock to one citizen-parent and one non-citizen parent differently depending on whether it was the mother or father who was a citizen. Board Notes Equal Protection: Sex Discrimination 1) Reasons for heightened scrutiny 2) Intermediate scrutiny standard: Craig v. Boren 3) Actual differences? a) Michael M. v. Superior Court b) Geduldig v. Aiello 02/02/04 Suspect Classifications: Sex Discrimination II What is the concern that motivates intermediate scrutiny? What is it that makes gender classifications presumptively suspect (though not as presumptively suspect as race classifications)? Can we trace a line through the Court‟s cases and see a coherent development of intermediate scrutiny? Finally, what is the result – Do gender based classifications survive more often than race based ones? J.E.B. v. Alabama (1994) 1) Gender-based peremptory juror challenges are unconstitutional a) Notice that many of these gender cases (including this one) involve men suing because the government practices are favoring women 2) Al sued J.E.B. to establish paternity and award child support on behalf of minor child‟s mother. State used pre-emptory strikes to eliminate male jurors. 3) Gender alone is not an accurate predictor or juror‟s attitudes 4) In general, you find some effect where more women would be sympathetic in a case like this to the women. Not ok to base pre-emptory juror strike on that basis because it is stereotypical. Court 24

doesn‟t want to allow government to make gender-based decisions based on stereotypes. Don‟t want to target individuals for government benefits and burdens We haven‟t seen many truly remedial state laws utilizing gender classifications until this point (most have been showing a state desire to either not impose to heavy a burden on women than it has to – Craig – or to further a male agenda). This case involved the state striking male jurors because the state felt they would be against the woman in the case – the state was attempting to help the woman out against a presumed social prejudice. Thus, the state behavior in this case seems truly remedial. Yet the Court strikes down the practice. The problem with the three-tiered approach to scrutiny (i.e. strict, intermediate, and rational basis) is that the two extremes are pretty understandable – largely because they tend to correlate with a result. But intermediate scrutiny is tougher; it doesn‟t necessarily correlate to a result. Thus, the Court interjects its exceedingly persuasive justification standard – claiming this defines what will pass intermediate scrutiny. The Court‟s real problem here seems to be the state‟s use of stereotyping – using over-broad generalizations. This necessarily implicates an issue: What distinguishes an unacceptable stereotype and an acceptable generalization? The Court latches on to the fact that the state really has no evidence other than the trial lawyer‟s „gut-feeling‟ or instinct. It may have helped the state‟s case if the state had some sort of reputable study confirming their viewpoint. This seems highly formal. Jury pool selection is inherently stereotypical. However, the Court goes further an expresses a strong concern with the perpetuation of the stereotype that categorically men have one point of view and women have another. This begins to look more like a substantive concern – people stereotyping on gender generally will do more harm than continuing the state practice (even if it has some benefit in reality) will do good. Why do we care about stereotyping based on gender? Sending a message that the differences between men and women can be blithely assumed and acted upon. Califano v. Goldfarb (1977) The Court strikes down a presumption in the Social Security Act that presumes men were the primary breadwinner; widows presumptively get their deceased husband‟s benefits while widowers had to show their wife was the breadwinner.

Califano v. Webster (1977) Women could beneficially exclude more lower-earning years in the calculation of their Social Security benefits, resulting in them receiving more benefits in retirement. The Court upholds this. Directly remedies some part of the effect of past discrimination. Doesn‟t this conflict with Goldfarb? The Court seems to have a real problem with the presumption in Goldfarb while it considers the approach in Webster to be a legitimate remedial measure. These two cases make predicting the outcome of the next difficult.


Mississippi University for Women v. Hogan (1982) 1) Court sustained male applicant‟s challenge to all-girl nursing program 25

2) Reiterated Craig standard (i.e. intermediate scrutiny), and added that gender-based classifications need an exceedingly persuasive justification to survive intermediate scrutiny. a) Government must demonstrate a direct and substantial relationship between the classification and the legitimate and important government objective it purports to serve. The test must be applied free of perceived or stereotypical notions concerning the roles and abilities of males and females. Essentially, if the stated purpose for the classification was to protect one gender because of inherent handicaps or inferiorities, then the objective itself was illegitimate. b) Use Objectives and means analysis 3) MI was doing this as a kind of gender affirmative action to help the women out. (Seems toothless) Here the state is attempting to maintain a gender classification as a remedial classification. The Court doesn‟t buy it. The Court feels the state is attempting to perpetuate gender roles. The Court declares that the state needs an exceedingly persuasive justification to get gender based classifications past intermediate scrutiny (important government objectives and substantially related); the Court wants to see that the group the state is trying to help with the program actually suffers from some disadvantage that the state‟s „remedial‟ program addresses, and if the state is sincere about their efforts to correct past wrongs. The fact is that the vast majority of nurses are women. Thus, women are not suffering from any disadvantage in the field of nursing that the state‟s program would be addressing. If the state was doing the same kind of program but with medical schools the program might survive. The Court seems to suggest that if the state was preserving a number of seats in a medical school for women, the Court would approve. Notice this is very different from race based programs – quotas and the like almost never survive strict scrutiny. How is this so? How can the Court justify greater leniency toward gender-based (truly) remedial programs that actually benefit women than toward race-based remedial programs that actually benefit minorities? Haven‟t minorities had a far rougher time in this country? Shouldn‟t remedial programs that truly benefit minorities receive the greater leniency? Remember that the Court with Bakke justified strict scrutiny for race-based classifications with color blindness; the reasons for race-based classifications are not that relevant – they are simply wrong. While a similar rational can apply to gender based classifications, the Court has decided to only apply intermediate scrutiny, which allows for a far more of a fine tuned analysis (e.g. it can better account for history, real differences, etc.). Is this justified? Thus, this is not just a simple formal analysis – even though it is a male claimant who wins – there is a real substantive analysis here. The Court decides the state program is a sham to perpetuate gender roles, and the Court doesn‟t seem (even remotely) concerned with discrimination against men as being unable to be able to get into nursing schools. The problem is that, women who‟d like to do something other than be nurses, get pushed into nursing as their only option. US v. Virginia US Supreme Court (1996) Tools Gender-based classifications are to be viewed with skeptical scrutiny 26

For gender-based classifications to survive, they must pass intermediate scrutiny (important government objectives and substantially related) by providing an exceedingly persuasive justification. Constitution‟s equal protection guarantee precludes VA from reserving Military Academy to males only VA didn‟t show exceedingly persuasive justification for excluding women and remedying the situation with VA Women‟s Institute for Leadership. Program de-emphasizes military education for a cooperative method, and isn‟t VMI‟s equal. VMI method could be used to educate women, and some women can meet VMI‟s physical standards. State actors controlling gates to opportunity may not exclude qualified individuals based on fixed notions concerning roles and abilities of males and females Generalizations about the way women are don‟t justify denying opportunities to women whose talent places them outside the average description Concurrence: If VA created a comparable school for women, it could have avoided equal protection violation. Maintenance of all-male school without comparable school for women violated EP clause Dissent: Tradition of government-funded military schools for men rooted in tradition of only sending men into military combat. (interest). Adversarial model. (relation).




Kahn v. Shevin (1974) 1) Note this was decided two years before Craig 2) Court applied a deferential standard of review in upholding state property tax exemption for widows but not widowers; it furthers state policy of cushioning financial impact of spousal loss on sex that receives heavier burden. Orr v. Orr - Struck down laws authorizing AL courts to impose alimony obligations on husbands but not wives - Hearings can determine whether women in fact were discriminated against, as well as situations where husband was discriminated against Wineberger v. Weisenfeld - Invalidated social security provision applicable when a covered wage earner dies. In case of deceased husband, widow and minor children received benefits. In case of deceased wife, only children got benefits. Wengler v. Druggists Mutual - Struck down MI workers‟ compensation law providing that a widow qualified for death benefits without having to prove actual dependence on husband‟s earnings, while men had to prove dependence on wife‟s earnings of physical incapacity to earn wages Schlesinger v. Ballard - Rejected male officer‟s challenge to sex distinctions in Navy‟s promotion system, giving women officers a 13-year tenure before mandatory discharge for want of promotion. Males had to be discharged if they had been passed over twice for promotion, even though they had served less than 13 years. Board Notes 27

Equal Protection Scrutiny for Race and Gender Invidious Classification Strict scrutiny (Brown, Loving,Korematsu) Intermediate scrutiny (Craig) Benign (remedial) Classification Strict scrutiny (Bakke, Adouand) Intermediate scrutiny (Hogan, etc.)

Race Gender

02/04/04 Other Classifications Arguably Warranting Heightened Scrutiny Race is clearly a suspect classification; it will be assumed to be inherently „wrong,‟ and strict scrutiny applies. The Court isn‟t quite as suspicious of the suspect classification of gender, which gets a less heightened scrutiny in the form of intermediate scrutiny. Some classifications are unclear; such as alienage. The Court‟s presumption when not using a suspect classification is that it gets the low level of scrutiny of rational basis review. Cleburne and Romer (both below) have some things in common: 1) The Πs both come to the Court claiming they are being discriminated against based on some characteristic 2) The Court denies to apply any form of heightened scrutiny, and applies only rational basis review 3) Surprisingly, the Πs in both of these cases win, even though the Court is applying rational basis City of Cleburne v. Cleburne Living Center US Supreme Court (1985) Synopsis Texas City zoning ordinance required special permits to build a group home for the mentally retarded, but not many other kinds of group homes. The Court concludes the mental retarded are not a suspect classification, applies rational basis, and invalidates the city ordinance. Class Discussion - Notice what this means regarding our theories of inequality mentioned above. To Justice White, heightened scrutiny serves as a deterrent to keep legislatures from doing things for bad reasons; it is a presumption of invalidity. This clearly moves the focus to the motive of the laws; not the effect of who is discriminated against. - Where individuals in the group affected by a law have distinguishing characteristics relevant to interests the state has the authority to implement, courts are reluctant to scrutinize legislative choices as to whether and how those interests are pursued. Here, equal protection requires only a rational means to serve a legitimate end. Merely requiring legislatures to justify its efforts may lead it to refrain from acting at all. The analysis: 1) Not a „Suspect Class‟ a) Mental retardation, unlike race, is often a legitimate ground to classify and treat people differently and disabilities require tailored legislative assistance formed with profession advice. 28

b) Given wide variety of needs of mentally retarded persons, governmental bodies must have flexibility and freedom from judicial oversight c) This legislative response shows that the mentally retarded are not politically powerless d) It would be difficult to distinguish a variety of other groups who have perhaps immutable disabilities setting them off from others, who cannot themselves mandate the desired legislative responses, and whom can claim prejudice from at least part of the public. 2) Rational Basis Review? a) Justice White looks at the city‟s justification for the law. He finds irrational prejudice, and from that concludes that this means there is no rational basis b) Mere negative attitudes are not proper bases for treating a home for the mentally retarded different from the others. i) This almost looks like rational basis review (irrational prejudice = no rational basis); but is it really? (1) Remember, rational basis has historically been part of a three-tier structure. It has always been the bare minimum of review; typically, the Court doesn‟t take a hard look at the situation – it merely checks to see if it can imagine some kind of rational reasons for the government‟s action, and if so, just sustains the law. (2) What Justice White does here is take a much harder look than rational basis typically requires ii) What does this mean for rational basis review? (1) The city‟s justifications here were really thin; maybe this is just the Court trying to show that you can‟t just get by rational basis with almost nothing. Justice Stevens‟ Dissent He actually advocates that all equal protection claims should get rational basis review. This whole „three-tier scrutiny‟ thing is just a bad idea. All the three-tier equal protection approach is supposed to do is to create a method to ferret out irrational discriminatory treatments – that‟s all the Court ever does; take a law, analyze it to find if there‟s any irrational discrimination, some things (e.g. race, gender, alienage, etc.) get a stronger suspicion of being irrational. That‟s all there is to it – why have a three-tier approach? Just analyze for rationality – let judges be judges. Is Stevens correct? Is there a good reason for the three-tiered scrutiny? Are the problems that the Court has encountered with three-tiered scrutiny (e.g. inconsistency in application, not very helpful in making law or predicting outcomes, etc.) the fault of the rubric of three-tiered scrutiny itself or are they the fault of a Court that fails to consistently apply their own doctrine? MA Bd. of Retirement v. Murgia - Applied rationality standards in sustaining a mandatory retirement law for uniformed state police officers - Old age isn‟t a concrete and insular group in need of protection - Dissent: Elderly discriminated against, and when legislation denies them employment intermediate scrutiny must be shown Romer v. Evans US Supreme Court (1996) Synopsis Colorado constitutional amendment barred any localities in Colorado from enacting laws prohibiting discrimination on the basis of sexual orientation. The Court strikes this down. 29

Class Discussion The Court does not hold that sexual orientation gets a merely rational basis review; it assumes (without deciding) this to be so and then decides the state would fail even this test. The Court concludes there are two problems with this amendment: 1) It singles out a group of people for differential treatment a) The Constitution demands neutrality in the law and bans classes among citizens b) Any other group can lobby for special treatment (e.g. lefties); homosexuals cannot c) Amendment 2 bars homosexuals from securing protection against injuries that public accommodations laws address. d) Deprives homosexuals even the protection of the general laws and policies that prohibit arbitrary discrimination in governmental and private settings 2) There is no rational basis behind the amendment a) A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. b) Law is based only upon animosity towards homosexuals and has no rational relationship to state interests Dissent: - Modest attempt by CO legislature to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores - General laws and policies that prohibit arbitrary discrimination would continue to prohibit discrimination based on homosexual conduct as well. They may not get preferential treatment without amending the state constitution. Was rational basis the right standard here? If so, did the Court get to the correct conclusion? Should the majority be able to „oppress‟ the minority in this way (i.e. isn‟t that democracy?), or should the Court protect the minority from majority „oppression‟ (i.e. isn‟t that what the Court is supposed to do?). Board Notes Equal Protection: Ration Basis with Bite – Cleburne and Romer 1) What do these cases suggest about the grounds for heightened scrutiny? 2) Why did the Court deny “suspect classification” status for mental retardation and sexual orientation? 3) How/why did these Πs win? 02/06/04 If you bring a „run of the mill‟ Equal Protection claim alleging you‟ve been treated unequally, the Court typically doesn‟t care, applies rational basis review, and the Π typically loses. However, if you allege you‟re being treated unequally on the basis of a suspect classification – the „thing‟ about you or your group accounts for the inequality – and you get a form of heightened scrutiny. Specifically, if your suspect classification is race, you get strict scrutiny. If your suspect classification is gender, you get intermediate scrutiny. There is one other way to get a heightened scrutiny; a denial or impingement of fundamental interests. 30

Equal Protection and “Fundamental Interests” Fundamental Rights/Fundamental interests - Some similarities in substantive due process, but fundamentally different - Fundamental rights prevents government from impinging rights of people - Equal protection is a relative doctrine; to the effect the government is doing something - Similarity: Both areas in which court is trying to identify non-textually specific certain interests that the court is going to say deserves special protection. Also, since the Warren Court, court has been reluctant to expand either of these doctrines very far. The Most Common Cases Involving „Fundamental Interests‟ that get „Strict Scrutiny‟ 1) Denial and „dilution‟ of voting rights (denial of voting at ballot box/unequal district sizes/gerrymandering) 2) Denial of access to some aspects of the judicial process 3) Restrictions on interstate travel When the Court finds that the government is denying or impinging on some fundamental interest, the Court will likely apply strict scrutiny, regardless of whether the Π is part of some suspect class. When court finds a non-fundamental interest, rational basis test is used Thus, the suspect classification inquiry and the fundamental interest inquiry are separate methods of getting strict scrutiny. However, you could have something that gets it on both inquiries (e.g. the government denies voting rights to blacks, or impinges the right to appeal of women, etc.) Regarding Interstate Travel Americans have the right to travel state to state. Within certain levels, states are allowed to set welfare levels. States used to set their welfare levels in a way that prohibited new arrivals from receiving full benefits until they had been there for several years. The Court has said this discourages interstate travel and struck down this practice. Over the course of several cases, the Court actually brought this principle under the Privileges or Immunities Clause of national citizenship under the 14th Amendment. Although neutered way back with the Slaughter-House Cases, the Court brings it back for interstate travel issues. Regarding Access to the Courts When, in order to be in trial, you need to pay for the printing of the docket to be tried. Raises issue of fundamental equality, the person of any person to avail themselves of an important right. Court identifies that interest and access to the judicial process is a matter of equal protection/fundamental interest doctrine. Substantive Due Process v. Equal Protection The equal protection of fundamental interests looks an awful lot like the fundamental rights under substantive due process (from last semester). 1) Substantive Due Process tells the government it cannot do things (e.g. deny access to abortions) a) If something is a fundamental right it cannot be denied 2) The Equal Protection Clause doesn‟t tell the government it cannot do things, instead the EPC says that if the government is going to do certain things, it must do so equally 31

a) If something is a fundamental interest, it may be denied; but it must be denied equally San Antonio Independent School Dist. v. Rodriguez US Supreme Court (1973) Synopsis Πs claimed that Texas funds public education with property taxes, and because the value of property in their district was very low, resulting in low funding for their schools. The Πs claimed both that they were a suspect class and that they were being denied a fundamental interest, and thus under either (or both) analysis‟ they should receive strict scrutiny 1) Suspect Class – They are poor 2) Fundamental Interest – They are being denied as good of an education as other districts, and without education they cannot speak or read as intelligently (thus impinging on their 1st Amendment rights), and their ability to vote intelligently (thus impinging on a recognized fundamental interest) Tools Two Times to Apply a „Heightened‟ Scrutiny 1) When the law operates to disadvantage some suspect class a) Traditional Indicators of a Suspect Class: The class is i) Saddled with disabilities ii) Subjected to a history of purposeful unequal treatment iii) Relegated to a position of political powerlessness that requires protection from majority oppression 2) When the law impinges on a fundamental right a) Fundamental Rights: i) Rights that are explicitly or implicitly protected by the Constitution itself Wealth Discrimination Where wealth is involved, equal protection does not require absolute equality or precisely equal advantages Class Discussion Complete Denial The Court denies both the fundamental interest and suspect class claims by saying that prior cases have always alleged that the interest or the class is being completely denied; and the Πs here aren‟t being totally denied a public education. Is this correct? Not really – the EPC is necessarily about matters of degree (e.g. Brown) 1. There was no showing that the funding system discriminated against a definable class of “poor people.” 2. Even if such a class could be defined, its members were not completely deprived of educational opportunities Justice Powell also concludes that the way to find fundamental interests is that they are found either explicitly or implicitly in the Constitution. This doesn‟t really help; obviously, if you‟re being denied an explicit constitutional right, you don‟t need the EPC. What Powell doesn‟t do is explain how you find an „implicit‟ right. This effectively stops the development of other potential fundamental interests. If 32

you‟re denied education, then you can‟t fully use your rights to vote etc. Government isn‟t responsible for the degree of relative impairment. Right to education is not explicitly guaranteed, but at a minimum, because of the importance of education and being able to use freedom of speech and right to vote effectively, there should be a more searching equal protection analysis in guaranteeing education. Dissent (Marshall) „Nexus‟ Method of Fundamental Rights 1) Determine the extent to which a constitutionally guaranteed right is dependent on interests not mentioned in the Constitution. a) As the nexus between the constitutionally guaranteed right and the nonconstitutional interest draws closer, the nonconstitutional interest becomes more fundamental and the judicial scrutiny applied when that interest is discriminatorily infringed upon must be increased Class Discussion Marshall‟s „Sliding Scale‟ Approach Whether heightened scrutiny should apply is a sliding scale; certain kinds of interests are critical for exercising constitutional rights. A quality education is quite important, but not critical, and thus the proper standard is intermediate scrutiny. Plyler v. Doe US Supreme Court (1982) Synopsis Court applied heightened scrutiny to hold that the exclusion of undocumented children altogether from Texas public schools violated Equal Protection Clause. Tools Illegal Aliens ≠ Suspect Class Education ≠ Fundamental Right Public education is not a „right‟ granted to individuals by the Constitution (Is there a truly heightened basis for equal protection in this case?) A legislative classification that threatens to create an underclass of future citizens/residents does not comport with the fundamental purposes of the 14th Amendment. As complete deprivation of basic education would place these innocent children at a lifelong disadvantage, the State had the burden of showing that the classification was rationally related to a substantial state interest. Class Discussion After Rodriguez, this seems like an easy case – there‟s no fundamental interest to education, illegal aliens are not a suspect class – slam dunk. However, the Court applies strict scrutiny. How does this happen? Substantial state interest needed. Powell (who wrote Rodriguez) agrees with the majority in Plyler. Why? There‟s a complete denial of education here; that gets him on board. For the rest of the Court, Brennan provides no answer (as the dissent points out), but it must be something about the combination of the factors involved. Notice how much this resembles Marshall‟s sliding scale approach. Additionally, the law is directed against 33

children, and imposes discriminatory burden on the basis of a legal characteristics over which children have little control 02/07/04 This is the last class talking about substantive equal protection before we run on to the First Amendment. In between there are a few days of random things; „unconstitutional‟ private actions, concurrent congressional and judicial enforcement of certain constitutional provisions. Equal Protection and Economic Inequality What does the Equal Protection Clause have to say about wealth and poverty classifications? The closest position to a holding for those questions was in Rodriguez (above); where the Court said those are not suspect classifications and there is no fundamental interest in education. What are the implications of this holding? finds this interesting because, as a practical matter, there is no greater measure of social inequality than wealth and poverty. In modern times, wealth has a lot more to do with you social position than race. Pros and Cons of „Strict Scrutiny‟ for Wealth Classifications 1) Cons a) It would result in strict scrutiny applying to governmental initiatives that truly help the poor (e.g. welfare is impermissible) i) Answer: We could make distinctions between benign and invidious wealth classifications b) Wealth classifications are necessary for our government; think about the IRC – the more money you make, the higher percentage of income you pay. How could the government operate if the IRC was struck down? i) What would happen if we moved to a flat tax? (1) Isn‟t 20% of a million dollars a lot more money than 20% of $20k? Is this more „equitable‟ than a graduated tax? ii) What would happen if we moved to a lump sum tax? (1) What if everybody had to pay $3k? Would that be more „equitable‟? c) Under a capitalist society inequality is inevitable d) Unlike race and gender, which remain immutable throughout a person‟s life, wealth can change 2) Pros a) ? In the following cases, it‟s as if the Court tries to reconcile the conflict between the Equal Protection Clause and the notion of „The Market‟ . . . Warren Court Dicta 1) Suggested de jure wealth classifications should trigger strict scrutiny a) Harper v. VA Bd of Elections: “Lines drawn on the basis of wealth or property, like those of race, are traditionally disfavored.” 2) Suggested de facto wealth classifications might trigger strict scrutiny a) McDonald: “a careful examination ... is ... warranted where lines are drawn on the basis of wealth or race, two factors which ... render a classification highly suspect and thereby demand a more exacting judicial scrutiny.” 34

Burger Court Decides Wealth Classifications Do Not Trigger Strict Scrutiny 1) James v. Valtierra (1971) a) A law making procedure that disadvantages a particular group does not always deny equal protection Access to the Courts Economic barriers impeding access to the criminal and civil process are often carefully scrutinized and invalidated. The Court generally does so on the basis of equal protection, but often appears to use a due process rationality. We have an economic system that depends on market pricing. When you do this, you will have some amount of inequality. Court hesitating to designate things as fundamental interests. Because economic inequalities involve many different mechanisms, if we were going to have a strong doctrine of equality, judges would have to analyze many different issues of social policy. Judges shouldn‟t be second-guessing legislative policy-making. There are all kinds of way in which government policy can have a strong influence on who has food or shelter. Are these about money and economic equality, or a fundamental interest of access to the courts? Markets can be free if government strips down its involvement with people‟s economic status. There is a template for the court to roll up their sleeves and deal with economic inequality because of the all race decision-making under equal protection. What makes markets so sacred, in that it cannot be touched? What constitutes inequality? If you charge the same price to everyone, you aren‟t treating everyone unequally. However, some people have the means to pay and others don‟t. If you are deciding to charge a price for governmental services, you are inherently removing some people from the process. Governmental goods and services. Stuff that the government gives and takes from you. (See judicial interference with economic matters). Government isn‟t really great at distributing wealth. Not redistributing wealth, but redistributing access. Background Cases 1) Griffin v. Illinois (1956) a) Illinois required Δs who wished appellate review to pay for a trial transcript, the Court strikes down. b) There can be no equal justice where the kind of trial a man gets depends on the amount of money he has c) A state must provide a trial transcript to an indigent criminal Δ appealing a conviction on nonfederal grounds i) Equal Protection Rationale (1) States cannot discriminate on the basis of poverty any more than they can for race; the ability to pay advance costs bears no rational relationship to guilt or innocence ii) Harlan‟s Dissent: Due Process Rationale (1) „Equal Protection‟ cannot mean state is required to give to some for free what others are must pay for (2) State is not constitutionally required to provide any appeals, therefore cannot be a violation of due process to make people pay for them 2) Douglas v. CA (1963) a) Under equal protection, a state must appoint counsel for an indigent Δ for a first appeal (so long as it is granted as a statutory right) from a criminal conviction. i) Harlan‟s Dissent: Due Process 35

(1) Every financial exaction a state imposes on a uniform basis is easier for the rich to comply with than the poor; this cannot be a violation of „Equal Protection‟ (a) Equal Protection does not impose on states the affirmative duty to lift handicaps flowing from differences in economic circumstances 3) Ross v. Moffitt (1974) a) Indigent Δs are not entitled to appointed counsel for discretionary appeals (i.e. to the state Supreme Court) i) Neither equal protection nor due process alone explain Douglas or Griffin b) Equal Protection Rationale i) Equal Protection does not require absolute equality, but only that indigents have an adequate opportunity to present their claims fairly within the adversarial system. (1) The fact a particular service may be beneficial does not mean it is constitutionally required 4) Boddie v. Connecticut (1971) a) Indigent welfare recipients sought a divorce, but could not afford the required fees ($60) to even begin the action. The Court struck down the law under equal protection. i) Due Process Rationale (1) Given that: (a) The marriage relationship is a fundamental right under substantive due process (see last semester), and (b) That the state has monopolized the method for dissolving the marriage relationship, then (c) Due process prohibits a state from denying access to its courts for marital dissolution solely for inability to pay (2) At a minimum, due process requires that: (a) Absent a countervailing state interest of overriding significance, (b) Persons forced to settle their claims of rights and duty through the judicial process must (c) Be given a meaningful opportunity to be heard 5) US v. Kras (1973) a) Indigent Δ required to pay a filing fee to begin a voluntary bankruptcy proceeding. The Court upheld. i) Due Process Rationale (1) Unlike Boddie with marriage, the interest in discharge in bankruptcy is not „fundamental‟ (2) Unlike Boddie, where the court was the sole remedy, governmental control over debts is not so exclusive 6) Ortwein v. Schwab (1973) a) Court upheld a $25 filing fee imposed by Oregon as a condition for judicial review of a denial of welfare benefits 7) Little v. Streater (1981) a) Court struck down a CT statute that required a party in a paternity suit requesting blood grouping tests to bear the costs of the test b) Heavy evidentiary imbalance between mother and father c) State provided the only forum for resolving the dispute 36

MLB v. SLJ US Supreme Court (1996) Synopsis The Court held that the inability to pay an appeals fee may not prevent appellate review of a parental termination fee decree. The Court treats this as an equal protection problem, which it is – rich people can afford these appeals, poor people cannot. Equal protection clause requires waived court fees in civil cases only when the case involves a fundamental right. Refusals to Expand „Fundamental Interests‟ Analysis to Economic Inequalities 1) Dandridge v. Williams (1970) 2) Lindsay v. Normet (1972) Board Notes Equal Protection: Wealth/Poverty Classifications 1) Theories of Inequality a) Pros and cons of heightened scrutiny i) Suspect Classification ii) Fundamental Interests iii) Sliding Scale 2) Animus or Effects Concern a) Access to courts cases: i) Equal protection or due process 02/10/04 Source of Power Art. 1 Section 8 Bill of Rights 13th Amendment 14th Amendment 15th Amendment Subject Whose Power? Commerce Congress Various Basic rights Court Slavery Court/Congress Due process/inc/equal Court/Congress Voting Court/Congress Scope/Coverage Private/States Fed. Gov‟t states/private States States/Fed.

Civil Rights Legislation and State Action I We move on to include not just governmental restraints but restrictions on seemingly private conduct, and the concern here extends beyond the Court‟s role to that of congress in enforcing the post-Civil War Amendments Prior to the Civil War, there was Article 1, § 8 which empowered Congress and the Bill of Rights which empowered the Court. Note that there is no explicit limit to what Congress can regulate; the Commerce Clause regulates private people all the time. The Bill of Rights is phrased in terms of regulation of the government.


The post-Civil War Amendments complicate things. Substantively, the 13th Amendment eradicates slavery, the 15th removes voting barriers, and the 14th has the Due Process Clause and the Equal Protection Clause. They were enacted largely to obliterate slavery. Interestingly, these amendments include specific provisions granting Congress the power to enact laws to enforce them. The 14th and 15th Amendments are also specifically limited in their applicability to governmental as opposed to private action. All grant co-extensive power both to court and congress. By their terms, these new constitutional provisions confer a new degree of enforcement authority upon the federal courts. Also, Congress may enforcement the terms of the amendments through legislation. Disagreement arises when the government authorizes private entities to do something, exercise some power, or when private behavior closely resembles government behavior. How „close‟ to the state does private behavior have to be to trigger constitutional protections? Federal courts, for the first time, are able to force compliance on the states. 14th and 15th amendments end up apply to state AND federal governments. State action now means governmental action. Right to free speech could also be restricted by private parties Civil Rights Cases US Supreme Court (1883) Synopsis With the Civil Rights Act of 1875, Congress prohibited racial discrimination in public accommodations (e.g. inn keepers, railroad cars, theaters, etc.). This affected a variety of privately owned businesses. Section 1 of Civil Rights Act of 1875 provided: “all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accomodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theatres, and other places of public amusement.” Power vested in Congress to enforce the article by appropriate legislation. Clothes Congress with the power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States. State‟s understood scope of regulatory authority would be impaired if congress could regulate privatelyowned businesses. Private businesses would also not appreciate the federal government in a position to ban discrimination by private entities. Congress tried to base the Act on both the 14th and 13th Amendment. The rejects them both: 1) No to the 14th Amendment – The 14th simply says that „No state shall...‟; the Court declares this cannot be used as a restriction on private conduct. 2) No 13th Amendment – significant because it doesn‟t have a state action requirement. This argument is rejected by the court because the 13th amendment just says slavery. Can‟t apply this amendment to all badges of inferiority than just slavery Tools Constitutional rights against state aggression cannot be impaired by the wrongful acts of private individuals, unsupported by state authority in the form of laws, customs, or judicial or executive proceedings. Dissent (Harlan) Quasi-Public Functions 38

Harlan rejects the Court‟s 14th Amendment analysis. When private entities make themselves available to the public on a broad scale, these entities serve a quasi-public function, and this subjects them to government regulation. The 14th Amendment is about equal citizenship, not what necessarily can be traced to state action Class Discussion Can the federal government really tell people what to do in their private affairs? Isn‟t the government attempting to? Two Lines of Inquiry 1) Whether the private actor is sufficiently entangled with, or sufficiently „like,‟ the state to consider the private conduct „state action‟ 2) Whether the applicability of constitutional guarantees to the private actor unduly impinges on the private interest in being free to behave in ways constitutionally barred to the state Two (Possibly Three) Approaches to finding „State Action‟ in Private Conduct 1) Public Function – Private enterprises whose operation is essentially a public function are sufficiently „state-like‟ to be treated as a state for constitutional purposes (Marsh v. Alabama, below) a) Ask if what the private Δ is doing tantamount to what the government would normally do? 2) Nexus/Significant State Involvement – Determines if there are sufficient points of contact between the private actor and the state to justify imposing constitutional restraints on the private actor or commanding state disentanglement (Shelley, Burton, below) 3) (Hidden Third Possibility) – State action exists where a state rule of law has been established or enforced so as to deny a federal constitutional right The Public Function Test 1) Marsh v. Alabama (1946) a) A company owned a town. Jehovah‟s Witnesses start going door to door and get thrown out of town. They sue the town on First Amendment grounds, and the Court agrees. b) The Public-Function Test i) Nominally private entities that serve a predominantly public interest are subject to constitutional constraints and are deemed to be state action. ii) The more the owner opened his property to the public, for his own benefit, the more the owner‟s rights became circumscribed by the statutory and constitutional rights of those who used the property 2) Evans v. Newton (1966) a) Held invalid under 14th amendment equal protection clause operation of a park in Macon, GA, for whites only pursuant to a trust in a will, even after city trustee was replaced with private trustees. b) Parks are generally public domain 3) Logan Valley (1968) OVERRULED a) People tried to engage in free speech exercises at privately owned shopping malls. The Court rules in favor of those seeking free speech. b) Union members are allowed to picket in front of an employer‟s store inside the shopping center. 39

c) Like the town owner in Marsh, the shopping mall owners are serving a public function d) The mall owner lacked a realistic claim of privacy in his mall
[In its journey from Logan Valley to Hurley, the Court transformed expressive property from a public resource that fosters dissident expression into a private preserve that the Constitution shields from dissident expression. These cases reveal the basic template for the Court's approach to colliding First Amendment interests in every expressive and religious context. The Court initially takes First Amendment access interests very seriously. In subsequent cases it reverses course, using the conceptual primacy of autonomy over access and/or the characterization of access interests as “public” regulatory affronts to deny the constitutional grounding of access interests. On the other side of the cases, the Court grants exclusive constitutional force to the autonomy interests, which it eventually characterizes as expressive, of property owners, whose “private” status secures their rights and relieves them of constitutional obligations.]

4) Hudgens v. NLRB (1976) a) People again tried to engage in free speech exercises at privately owned shopping malls. The Court rules against those seeking free speech. b) The Court overrules Logan Valley and essentially limits the public-function test to a very small class of cases (company towns) c) Shopping centers were not public forums because no state action existed. Because shopping centers were private property, the Constitution did not interfere with the mall owners‟ power to suppress speech, regardless of its relationship to the mall. 5) Terry v. Adams (1953) a) 15th amendment violated by exclusion of African-American voters from pre-primary elections of the Jaybird Democratic Association, a voluntary club of white democrats Shelley v. Kraemer US Supreme Court (1948) Synopsis The homeowners in an area contracted amongst themselves not to sell their homes to racial minorities. Eventually, some homeowners did sell to some minorities, and the other homeowners sued to enjoin their moving in. Equality in the enjoyment of property rights was regarded by framers of amendment as an essential precondition to the realization of the basic civil rights and liberties which the Amendment was intended to guarantee The Court sets aside the K. when the effect of the action denies rights subject to protection of 14th Amendment, it is the obligation of the court to enforce constitutional commands. Tools Even though the K was private, it cannot be enforced without the help of the state. Once a state court gets involved to enforce a K, the K becomes state action. This is an entirely private agreement among people. What do you need to convert that cooperate action to something that is constitutionally liable? When is private not really private? Court seems to be particularly sensitive about racial discrimination. Shelley is drawing a line when it comes to forcing states to enforce racial discrimination. Class Discussion 40

This case creates the nexus test. How does this rationale not eliminate any kind of discrimination that affects a large group of people? The shopping malls need ordinances, permits, zoning variances, etc. Does this not make everything state action? 02/13/04 Civil Rights Legislation and State Action II This stuff is looked at right after stuff like standing; when a party is suing a private party based on constitutional constraints. What happens if you are feeling like your rights are deprived but it is coming from a private party but has some indicia of public authority to achieve state action. Tests: - Public Function Test (Marsh v. AL) o Even though company town is not the government per se, we will hold state action. Private company defendant is doing something that almost exactly mirrors what the state does. Private defendant holding a public function. - Nexus Test (Shelley)  State court is enforcing a private contract, so it is a state action. Does this swallow up all private activity?  How do we put some meat on the bones is state action but provide limits?  1 whether the claimed constitutional deprivation resulted in the private parties exercise of a right of privilege having its source in state authority  2 Whether the private actor in all fairness must be deemed a government actor Burton v. Wilmington Parking Authority US Supreme Court (1961) Synopsis Restaurant was leasing space in a DE municipal parking garage. The restaurant refused to serve blacks. The Court finds the restaurant‟s discrimination to be „state action.‟ Tools Some Significant Extent Private conduct abridging individual rights does no violence to equal protection unless to some significant extent the State, in any of its manifestations, has been found to have become involved in it. This is a case-by-case analysis. Class Discussion This case demonstrates the application of the nexus test that Shelley created The DE Supreme Court rejected the Π‟s contention, concluding there was no state action: 1) The restaurant was accessed from the street, not the parking garage. (Physical angle – when you walk into the coffee shop, do you know you‟re in a public structure?) a) Note that this means that one element of the state action analysis is about perception; would a person think that what the private actor is doing is state behavior 41

2) 3) 4) 5)

Only 15% of the cost of the garage was paid upfront from state funds About 60% of the structure was dedicated to private businesses like the restaurant Only about 1/3 of the structures income comes from parking The restaurant‟s connection to the state is a landlord/tenant one; the state cannot tell the restaurant what to do (Lessor/Lessee Relationship)

The US Supreme Court reverses: 1) While only 15% of the cost was paid upfront by the state, the rest is state loans that are being paid off by the private businesses 2) The primary purpose of the structure is a public parking garage 3) All money in play is state money; they are determining the financial operation 4) The parking garage and the restaurant provide mutual benefits; the reason it‟s a great place to have a restaurant is because there‟s parking right there. Thus, the restaurant will have more income because of its location a) Any argument about losing business by serving blacks means, if true, that the state is gaining benefit (from its tenants) via their discrimination This analysis demonstrates how intensely fact specific this analysis is; the value of precedent in these situations is relatively limited. This is really the „high water mark‟ of state action analysis. The „rollback‟ begins with Moose Lodge, below. Fundamentally, if you can find a way in which the government is doing something that enables racial discrimination, you probably have state action. Court seems willing to emphasize the factors that bring out that connection. Coffee shop profit motive goes to the heart of the court‟s concern about having the government in a position to benefit from racial discrimination. State Action via Involvement in Private Action: To „Some Significant Extent‟ 1) Gilmore v. Montgomery (1974) a) White‟s Concurrence: i) To violate equal protection, the state need not make, advise or authorize the private decision to discriminate that involves the state in the practice of segregation or would appear to do so in the minds of ordinary citizens 2) Moose Lodge v. Irvis (1972) (License relationship) a) Private club won‟t serve blacks. The Π points out that the major money for the lodge comes from liquor sales, and this club has a state liquor license. The Court doesn‟t buy it. b) If a liquor license gives way to state action, then any small way the government dips its hand into the private sphere creates a state action. c) To find unconstitutional state action in situations where the impetus for the discrimination is private, the state must have significantly involved itself with invidious discrimination; it must foster or encourage the discrimination i) Licensing (1) Is there any situation where a mere licensing by the state would be enough to impute 14th Amendment constraints? (a) Why is a liquor license not enough? (i) As a general matter, it‟s not very hard to get a state liquor license. For example, think of how hard it is to obtain a state gambling license. (ii) Thus, if the issuance of a license is based on a very selective process the Court is more likely to find state-backing of the licensee‟s behavior 42

(b) Ongoing state oversight (i) If there is some kind of ongoing process where the state is constantly coming in and providing its stamp of approval, the Court is more likely to find state support State Action via State „Encouragement‟ and „Authorization‟ 1) Reitman v. Mulkey (1967) a) CA adopts a constitutional amendment saying that no fair housing laws prohibiting discrimination may be made. b) A state may not authorize discrimination in such a way that it will significantly encourage and involve the state in private discriminations i) Harlan‟s Dissent: (1) To implicate the 14th Amendment, state action must be affirmative and purposeful; actively fostering discrimination Jackson v. Metropolitan Edison Co. US Supreme Court (1974) Tools Nexus The inquiry must be if there is a sufficiently close nexus between the state and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the state itself. Case-by-case The nature of the state‟s involvement may not be immediately obvious; and a detailed inquiry is required. Maybe the nature of the right being violated is part of the analysis here. Maybe in a procedural due process, the court would find the weight of the right at stake not enough to justify state actions, even giving the nature of the monopoly relationship.

Class Discussion Though some of these cases (e.g. Rendell-Baker, Blum) suggest that public funding doesn‟t necessarily make a private entity a „state actor.‟ This is often a question of degree; how much control does the state exercise? State Action Since the 1980s 1) Blum v. Yaretsky (1982) a) To 14th Amendment is not implicated until it can be said the state is responsible for the specific conduct of which the Π complains. i) This typically occurs only when the state has exercised a coercive power or has provided such significant encouragement that the choice must be deemed to be that of the state. 2) Rendell-Baker v. Kohn (1982) a) Acts of private contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts 3) Lugar v. Edmondson Oil Co. (1982) a) „State Action‟ for 14th Amendment analysis = „Under color of State law‟ for § 1983 analysis 43

4) 5) 6)



b) Limiting the holding to prejudgment attachment of property, the Court concluded a private party‟s joint participation with state officials in the seizure of disputed property is sufficient to characterize that party a „state actor‟ NCAA v. Tarkanian (1988) San Francisco Arts v. USOC (1987) Edmondson v. Leesville Concrete Co. (1991) a) Racially motivated peremptory challenges to jurors in civil cases. In the famous Batson case, the Court determined the government cannot used race based peremptory challenges, but Edmondson involves private litigants. The Court relies largely on Shelley. b) If the government confers on a private body the power to choose the government‟s employees or officials, the private body will be bound by the constitutional mandate of race-neutrality c) Nonexclusive factors to be considered: i) The extent the „private‟ actor relies on governmental assistance/benefits (Burton) ii) If the actor is performing a traditionally governmental function (Terry v. Adams, Marsh v. Al) iii) If the injury caused is aggravated in a unique way by the incidents of governmental authority (Shelley v. Kraemer) DeShaney v. Winnebago City Social Services (1989) a) The Due Process Clause is a limitation on state power to act, not a guarantee of certain minimal levels of state action. Brentwood Academy v. Tenn. Secondary School Athletic Ass‟n (2001) a) A „private‟ entity may be deemed a state actor because of public entwinement in its management and controll

Board Notes State Action: Nexus Test 1) The „Rule‟: Edmondson a) Two-Part Test i) Whether the claimed constitutional deprivation resulted from the private parties exercise of a right or privilege having its source in government authority (1) I.e., the violation of rights is something the private actor was only able to do because he was empowered by the government ii) Whether the private actor in all fairness should be deemed be a government actor 2) Method: Burton 3) Different sorts of nexus: a) License: Moose Lodge; broadcast? b) State encouragement or authorization: Reitman, Jackson, Flagg Bros. c) State funding or regulation: Rendell-Baker, Blum d) Privatization? 02/18/04 Congressional Power to Enforce Civil Rights Under § 5 of the 14th Amendment Traditional Rights Protection Breakdown 1) Very general constitutional terms 2) Delineation of the content of the Constitution left to the courts 3) Implementation of the Constitution was left to litigation resting on the congressionally-prescribed remedies 44

The Civil War Amendments all have enforcement provisions; this is very unusual. Generally, Article I § 8 describes the scope of Congress‟ power for enforcement – it was the Court that provided rights enforcement of the laws that Congress wrote. Because the Amendments are all ultimately constitutional provisions, it is the Court that gets to decide the extension of Congress‟ power here. Congress uses its enforcement power under these Amendments to enact various types of civil rights legislation. While these are largely uncontroversial, some of them reach out to private behavior (e.g., no one shall deny the rights...) (see Guest, below). In Civil Rights cases, there is a hardcore state action requirement. The court will not enforce breaches of these laws when Congress has authority under these cases. Substantive or Remedial? Another issue is whether Congress has the power to interpret the 14th and 15th Amendments: Can Congress declare that certain state action is violating the Amendments? Does Congress have substantive power – the power to determine what are violations of the 14th and 15th Amendments, or does Congress only have remedial power – the power to enact laws after the Court has interpreted what are violations of the 14th and 15th Amendments. If both Congress and the court both have that power, what happens if they disagree? Court is going out of its way to avoid the concern that congress and the court come into conflict. Background Cases 1) US v. Guest a) Congress has the power to punish private behavior under statutes enacted under the 14th and 15th Amendments 2) Lassiter v. Northampton County Election Board (1959) a) Black citizen presents a facial attack on a literacy test for voting registration; literacy tests are inherently violations of the Constitution. The Court rejects this claim. Facial challenge – court should strike down this statute completely because it cannot be applied constitutionally. Here, courts found that there are some instances in which literacy tests may be applicable. Balancing respect for state prerogatives to regulate conduct of elections with concern for racial discrimination in voting. As applied – Congress has not rejected literary tests across the board; Congress did some picking and choosing


3) South Carolina v. Katzenbach (1966) a) SC sues the US claiming that certain provisions of the Voting Rights Act of 1965 are an improper use of congressional power. SC use „literacy tests‟ to determine who could vote and who couldn‟t. The Act identified certain states (including SC) using a coverage formula focusing on the use of literacy tests and violation areas, and found those states have been historically bad regarding racial discrimination in voting, and then precluded them from using certain restrictions (including literacy tests). SC claims that literacy tests are a good thing; they are facially legitimate (see Lassiter, above), and Congress has merely defied the Court‟s will by enacting a law forbidding them. (15th amendment). 45

The Court sustains the Act, finding that Congress legitimately found a long history of racial voting discrimination resulting from the states‟ constant weaseling around the holdings of the Court and congressional laws. Congress has correctly determined that literacy tests are actually unconstitutional. In light of that, this is a legitimate remedial exercise of congressional authority. b) Is this not a little suspect? In Lassiter, the Court determined that literacy tests are constitutional. In South Carolina, the Court determines that they actually feel literacy tests are unconstitutional in certain circumstances, and it just so happens that Congress has identified those circumstances correctly. Thus, the Court stakes out its position as the substantive interpreters of constitutional rights. Court is making a distinction: court is still the authoritative constitutional interpreter. We conclude that congress stepped into an area where we haven‟t answered yet. Congress did something, and we now say that, as a matter of substantive due law, Congress was right. The Scope of Congressional Power to Enforce Voting Rights: “Remedial” or “Substantive” Katzenbach v. Morgan (Broad interpretation of Section 5 power) US Supreme Court (1966) Synopsis NY law required voters to read and write in English. A huge number of people in NYC were illiterate in English but, as a result of having been educated in Puerto Rico, were literate in Spanish. Section 4(e) of the Voting Rights Act of 1965 provided that anyone who completed the up to sixth grade in Puerto Rico in a language other than English could not be denied the right to vote because of an inability to read/write English. Upheld Section 4(e) in part on grounds that Congress could find a literacy test contradicted the constitution. The Court decides that Congress could be doing two things: 1) Ensuring that Puerto Ricans are not going to be denied the rights they would be able to obtain through voting – that they have equal access to governmental goods and services a) This is a remedial theory: this is completely uncontroversial (and settled under Court interpretation) approach to Equal Protection (14th Amendment) – everyone has equal access to governmental goods and services. Thus, this is not a substantive interpretation by Congress, or 2) Congress could be enacting a law that puts a stop to unconstitutional abridgment of voting rights a) This would be a substantive theory: this would be a specific interpretation of constitutional law that the Court has not yet ruled on, and in fact does not reach in this case b) Indeed, the Court declares that they do not have to interpret the substantive constitutionality of this type of literacy test. What problems was congress trying to solve in this case? - Congress was remedying invidious discrimination in voting o Congress is taking a bigger step away from settled understanding of 14th amendment. Court has never said that English literacy voting requirements violated the 14th amendment. - If you don‟t vote, you don‟t have representation and Congress won‟t represent your views. Congress was acting to prevent discrimination to New York Puerto Ricans. (goods and services) o Broader area of legislative concern. This is something the court considers a matter of 14th amendment rights and automatically violates their 14th amendment rights. Clearly consistent with court‟s pre-existing understanding of the 14th amendment 46

Harlan’s Dissent Failing to reach the substantive issue of whether the NY voting practice is constitutional is effectively the abrogation the interpretation of that question to Congress. One Way Ratchet Theory Harlan points out that the possibility raised by congressional power over substantive constitutional rights is that what happens Congress decides to shrink or change rights that the Court has set. What happens when Congress disagrees with the Court‟s interpretation of a constitutional provision? Brennan‟s „one way ratchet theory‟ is that Congress can only make rights protection more expansive and thus cannot shrink Court holdings regarding rights. However, this theory doesn‟t address the possibility of change, when Congress doesn‟t shrink Court interpretation but changes it. More Cases 1) Rome v. US (1980) a) § 5 of the Voting Act states that if certain (Southern) jurisdictions are going to change things about how they do their elections, they need to get preclearance from the US Attorney General. If they are denied preclearance, the state can then go to federal court to petition for permission. The Attorney General can deny permission based on the appearance that either the change is motivated by a discriminatory intent or will result in a disparate impact. The Attorney General denies such preclearance to GA. The courts find that there is no discriminatory intent, and thus the Attorney General‟s denial is based solely on disparate impact. GA points out that the Court has determined that the Constitution is only violated based on discriminatory intent. AG rationally could have reasonably concluded that the disparate impact would give rise in the future to intentional discrimination. The Court upholds § 5 of the Voting Rights Act. This is a legitimate action of remedial congressional power – Congress identified a potential source of discrimination and prohibited it. b) Like South Carolina, the Court is bending over backwards to accommodate congressional power, and find Congress‟ action remedial. Board Notes Congressional Power to Enforce the 14th and 15th Amendment Case Issue SC v. Katzenbach Literacy Test Katzenbach v. Morgan English Literacy Requirement Rome v. US Denial of preclearance for voting changes 02/20/04 More on the congressional enforcement of legislation under § 5 of the 14th Amendment (and § 3 of the 13th Amendment):

Nature of Congressional Power Remedial Remedial/Substantive Remedial? Substantive?


Congress started by using its § 5 power for voting rights issues; South Carolina. In SC, the Court basically said “we haven‟t said so before, but Congress is correct here – Congress is merely remedying a constitutional violation that we have identified (although this identification came after the fact).” In Morgan, the Court approved congressional legislation that had no Supreme Court case on point – neither before, during, or after. The Court gave alternative rationales supporting Congress‟ action. First, Congress could be ensuring equal access to government services. Second, Congress could be preventing a constitutional violation by requiring literacy tests (check this), which meant that Congress had actually interpreted the Constitution and provided substance. In Rome, the federal government denied GA the ability to effectuate a change its voting procedures. GA claimed that discriminatory intent was necessary for Congress to strike down state action – disparate impact is not enough. The Court allows the federal action by claiming that Congress was merely preventing a risk of discrimination. Much like SC, the Court essentially found that Congress merely identified a constitutional violation that the Court had somewhat already recognized, and that this was therefore in line with Supreme Court precedent. The Court went out of its way in SC and Rome to make sure that it was holding Congress was not exercising substantive power over the Civil War Amendments – their rationales are questionable. Since Rome, things have changed, for one, unlike the Warren Court, the modern Court is much more cautious about „finding‟ new constitutional rights. The recent cases are much less sympathetic to Congress. There are numerous reasons for this: 1) Separation of powers issues 2) Given the scare of substantive congressional power, the more liberal justices are less likely to advocate for such obvious possibilities 3) Federalism issues: a) The Civil War Amendments are restrictions on states; that‟s why they were put into the Constitution. The conservative Court is concerned about states retaining the power they „should‟ under the Constitution 4) In the 1960s, the Court and Congress were much more on the „same page‟ regarding civil rights Confinement of Congress‟ Civil Rights Enforcement Power to „Proportional‟ and „Congruent‟ Remedies City of Boerne v. Flores US Supreme Court (1997) *Not going to overturn any of the earlier decisions we talked about **What happens if the court and congress manifestly disagree Holding - Congressional power to enforce the 14th Amendment does not include authority to expand the substantive sweep of the amendment - Congressional enforcement power is remedial and preventative, not substantive. The RFRA changed the substantive scope of the 14th amendment by overriding the Court‟s interpretation of the Free Exercise Clause Synopsis 48

Free exercise of religion clause – if the government targets you for some sort of abuse based upon your religion, that is a per se violation of the constitution. But when the government merely takes some action that has the effect of disadvantaging you when the federal government comes within religious rights, what happens? A Native American church was denied a building permit by the local zoning board because they used peyote. The church challenged the zoning board‟s decision based on the Religious Freedom Reformation Act. (Section 5, 14th Amendment) With RFRA, Congress had enacted a law essentially overruling Supreme Court precedent, and provided a new „test‟ for determining religious civil rights violations. In Employment Division v. Smith, the Court had determined generally applicable state laws (not intentionally discriminatory) that incidentally impinge the free exercise of religion, the law must merely pass rational basis review. The congressional law attempted to overrule this, and said that when a state enacts such a law, the law must survive strict scrutiny. Tools Congruence and Proportionality When Congress deters or remedies constitutional violations through legislation, there must be a congruence and proportionality between the injury to be deterred or remedied and the means adopted to that end. Legislative Deterrence of Constitutional Violations Legislation that deters or remedies constitutional violations can fall within the sweep of Congress‟ enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into legislative spheres of autonomy previously reserved to the states Preventive measures prohibiting certain types of laws may be appropriate when there is reason to believe that many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional Religious Freedom Neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling government interest Class Discussion Here is the big trigger for the stand-off regarding congressional enforcement power: Congress flatly disagrees with the Court and legislates directly against the Court‟s preference. Everybody hated the Smith decision; and the language of RFRA is directly in the Court‟s face. The Court strikes down the RFRA as applied to the states (interestingly, the Court ignores RFRA regarding the federal government – which makes sense, if Congress wanted to apply RFRA to itself, that‟s really just the federal government tying its own hands). Congruence and Proportionality What does this even mean? This is another species of means/ends review – it is a type of heightened scrutiny 1) Congruence (ends) – Is what Congress identifies as a „rights problem‟ something that the Court thinks is a „rights problem‟ 49

2) Proportionality (means) – Presuming Congress has identified a rights problem, has the means Congress has enacted to remedy the problem appropriately tailored (maybe even narrowly tailored?) to achieve those ends Why does RFRA not meet this test? RFRA is not designed to target state laws that are likely to be unconstitutional (according to the Court‟s interpretation). Congress would have had to show that many of the states‟ generally applicable laws are in fact just disguised intentional discrimination. Congress has gone off and struck down all kinds of laws the type of which the Court has determined do not violate the Constitution. There is no showing that the state is out to get religious believers – the Court has already determined that states must intentionally discriminate to violate the freedom of religion. Note that the congressional laws in South Carolina, Rome, and Morgan (although, the Court implicitly rewrites Morgan to be totally remedial), would have passed this test. With this case, the notion of substantive congressional power under § 5 of the 14th Amendment is gone. However, note there is still room for Congress to give a maybe slightly expansive interpretation of Court precedent, the problem is when Congress flatly contradicts the Court What Does Congress Have to Show? How could Congress satisfy the congruence and proportionality standard? See Kimel, below. Other Cases 1) Kimel v. Florida Board of Regents (2000) a) Congress exceeded 14th amendment remedial authority in allowing state employees to sue states for violation of the Age Discrimination in Employment Act b) Congress doesn‟t have to outright prove a violation of constitutional rights to legislate in this area. i) Congress should make a thorough record of the violation that is going on (1) Isn‟t weird to have the Court analyzing congressional use of facts? Doesn‟t Congress normally assess the facts and legislate accordingly? Yes. (2) Further, the Court in Morrison (above, and last semester) completely ignored many of the facts Congress brought to it. (a) Not congruent b/c haven‟t found that age disc is a significant problem (b) Not proportional b/c imposing broad sweeping remedy for a problem that even if it does exist is not sig tailored 2) TN v. Lane (2004) a) Challenge by paraplegic who objected to lack of elevators in a county courthouse while going to defend a criminal charge b) Title II is a permissible exercise of congress‟s civil rights enforcement power, at least in cases involving access to the courts. c) Protecting against deprivation of certain fundamental rights (interest) i) Access to the courts/Due process ii) Strict scrutiny (equal protection) d) Failure to accommodate persons with disabilities will often serve as an outright exclusion 3) U.S. v. GA (2006) a) Court considered whether a disabled inmate in GA prison could sue state under Title II of ADA. b) Prison officials refused to accommodate paraplegic prison‟s disability-related needs c) Invokes 8th amendment‟s guarantee against cruel and unusual punishment 4) Nevada Dept. of Human Resources v. Hibbs (2003) 50

a) Upholding Congress‟s power to apply Family Medical Leave Act to the state under section 5, 14th amendment b) FMLA narrowly tailored to prevent gender discrimination in the workplace c) Well-chronicled history of state laws limiting women‟s employment opportunities Board Notes Congressional Enforcement Power 1) South Carolina, Rome – Strong remedial power: a) Congress may precede Court in identifying rights violations, b) Congress may freely design remedies 2) Morgan – Substantive power or not? a) Congress seemingly has independent power to define rights violations 3) Boerne, Kimel – “Congruence and proportionality” a) Weakened remedial power? b) What must Congress show to use § 5 of the 14th Amendment power? 02/23/04 Freedom of Speech Overview The First Amendment says “Congress shall make no law abridging the freedom of speech”, and is incorporated against the states through the 14th Amendment, and has been applied to the Executive Branch as well. Problems arise in the interpretation; what is „speech‟ and what is it to „abridge‟ it? What about laws prohibiting criminal conspiracies? When someone offers a hit man money to kill somebody, that must surely be subject to laws abridging such speech – the same with blackmail, and yelling „fire‟ in a crowded theater. Thus, the words of the 1st Amendment cannot be as absolute as they first appear. First Amendment History Compared to other constitutional provisions, there is not much in the historical record (i.e. from the Constitutional Convention) elaborating what the 1st Amendment means. Three Classic First Amendment Theories 1) Effective Self-Government („Democracy Centered‟) a) This theory focuses on the ability to have free discussion of political ideas. b) In America, the People are the sovereign. If the People are the sovereign, then they need to know what they are doing and have as much info as possible in order to make wise decisions. c) Need to have the opportunity to have access to all kinds of information. If any information is censored, then we are less well-informed. Hypos – Would the following be protected under this theory? i) Corporate sponsored advertisement regarding health care (1) Yes – Clearly protected under this theory ii) Magazine article on hang-gliding (1) No – Hang-gliding is not really a political issue, and thus would not necessarily be protected under this theory 51

iii) Sexually explicit painting in a museum (1) Maybe – Are there any political implications to the art? If not, then this would probably not be protected b) Speak or Receive i) Does this theory protect the right to speak or to receive political information? It protects the right to receive the information. Hypo i) A political idea has been „worn out‟ – everyone‟s heard it. Someone begins broadcasting the idea again; can the government stop them? (1) Yes – this theory protects the communities interest in being able to be exposed to ideas; once the idea is sufficiently spread, everyone‟s heard it. You have no right to keep speaking it b) Other i) Non-Citizens – This theory will protect even non-citizens speech ii) Means to an End – This theory does not protect free speech itself. Rather, it protects as a means to an end of idea exposure that is necessary to safeguard the structure created by the Constitution. 2) Individual Self-Fulfillment (Personal autonomy) a) As you are exposed to different ideas, you „grow‟ as a human being, thus speech is instrumentally valuable as a means to an end. Further, free speech has an intrinsic value; it can create happiness. b) We value speech on its own terms. The ability to speak freely is essential to human-hood c) Speaking gets you what you want, develops your faculties and makes you smarter. Beyond intrinsic sense of autonomy, there are instrumental interests in play here. d) Focuses mainly on the speaker, rather than using the speaker as a means to an end as the others do. Hypos – Would the following be protected under this theory? i) Corporate sponsored advertisement regarding health care (1) Probably not – While this could help the listener „grow‟ as an individual, but this theory is focused on the fulfillment of the individual speaking, this generally means natural persons – not institutions. ii) Magazine article on hang-gliding (1) Yes – The writer surely loves hang-gliding and is being fulfilled by speaking it iii) Sexually explicit painting in a museum (1) Yes e) Categorization v. Balancing i) Effective Self-Government (1) This is a version of a categorical approach: (a) There are different categories of speech (e.g. political speech, offensive speech), and this theory determines what categories of speech are protected (b) This is neatly precise – it is possible to draw clear lines regarding applicable levels of protection (c) However, this provides very narrow protection 52

ii) Individual Self-Fulfillment (1) This is a version of a balancing approach (a) Individual items of speech are subjected to a balancing test (b) This is potentially wishy-washy – almost anything can be argued; line-drawing can be difficult (c) However, this provides a very broad protection iii) The categorization and balancing methodologies are in constant tension with one another, and we‟ll see them throughout the Supreme Court cases; the Court loves to categorize, but the Court has a definite affinity for means-ends balancing. 3) Search for Truth (the „Marketplace of Ideas‟) a) Somewhat of a compromise between the first two theories b) Free speech exists to facilitate the search for truth i) If we have access to as many ideas as possible, we will be more likely to learn „the truth.‟ ii) More abstract that the effective self government theory (which is geared specifically toward government maintenance) and thus more protective, however it still embodies many of the weaknesses of both theories c) Ideas do battle in the marketplace of ideas. We need to have all of the ideas on the table. On that basis, we will ultimately figure out what is the true or best idea, d) ***Are we presuming that there is such a thing as the truth? Or are we assuming that what people conclude to be the truth is actually the truth?*** e) Economic „Marketplace‟ v. Expressive „Marketplace‟ i) The metaphor of a marketplace for ideas is not really a good comparison. „Marketplaces‟ are economic concepts. Further, the Constitution has long been interpreted as not really delving into economic issues; why should the marketplace of free-speech be any different. ii) However, are there ways in which the marketplace of ideas really does operate like the marketplace of goods and services? f) Difference between marketplace and town hall theory – Self-government theory posits an idea of deliberation and collective self-government. That is not how an economic marketplace works. i) Self-government theory is narrower, about the search for political truth or results. ii) Maybe political speech is a very broad idea. Something unattractive of saying that there is a narrow area of protected speech. iii) Might be good that government gets to protect many different types of speech iv) May want more of a focus because we care more about some kinds of speech protection than others, maybe we think political speech is more valuable. Maybe we think political speech is especially vulnerable to censorship. Maybe the government wants to censor dissident speech? v) Maybe we need to make choices about what kinds of speech is really going to be heard? vi) Broad speech protection may be shallow. Narrowing scope of political speech protection maybe accomplish narrow but deep protection Board Notes Three Theories 4) Effective Self-Government 5) Individual Self-Fulfillment a) Categorization v. Balancing 6) Search for truth 53

a) Economic „Marketplace‟ v. Expressive „Marketplace‟ 02/25/04 Incitement to Unlawful Action Up until WWI, the assumption was that all the 1st Amendment did was prevent the government from prohibiting speech before it was published. This has changed. As the Court defines what speech is unprotected, it is implicitly describing what speech is protected. „Clear and Present Danger‟ Schenck v. US (Holmes Majority) (1919) Synopsis Anti-war activists were distributing materials urging people not to report for the draft. The government brought charges under the Espionage Act of 1917 (new statute), which forbid advocacy of disloyalty and interference with the draft, disrupting enlistment in the armed services. Class Discussion This is the first „big case‟ where somebody thinks to raise the First Amendment to defend against punishment for speech. Clear and Present Danger The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. 1) This is a case-by-case test – the fact that we were at war at the time of this decision definitely contributes to the analysis. Given that we are at war, the possibility of this danger is clear and present 2) Terms are malleable Break the test up: 1) Danger – The danger here is that people will not report to the draft; an „evil‟ that Congress has the right to prevent. a) Notice that under this test, there is no requirement that the danger has actually occurred. This test allows the prosecution to focus on the speech itself. The fact that it could have happened is enough. 2) (Clear and) Present – Two possibilities: a) The danger is „present‟ in time i) The danger may be about to occur b) The danger is „present‟ in likelihood i) The danger is likely to occur 3) Clear a) Relationship between the speech and the action Congress is allowed to proscribe. b) Causal connection between the speech and the prohibited action 54

Notice the deference to the government‟s story about the potentials of the danger; the Court is very deferential in times of war. To pass Schenck (especially in a time of war), the government need only articulate some believable reason for the need for the speech prohibition. Abrams v. US (Holmes Dissent) (1919) Synopsis During the war in Germany, the US military went into Russia to help the old Czarist regime against the revolution. Pro-Soviet activists distributed pamphlets to munitions workers urging the cessation of munitions manufacturing. The Espionage Act prohibited attempts to interfere with the German war effort. Statute says you can‟t urge a stop in production of materials related to the war in Germany. The Court concluded that to affect Russia is necessarily to affect the war in Germany. Class Discussion Specific Intent In dissent, Holmes argued for specific intent – the Δs did not intend to affect the Germany war effort, but only the Russian revolution. The government is really punishing these people, not for their action, but for their beliefs The „Marketplace of Ideas‟ Over history people have found that they are much better off if their good and true ideas triumph in the marketplace than to be triumph via suppression. In the situation in this case, the government should have to triumph by its truth, not be suppression. There‟s also an atmosphere of irrelevancy – Holmes‟ seems more approving of these advocates because he‟s convinced they‟re idiots and no one will follow them. Does this not suggest that you have the right of free speech so long as it isn‟t very effective? It‟s saying that, when dissent becomes ineffective, it can be punished. Schenck to Abrams Are Holmes‟ positions in both cases reconcilable? NO Masses Publishing Co. v. Patten (Learned Hand) S.D.N.Y. 1917 Class Discussion Duty and Best Interest It is only proper for the government to punish advocacy if it urging upon others it is their duty or in their best interest to break the law. Merely urging people to resist the law is not in itself breaking the law. There is no over-act that inheres in someone‟s urging of others to violate the law. Looks at direct and indirect consequences of speech. Also, what is the real likelihood that this act will bring about bad action. Perhaps Hand‟s letter correspondence with Holmes between Schenck and Abrams actually motivated Holmes‟ shift from Schenck and Abrams. 55

The „Red Scare‟ The Russian revolution took hold, and many states passed criminal syndicalism statutes designed to nip the bud of communism in the US. The clear and present danger test gives way to the incitement test. Whitney v. California (Brandeis Concurrence) (1927) Synopsis Criminal Syndication Act of California (1919). Whitney is a member of a „communist cell‟ that adopts a policy of violent overthrow of the government. Both the majority and Brandeis uphold the conviction. Class Discussion Incitement Test: Brandeis, in concurrence, concludes that that when people are prosecuted for what they say, there must be: 1) A serious danger of violent action a) The mere fact that Congress has the power to prohibit the feared behavior is not enough b) Speech may not be suppressed simply because it may lead to violence or the destruction of property c) The danger feared must be substantial 2) The harm the government feels must be a harm that would be against the government 3) The danger must be imminent; it must be a harm that is going to happen right away The prohibited speech must be speech that is inciting people to violent action at the moment This develops a notion that so long as ideas aren‟t imminently violent; any ideas are okay Board Notes 1) Schenck (Holmes Majority) – Likelihood, „Clear and present danger‟ of unlawful action 2) Abrams (Holmes Dissent) – Likelihood, immediate harm, specific intent 3) Whitney (Brandeis Concurrence) – Imminent harm, serious threat of violence, unlawful action expected or intended (specific intent) 02/27/04 The first wave of big free speech cases arose in political speech cases from 1919-1927. Justice Holmes initially created the clear and present danger test. This test, however, is quite permissive of the government – the Abrams version of this test turns out to be very lenient: so long as the speech has some tendency to lead to the evil then it can be barred. In Whitney, Brandeis creates the incitement test – the speech to be prohibited must literally be inciting people to illegal action. There must be: 1) An incitement by a speaker to others to commit a serious harm (e.g. violence) a) Brandeis even suggests this to mean violence against the government 2) The serious harm must be likely to happen 56

3) The serious harm must be imminent a) So long as there is an additional opportunity to debate over the idea, the government can not prohibit the conduct b) Only when there is no more time for words may the government interject 4) For the speech to be punishable, the speaker must have specific intent to commit the serious harm a) It is not enough that the speaker was merely speaking of the benefits of the harm, she must be specifically intending the harm. Thus, the Court has created its first area of unprotected speech. The Smith Act Prosecutions In Whitney, we saw the analysis of the criminal syndicalism statutes as a result of the first Red Scare. With WWII, we now have a second Red Scare. In response, Congress creates its own criminal syndicalism statute – the Smith Act. The Act prohibits advocating the forcible overthrow of the government or even joining a group that advocates such overthrow. (Gitlo and Whitney). Brandeis writes a concurring opinion to take Whitney to another level; imposing stringent requires on the government limiting speech, likelihood, specific intent, serious injury as a matter of violence directed at state itself, and imminent danger of unlawful conduct coming about. (“Incitement Test” rather than “Clear and Present Danger” Test). In Holmes dissent and Brandeis concurrence in Whitney, get analysis about way free speech is important. It isn‟t just that they are reasoning through the legal problem in the abstract, thinking about why we care and what‟s at stake. Creating an affirmative platform on which these legal problems will stand. Rhetoric: foundational documents for developing a robust idea of freedom of speech and why it matters. Dennis v. US (Plurality) 1951 Synopsis In 1950s, Soviet Union developed nuclear weapons, and there is a major concern that communist agitators could topple our government. The Δs were leaders of the Communist Party, who advocated the affirmative duty to overthrow the government in violation of the Smith Act (above). Communism, circa 1950 is different and threatens the government, and it is capable of overthrowing our way of life. Tools Clear and Present Danger Test The question is whether the gravity of the „evil,‟ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger (taken from Judge Learned Hand) Class Discussion The majority here shifts to the view of Brandeis‟ concurrence in Whitney; but yet the Court affirms the Δs convictions – the Court is genuinely frightened by the fact that the Communist Party has international connections; the Court is terrified that Russia is pulling the strings for the US party. Dennis‟ Clear and Present Danger Test The Court obviously retains the serious harm element of the clear and present danger test from the Whitney concurrence. However: 1) The Court largely dismisses the Whitney concurrence element of likelihood 57

a) The Court seems to feel that overthrow of the government is serious enough to remove this element. “Gravity of evil” b) What is important is that the harm is very serious. Overthrowing the government is about as bad as it gets. 2) The Court totally ignores the Whitney concurrence element of imminence. a) By the time to communist revolution happens, it will be too late to stop it 3) The Court seems to even side-step the specific intent (as formulated in Abrams) requirement a) While the Δs clearly want the government overthrown, they were not inciting people to it right now – rather this is classic political advocacy. Jackson‟s Concurrence Jackson is even more frightened; he argues that the clear and present danger test was developed in the context of individual offenders – the Communist Party is a group. Frankfurter‟s Concurrence There is a big balancing act between national security and expressive freedom. Primary responsibility for adjusting interests which compete in the situation before us of necessity belongs to Congress. It is self-delusion to think that we can punish defendants for their advocacy without adding to the risks run by loyal citizens who honestly believe in some of the reforms these defendants advocate. Douglas Dissent There comes a time when speech loses its constitutional immunity, speech innocuous one year may at another time fan such destructive flames that it must be halted in the interests of the safety of the Republic. Need immediacy. HYPO: What if this was a fundamentalist Muslim cleric in a suburban Philadelphia mosque, meeting with impressionable young men and advocating blowing up subway stations because it‟s God‟s will. The Modern Incitement Test Brandenburg v. Ohio 1969 Synopsis The Cold War was still on, though the Red Scare was passing – radical political advocacy has become more common and less threatening. The Δ was a leader of a Klan rally, who claimed at a rally that someday they would take revenge on the government. They‟re convicted under the Ohio criminal syndicalism statute, and the Court reverses. Class Discussion The Court ostensibly adopts Dennis and actually comes very close to revitalizing the Brandeis‟ concurrence from Whitney. In the 35 years since Brandenburg the Court has not revisited this issue. There was no imminent danger of unlawful action coming to pass. The rhetoric was vague and imprecise. Not clear there was specific intent. Clan has done more violent things than the Communists ever managed to pull off in the United States. Why would the communists get hit and the Klan members get off? Despite Klan has succeeded in taking over some towns, their acts are mostly engaged in terrorizing individual people than actual governments. Dennis was a higher profile for the majorities‟ fear. Brandenberg applies across the 58

board, and used as a device to firm up what Holmes and Brandeis did in the 20s, creating ironclad protection for advocacy of unlawful conduct. We don‟t need to punish speech to deal with these particular problems. Board Notes „Clear and Present Danger‟/Incitement Serious Harm X X X X X X Likely to Happen X Imminent X Specific Intent X

Whitney: 1927 (Brandeis Concur.) Dennis: 1951 Brandenburg: 1969

03/08/04 Thus far, the Court has only defined what speech is not speech protected – we see this with the Court‟s dealing with incitement to lawless action through the clear and present danger test. As it turned out, this was not very speech protective. Eventually, the Court narrowed clear and present danger of incitement to lawless action to only apply when the danger of the lawless action is serious, is going to occur almost instantaneously, if there‟s almost no way for further speech to remedy the problem, and if the speaker specifically intends violence. This essentially limits the government‟s power under this doctrine to people trying to incite riots. Fighting Words and Hostile Audiences These are the inverse of the traditional incitement to lawless action problem; here the speaker is attempting to get herself beaten up – either by a single or small group of people (fighting words) or by a large group (hostile audiences). Fighting Words The Court initially decides that the government can restrict fighting words. However, similar to the incitement doctrine, the Court soon narrows this power. Cantwell v. Connecticut 1940 Synopsis Δ Jehovah‟s Witness was playing a record on a street corner and telling those that past that his religion was better. People threatened him and he left. He was later arrested for disturbing the peace, creating a disturbance in a public place. The Court overturns his conviction based on the 1st Amendment. Tools Statements likely to provoke violence and disturbance of good order may be barred 59

Class Discussion Even though the Δ wins, this is not a necessarily heavily speech protective opinion. The Court provides many caveats: the Δ‟s speech was not “noisy, truculent, overbearing or offensive.” The Δ did not intend to insult or affront the hearers. Limits on speech-protective inclinations This suggests that had the Δ intended to insult or affront people, threaten people with bodily harm, or if he had been overbearing or offensive, then the speech could have been barred. (True threats exception – if you actually threaten someone with bodily harm in the context where a reasonable person would perceive the possibility of having it carried out). The Heckler‟s Veto Problem Defining the contours of 1st Amendment speech protection by the reaction of those who hear it provides the listeners with the ability to „veto‟ speech based on the fact that the listeners react negatively. This is a problem; the most aggressive listeners determine the limits of the 1st Amendment. Speech Values Liberty Value – People should get to say what‟s on their minds Importance of creating a dialogue – speech isn‟t working as communication if everyone is just yelling at each other. Tension between importance of communication and non-intervention in speech. Chaplinsky v. NH 1942 Synopsis Another Δ Jehovah‟s Witness – this time he calls a police officer a “God damned racketeer” and a “damned Facist.” The Court upholds the conviction. Tools Fighting Words Words, which by their very utterance, inflict injury or tend to incite an immediate breach of the peace are fighting words and may be barred. Class Discussion The Court concludes that fighting words (as defined) are of such “slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Balancing and Categorization Notice the balancing and categorization going on here (we talked about this at the beginning of the 1st Amendment). The Court here is categorizing; fighting words are, as a category, not worthy of protection. However, the Court gets to this categorization via balancing; fighting words generally will lose on a balancing test. Notice as well that the balancing aspect of this fighting words test involves a social interest in order and/or morality. Think about this: 60

Order This makes sense. We all have an interest in keeping order; the trains run on time, the streets are safe, etc. Further, if speakers have a right to bring the world crashing down on them by driving people to fight them, the notions of free speech and the communication of ideas are not benefited. Morality This is dangerous. We may not have an interest in allowing the government to legislate morality. This case is still good law – the government may punish fighting words – when someone goes out and speaks injurious and inciting words, they may be punished. Cohen v. California 1971 Synopsis Nothing was actually said – the Δ was in a courthouse wearing a “Fuck the Draft” jacket. He is arrested under a breach of the speech statute. The Court overturns the conviction. Tools When someone deliberately provokes people to attack him, the government may bar the speech. Class Discussion Clearly, this is speech designed to provoke a reaction. Further, the speech seems of low value – it is expressing an idea, but it is unnecessarily vulgar and provocative. Also, the government has a high interest in provoking both order (surely, this jacket is likely to incite somebody) and morality (the language is vulgar, and wouldn‟t be allowed on the airwaves). However, the Court overturns the conviction. How You Say It “One man‟s vulgarity is another man‟s lyric.” The Court concludes that the Δ was not deliberately provoking people to attack him, but was merely making a general statement. Further, the Court finally decides „value‟ is determined not only by what you say but how you say it. This gives the Δ‟s medium of the jacket and use of vulgar language a value. Avert the Eyes The Court also concludes that people need to have a thick enough skin to look the other direction when they see something potentially offensive. In the absence of a truly captive audience, people can look away from the Δ‟s jacket.  Fighting words specifically directed at a particular person, here talking to group This is a death knell to Chaplinsky‟s statement that the government can use morality to regulate speech. Perhaps the Δ‟s language is offensive and immoral, but this does not justify government interference. Allowing such regulation allows the government to regulate speech. There needs to be an immediate flashpoint. Can‟t punish speech that has the mere tendency to incite a reaction. We want to facilitate dynamic change or a reinforcement of the best understanding society has. Emotive force of speech is part of its message and isn‟t divisible from what the speech is saying. 61

Hostile Audiences - Generally, speech intended to provoke a hostile audience to violence fell outside the ambit of constitutional protection. - The hostile audience doctrine provided that provocative speech could be subject to a state‟s police power only if the speaker provoked violence by his own words. - A speaker who did not provoke such violence could not be arrested for breach fo the peace merely because of the reaction of a hostile crowd.

Hypo Imagine Al Queda supporters go to ground zero, and have a rally praising the highjackers. The normal New Yorkers in the surrounding area are obviously not pleased – should the government be able to prohibit the rally? Further, if such a rally must be allowed, it is almost certainly going to require police protection. Who must bear the cost of such protection? Should the speakers have to make a down payment ahead of time, or receive a bill afterwards, or should the government have to foot the bill? This is a right versus entitlement issue. Rule In general, 1st amendment prohibits the government from regulating the content of speech. Fighting words and incitement are narrow exceptions to that general prohibition because maybe they are not discursive, communicative words are all but just an insult. But in a hostile audience situation, there is a speaker saying something the audience doesn‟t like. It is a cost-shifting analysis. Methods to resolve issue: arrest the speaker and get some cops in there and stop the audience from attacking the speaker. Who should bear the cost of preventing the violence outburst: the speaker or the state? Implicates fundamental debate about first amendment. (1) Shield – protect you from government sanction of speech. In this case, it doesn‟t require the government to subsidize or facilitate your speech (2) Sword – the 1st amendment just doesn‟t protect you if you have the means to speak, it requires the government to facilitate your expression. Is it a negative protection or an affirmative command of the government to expand speech. Board Notes Fighting Words May government restrict speech to preserve order? Yes (Yes) May government restrict speech to preserve morality? Yes No Emotive element of speech protected by the 1st Amendment? No Yes

Cantwell/Chaplinsky Cohen

Cantwell, Chaplinsky - Words that tend to incite a breach of the peace - Law value - Ok to preserve Order + Morality Cohen - Only to prevent 62

Hostile Audiences: Should government or speaker bear the cost of provocative speech? 03/08/04 The Court has thus far has made very narrow exceptions to free speech – the government has to jump through some hoops to ban speech. Conflicting forces: some speech is genuinely bad, although we do not want the government to be able to regulate based on morality or content. For example, all the old speech regulation cases were situations where the government was going after left-wing radicals; is it feasible that these were the only people saying dangerous things? Unlikely, but that‟s who the government chased down. RAV presents a similar problem; the justices are trying to consider if there is some basis for classifying cross-burning as unprotected speech. The Court has a quirky interpretation of what happens when the government protects some but not all of a certain kind of speech. RAV v. St. Paul (Hate Speech) (1992) Synopsis St. Paul bias-related crime ordinance prohibited placing symbols known to cause anger or resentment in racial groups. Δ burned a cross on a black families‟ lawn. The Court strikes down the ordinance. Tool Even when the government is regulating within a category of unprotected speech (such as fighting words), the government may not seek to regulate the speech based on the speech‟s content (or, for that matter, viewpoint). Class Discussion Note there is no question whether or not this type of conduct can be prosecuted – trespass, maybe assault, etc. The Court‟s concern is there is something wrong with the way this ordinance Category of fighting words constitutes unprotected speech. If it is only fighting words, then the speech is not protected. Doctrine of Overbreadth in 1st amendment law Δ makes several claims: 1) The ordinance is overbroad – It punishes stuff that is not fighting words a) Overbroad regulations – regulates some conduct that isn‟t supposed to be regulated b) Court‟s response i) Assumes for the sake of argument that the ordinance is not overbroad and covers nothing but fighting words, however ii) The Court concludes that is not okay – Even when the government is regulating within a category of unprotected speech, the government may not seek to regulate the speech based on the speech‟s content. (1) When statute is overbroad and improperly sweeps in protected speech it is overbroad & should be characterized as unconstitutional 63

(a) This is b/c of ct‟s special concern that protected speech is not chilled by ordinances (2) Still a problem with deciding which subset of unprotected speech to punish based on the content of the speech. c) Reasoning i) The problem here is that this is regulation based on ideas, based on the reasons for doing something ii) The question is: What gets you in trouble under the regulation? (1) In this situation, certain types of hate speech are banned (2) The government cannot use a regulation that makes the ideas behind a unprotected speech illegal Distinction between Content-Based Regulations - Content-based regulation of speech – government is prohibiting speech based upon content, and subject-matter of speech. These regulations may be even-handed, but it is prohibiting a general category of speech based upon its content. Invalid. Strict Scrutiny. - Viewpoint-based regulations – More offensive because government is taking sides saying which ideas are ok and which aren‟t. In RAV, the Court suggests several exceptions to the basic holding of RAV: 1) The government can regulate unprotected speech based on the ideas behind so long has all the government is doing is going after the worst version of the unprotected speech – “most obscene obscenity” a) For example, in obscenity cases, the government knows that obscenity is unprotected. The government can therefore directly regulate the most obscene obscenity. b) Thus, while the government cannot generally make distinctions based on the ideas behind fighting words (see RAV), it could regulate the most fighting fighting words i) Could St. Paul in RAV have argued that its regulation is within this exception? Is crossburning not the most fightingest of fighting words? 2) The government can also draw content based distinctions within categories of unprotected speech when certain types of the unprotected speech cause actual tangible harms and other types of the unprotected speech do not. a) The government can certainly make distinctions aimed at harmful secondary effects of speech i) Could St. Paul in RAV have argued that its regulation is within this exception? Is hate speech not going to cause greater harmful secondary after effects than most other kinds of speech? 3) The government can draw content based distinctions within categories of unprotected speech when the government is really just going after action, not ideas, and the regulation merely just incidentally sweeps in ideas and expression a) For example, Title VII cases involve sexual harassment, which is certainly expressive of an idea, but when the government regulates under Title VII it is really going after the conduct of the harassment. i) Could St. Paul in RAV have argued that its regulation is within this exception? Couldn‟t cross-burning being conduct that the city is trying to regulate? The RAV Court‟s response would to the questions concerning whether the ordinance falls within the exceptions is that there are worse kinds of speech that the ordinance doesn‟t touch. In the end, hate speech per se is not a category of unprotected speech – it is too tied up with ideas to become categorically banned. It may be regulated only when it crosses over the line to fighting words, and only then under RAV. 64

Viewpoint Discrimination Scalia and Stevens argue whether this is content based (bad under the 1st Amendment) or viewpoint based (just about per se invalid under the 1st Amendment) discrimination. Bigoted fighting words is getting a legal smackdown. Viewpoint discrimination occurs when the government is trying to regulate based on which side of the coin you‟re on (e.g. it‟s okay to speak anti-discrimination but not okay to speak pro-discrimination). This almost never survives under the 1st Amendment. Content discrimination occurs when the government is trying to regulate entire topic discussion. This usually doesn‟t survive under the 1st Amendment. Scalia and Stevens have sharply different perspectives on which constitutes each. Concurrences The concurrences (Stevens and White) argue that the ordinance is overbroad and that this is a problem. Facially, the ordinance will punish use of these symbols when they are placed to cause mere resentment; speech causing resentment, of course, is not fighting words. The proper mode of analysis is that the statiute punishes anti-black and anti-white bigots equally. It‟s not a viewpoint discrimination but content discrimination. Tricky distinction. The concurrence approach is much simpler. Wisconsin v. Mitchell Synopsis Wisconsin statute enhances the punishment for standard assaults and batteries if the attack is motivated by racial animus. The Court upholds the statute. Class Discussion How is this reconcilable with RAV? When the Court defines a category of speech as “unprotected,” it is essentially removing that speech from the classification of “speech.” For example, the Court essentially has concluded that fighting words are not speech. The sentence enhancement was based on the defendant‟s racial motive in committing a crime, rather than on his abstract beliefs. The statute in RAV prohibited expression based on content, while the Wisc. Statute focused on conduct (racially-based assault). The statute in this case is aimed at conduct unprotected by the 1st amendment. Wisc. Statute singles out for enhancement bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm. Comparison between unprotected speech and conduct. Virginia v. Black -The respondent, Barry Elton Black, had been convicted of violating a Virginia statute against cross burning. In this case, the Court struck down that statute because it makes the act of cross burning as prima facie evidence of intent to intimidate. Such a provision, they argue, blurs the distinction between proscribable "threats of intimidation" and the Ku Klux Klan's protected "messages of shared ideology." 65

However, cross-burning can be a criminal offense if the intent to intimidate is proven. It is ok to ban cross burning with intent to discriminate. Intent to intimidate requirement important because, if you threaten someone with violence, it is not protected speech (not just the expression of an idea). - The Court found that Virginia's statute against cross burning done with an attempt to intimidate is constitutional because such expression has a long and pernicious history as a signal of impending violence. Justice O' Connor delivered the opinion stating, "a state, consistent with the First Amendment, may ban cross burning carried out with the attempt to intimidate." In so doing, the Court created a new area of constitutionally unprotected speech for "true threats." Under that carve-out, "a State may choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm." - The Court did, however, strike down the provision in Virginia's statute which stated "Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons," holding that the provision was facially unconstitutional because of its "indiscriminate coverage." The state, therefore, must prove intent to intimidate. Board Notes RAV: Views of the Case Court (Scalia): Impermissible content (viewpoint?) based distinction within a category of unprotected speech Concentric circles (little St. Paul circle inside big Fighting Words circle) Concurrences (White, Stevens): Overbreadth Circle of fighting words merely overlaps somewhat with the circle of St. Paul ordinance Scalia‟s permissible grounds for content-based distinctions within categories of unprotected speech 1) Matters of degree (“most obscene obviously”) 2) Regulations aimed at conduct (Title VII) 3) Distinctions aimed at harmful secondary effects of speech 03/15/04 We‟ve seen that neither incitement nor fighting words gets First Amendment protection. However, in the more recent cases, the Court has narrowed these categories. Thus, things appear to be heading somewhat in opposite directions. We now move into sexually explicit speech. The Court has broken this down in three major categories: 1) Obscenity – This is a term of art; it receives no 1st Amendment protection 2) Child Pornography – No 1st Amendment protection 3) Pornography, etc. – If sexually explicit „speech‟ is not obscene and not child pornography, it receives full 1st Amendment protection Obscenity Notice that the Court in these cases is not declaring obscenity criminal; the Court is merely giving the states permission to regulate a particular category of speech if the states so choose. Stanley v. GA 66

Some major ground rules: 1) The state cannot prosecute people for the possession of obscenity within their own homes. 2) This does not apply to child pornography. Miller v. CA 1973 Synopsis Δ conducted unsolicited porno mass mailing to advertise his shop. Ad brochures were themselves found obscene. These brochures were sent to unwilling recipients who had not requested the material. Tools Obscenity Exists Where: 1) The finder of fact must find that: a) The average person, b) Applying contemporary community standards, c) Would find that the work, taken as a whole, d) Appeals to the prurient interest 2) The finder of fact must find that: a) The work depicts or describes, b) In a patently offensive way, c) Sexual conduct d) That is specifically defined by the applicable state law 3) The finder of fact must find that: a) The work, taken as a whole, b) Lacks serious literary, artistic, scientific, or political value Three-Prong Miller Test Material is obscene & not protected by 1A if: – 1) The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest – 2) the work depicts in a patently offensive way sexual conduct specifically defined by the applicable state law and – 3) the work, taken as a while, lacks serious literary, artistic, political or scientific value. (SAFE HARBOR PROVISION!!) o If material meets this defition of obscenity, then the state can prohibit its distribution if the mode of distribution entails the risk of offending unwilling recipients or exposing the material to juveniles Class Discussion Notice that this test requires the state statute to specifically define the sexual conduct proscribed. The Vagueness Doctrine Why „specifically described‟? General constitutional principles require notice of what behavior is subject to prosecution. Further, non-definition enhances the likelihood of chilling speech – people will avoid constitutional behavior for fear that it will be determined illegal. Why Sexual Conduct? 67

Why does sexual conduct get singled out here? What about violent imagery? The Court seems to feel that sexually explicit speech is particularly undeserving of protection. However, shouldn‟t this cut the other way – the point of the 1st Amendment is to protect minority speech from majority domination. The Court behaves exactly counter to that and embraces the majority viewpoint. The question is: Why? Contemporary Community Standards Notice also that this test uses contemporary community standards. There is no uniform standard for the whole country. This has some benefits: people in NYC are not held to the standards of rural Kentuckians. However, what about the internet? This removes community borderlines entirely. Further, in a unique rule in 1st Amendment law (and the law generally), this standard sets the majority viewpoint as the measurement of what is offensive in a given case. Think about how counter-intuitive this is for speech protection (especially if the speech is given from a minority point of view). The Prurient Interest All the Court really does here is ask the average person if they think the material at issue appeals to the base sexual interest of „somebody else‟ (i.e. the bad people). Notice the problems: 1) Viewpoint Problem – This places one viewpoint as completely superior to another viewpoint 2) Content Problem – This standard regulates entirely due to content Therefore, this standard means that a state can regulate sexually explicit speech solely on the grounds that it is offensive. Cross-Over The Courts cases have always elevated the importance of political speech though its obscenity cases have always criticized sexually explicit speech. The Court never seems to ponder the notion that these two mediums may someday cross over each other (e.g. gay marriage and AIDS issues).

Paris Adult Theatre I v. Slaton 1973 Synopsis Clearly marked adult movie theater showed porno films. It was determined that the exterior advertising was not obscene or offensive, but that there were signs at the entrance stating that patrons must be 21 yrs old & able to prove it. Further warning that those who would be offended by untidy should not enter. State prosecuted the theater for displaying obscene material. (showing sex films in theaters). Class Discussion Notice the way this moves away from the „avert your eyes‟ reasoning of Cohen, above. The Court explicitly expresses a concern of the exposure of children to sexually explicit material here. Note that this is not the law; a state cannot ban speech merely because children may be exposed to it. They can, however, regulate a little bit on these grounds (e.g. „blinder-racks‟ in convenience stores). – Ct concludes that a state has a valid interest in preventing exposure of obscene material to consenting adults. The Court also makes a huge concession here – the Court does not require a showing by the state that obscenity leads to crime; a legislative judgment that it does is enough. 68

Child Pornography NY v. Ferber 1982 Class Discussion Notice that the Court here really takes an entirely different approach here from Miller. The allowance for prosecution of child porno is very broad. The reason for this is that, unlike with normal pornography, the major concern here is the protection of the children harmed in its production. The content of the speech is basically irrelevant to the analysis – thus it is almost as if the 1st Amendment doesn‟t even apply. Board Notes Miller Obscenity Test 1) Average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest 2) The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law 3) The work, taken as a whole, lacks serious literary, artistic, scientific, or political value 03/17/04 Neither obscenity (as defined by Miller) nor child pornography are protected by the 1st Amendment. Further, the Court largely considers the child pornography issue outside of the 1st Amendment, so there really is only the ban on obscenity (and the stuff we talked about before). Pornography is not a term of art; it is essentially sexually explicit speech, used for entertainment purposes, that does not rise to the level of obscenity. Declining Stevens approach in Young, the Court has decided that non-obscene sexually explicit speech is a fully-protected category of speech. Nevertheless, non-obscene sexually explicit speech can be regulated (not banned) to the extent that it has harmful secondary effects (Renton). Sexually Explicit Non-Obscene Speech American Booksellers Ass’n v. Hudnut 7th Cir. Court of Appeals (1986) Synopsis Indianapolis adopted a „scholarly‟ ordinance that bans pornography (sexually explicit imagery that subordinates women (or men) in a variety of ways). The court strikes this down. (McKinnon/Dworkin Ordinance) There is all kinds of material showing women in a sexually charged subordinated position and you throw in a little nudity you fall under McKinnon/Dworkin Ordinance. What legal argument against McKinnon Dworkin Ordinance does that create? (Overly broad. It sweeps in too much protected speech.) Concern also for vagueness. Doesn‟t define important terms: subordination, sexually explicit (mere nudity or sexual activity triggers?). 69

Class Discussion Notice that the ordinance is broader than Miller: it does not adopt the Miller „safe harbor‟ of artistic, literary, or scientific value, nor does it allow for relatively tame (non-obscene) imagery that may be loosely derogatory toward women. The ordinance is certainly overbroad; it covers obscene material but other material as well. Further, the ordinance is under-inclusive: something could be super explicit and obscene under Miller, but yet portray men and women as equals – this type of material would be permissible under the ordinance. This case is similar to RAV. Like the Court in RAV, this court isn‟t satisfied with invalidating the ordinance on overbreadth issues, and goes after the more complicated viewpoint issues as well. The court finds the ordinance to be thought-control and regulation that is based purely on viewpoint – imagery can portray women so long as it conforms to a particular view on their „rightful place‟ in sexual activity. The court also addresses the „lower value speech‟ issue – if we conclude that speech can be viewpointregulated solely because it is of lower value than things the majority finds unappealing will be considered of lower value.  Let’s grant this is bad stuff – there is lot of bad stuff out there & that is what the 1A is for – protecting stuff that is distasteful, that is where the protection is necessary o Allowing this kind of regulation is thought control What about harmful secondary effects – the court accepts, for the sake of argument, that pornography is connected to the incidence of rape and other crimes against women. The court responds that this actually cuts the other way – if pornography leads to rape and other crimes against women that merely shows how powerful pornography is as „speech.‟ Is this reconcilable with Renton, below? Somewhat – the cities in Renton were regulating the incidental affects of the speech; it attracted a particular crowd. Here, the city is attempting to regulate based on the secondary effects because of the causal connection (the „persuasiveness‟) between the porno and the effects. The state responds that it is not the kind of „speech‟ that can be directly responded too – pornography stimulates people at a subliminal level and is therefore somehow more insidious. The court dismisses this: there are many kinds of „speech‟ that are sub-rational and we cannot regulate those, for example, Nazi rallies reach under logic to tap into something more „primal.‟ However, Nazi speech can be „argued with‟ while pornography cannot.  Difference between overbreath & vagueness o No clear definition as to what prohibiting - vagueness o Know what statue is prohibiting & goes to far – over b  2 arguments made together in the alternative  Make argument to judge – I don’t think this lang is clear but assuming it is clear the language went too far  Also Easterbrook used the argument that the speech could cause perpetuate subordination illustrates it’s power as speech, and the cornerstone of our society is that our citizens have the absolute right to propagate opinions that our government finds wrongful or even hateful  Brandeis in Whitney – this isn’t about communication at all, people being exposed to ideas and pondering them. It is an unconscious process of desensitization. There is no opportunity for intermediation of reason or contemplation. This doesn’t work with Easterbrook because it’s like pernicious political ideas. 70

Nudity Bans Erznoznik v. Jacksonville- Avert your eyes rationale 1975 Synopsis City prohibited the showing of any movies in drive-in movie theaters that you could see from public places that showed nudity. The Court strikes down the regulation. Non-obscene expression. Unwilling viewer reasoning. The ordinance was not limited to nudity that was obscene for youths, and therefore the court struck the ordinance down as facially overbroad. Pattern Class Discussion The Court here uses the ‘avert your eyes’ reasoning. In Miller, the Court found the potential that someone would see obscenity to be a sufficient reason to prohibit, but not nudity. Erogenous Zoning These cases involve cities trying to control adult entertainment. The Court basically allows somewhat „incremental‟ restrictions on certain kinds of adult entertainment. Some important features of these cases: 1) It wasn‟t a complete ban 2) The cities were attempting to regulate based on the effects, not content, of the „speech‟ at issue a) By effects, the Court really means like incidental consequences b) Similar to time, place and manner restrictions (more on that later) Young v. American Mini Theaters 1976 Synopsis City zones adult theaters into particular areas. Regulated uses referred to 10 different kinds of establishments in addition to adult theaters. The Court affirms. Class Discussion Plurality - Stevens rationalizes that pornography is categorically less protected under the 1st Amendment – it‟s not as low as obscenity, but it is not like political speech. Thus, Stevens finds the regulation at issue to be moderate and well-focused (no vagueness issues), and the pornography to be of low value. Sexually explicit speech is lower value speech and doesn‟t get as much protection as other speech. The Court routinely decides the amount of protection that speech receives based on its content (fighting words, commercial speech). Court declines to see sexually-explicit, non-obscene speech is lower value than other speech. Powell‟s concurrence says this reasoning is inappropriate. Powell argues that it should be harmful secondary effects that permit such regulation. Powell asked: - Whether the ordinance imposed any content limitations on creators of adult movies or their abilities to make movies available to whomever they desired - Whether the ordinance significantly restricted the access to the movies by those who wished to see them 71

Renton v. Playtime Theatres, Inc. 1986 Synopsis City zones adult theaters into particular areas, passed zoning ordinances requiring them to be dispersed. The Court affirms. Erogenous zoning laws. City can restrict the location of adult businesses. Class Discussion The majority adopts Powell‟s position from Young – the Court rejects the Stevens‟ categorical approach, but allows the regulation of these businesses insofar as the regulations are targeting the secondary effects of such businesses. The Court would argue that this is content neutral regulation – you‟re not regulating the material but the effects. However, this is somewhat tenuous. Regulation of activity that only incidentally regulates speech is considered content-neutral, though it‟s tough to maintain that when the regulations are so targeted. Rationale for differences in Erznoznik and Renton – Allowance for regulation based on secondary effects. Court is lenient of the showing that must be made to show secondary effects. In Erznoznik, if they are confronted with a sexually explicit image, they can avert their eyes. Miller emphasized community standards. With non-obscene materials, the court is talking in Cohen terms. In Renton, something less important than communicating and responding is happening. When, as a secondary consequence of that activity, people start to sell drugs and engage in prostitution, it is beyond the zone of activity. A restriction on speech only imposed to the extent it forecloses criminal activity. In erogenous zoning cases, it is ok for the state to go against the speech for the indirect unwanted action. There is a difference between communicative causation and events that happen incidentally to speech.

Board Notes Grounds for Regulating Non-Obscene Sexually Explicit Speech 1) Erznoznik – Unwilling viewer: NO 2) Young – Categorically low value: a) Plurality: NO b) Stevens: YES 3) Renton – Harmful secondary effects: YES 4) Hudnut (7th Cir.) – Pornography subordinates women: NO 03/19/04 Everything that we‟ve looked at so far has involved relatively traditional modes of communication – things people buy, see and hear. However, a lot of the action in this area has come in attempted restrictions on the mass media. In Pacifica, the Court upholds a fairly substantially regulation on indecent speech over the airwaves. In Reno, the Court strikes down a broad internet regulation. The interesting thing is that Stevens writes both majority opinions in these cases. FCC v. Pacifica Foundation 1978 72

Synopsis George Carlin „Dirty Words‟ case. An FCC regulation prohibits certain kinds of „offensive‟ language over the daytime airwaves, after three warnings, the broadcaster has their license „reevaluated.‟ FCC claims to be empowered by a federal statute. We‟re talking about non-obscene, presumptively protected speech. The Court upholds the regulation and noted that the speech would be upheld if played at night (Channeling). Channeling restriction goes beyond the bar minimum exposure to protect children. (nonobscene, sexually explicit speech). Class Discussion A privacy issue distinguishes this from Erznoznik; people are unwilling viewers outside, but in their home they have a privacy right. However, in your home you have a much better ability to regulate what you see and hear. Children in particular watch a lot of TV and listen to radio – but the Court has long held that the government cannot reduce adult expression to the level of children. Stevens - Like the fighting words in Chaplinsky, this is speech that isn‟t particularly useful in the search for enlightenment. We should treat it as categorically less value, less protected speech. Also, radio is pervasive, it‟s everywhere. It‟s evasive, you turn it on and you‟re bombarded with scatological expression and there‟s nothing you can do about it. He also says that you don‟t have to say seven dirty words in order to convey that censorship is bad. However, Carlin is trying to startle and move people. Pacifica thinks it‟s a viewpoint-based regulation. TEST - Stevens applied a sliding scale test based on the speech‟s capacity to offend and on its social value, which varied with the context in which the speech was made. However, broadcasting (especially in the 1970s) is a limited resource. Things like books and movies are limitless – anyone can make them. Broadcast spectrum, on the other hand, is limited and is therefore more amenable to regulation. While that sounds convincing for the 1970s, what about modern times? Satellite and internet radio has changed any meaning that rationale had dramatically. Further, regulation over who gets to broadcast doesn‟t necessitate content regulation. When the government regulates the airwaves it is saying that the public owns the airwaves and the government wants there to be broadcasting. That‟s different then saying you cannot say this on air. Patently Offensive The regulation of dirty words in this case has a similar basis as the regulation of obscenity; the material at issue is just patently offensive. Is George Carlin‟s method here actually political? Couldn‟t Carlin‟s monologue be construed as poking fun at the FCC? Reno v. American Civil Liberties Union 1997 Synopsis The CDA bars knowing transmission to a minor of obscene or indecent material, and knowing display of patently offensive material where minors might get it. The Court strikes down the regulation. 73

Class Discussion Congress shot itself in the foot here. It never held hearings or anything on the internet, but merely borrowed language from an already struck down telephone regulation. The problems here are that the transmission restriction provides a heckler‟s veto to anyone in a chat room claiming to be with a minor, and the display restriction is an issue because virtually anyone can get information on the internet unless it is completely locked down. The CDA has a safe harbor for the use of credit card verification. But this is only helpful to commercial pornographers; the individuals out on the internet don‟t have access to credit card systems. Finally, the term indecent is held to be overbroad. The government relies on a case called NY v. Ferber, which held that if the government can make a showing that speech would be obscene from the point of view of a minor, then the government may pass regulation targeted at keeping that speech out of the hands of minors (think of the blinders on adult magazines). The Court rejects this; Ferber only limited access to the material, and adults could still chose to buy the material for minors. The CDA completely restricts the material, and adults cannot decide to give the material to their minors. The government then tries Renton; the CDA is like an erogenous zoning regulation. The Court rejects this. Renton, like Ginsburg v. NY (blinder rack for adult magazines – not obscene within the meaning of Miller, but are obscene when it comes to children,, and takes discretion on what parents allow their children to see), is an allowance for an incremental restriction but not a complete ban. The Court concludes that, as a practical matter, the CDA shuts down any internet publishers who cannot afford credit verification systems (criminal prohibition). Further, in Renton, the government was going after secondary effects, the CDA is not. This is a content-based regulation. The government finally tries Pacifica. The Court rejects this: unlike radio or TV, the internet is a type of free-floating medium without any control – it is more like publishing leaflets than broadcasting on the radio. The potential for ordinary people to communicate to large audiences is unprecedented; we should leave it alone. Invasiveness argument is absent here: you have to go to a website, not just get information when you log online. Broader argument about how the internet is a great thing and we shouldn‟t casually mess with it. 04/22/04 Commercial Speech Commercial speech receives a type of intermediate scrutiny. It is the only type of speech that the Court decides that, categorically, will receive intermediate scrutiny. The modern law is quite unsettled – the current justices on the Court have not been able to concretely resolve any of these issues. Valentine v. Chrestensen 1942 This is a classic older Court case – commercial speech used to get no protection. VA Pharmacy Board v. VA Citizens Consumer Council 74

1976 Synopsis The VA state board that regulates pharmacies puts a restriction on pharmacies that prohibits them from advertising the price of prescription drugs. The Court strikes this down. Tools Commercial Speech – Commercial speech does no more than propose a commercial transaction (i.e. advertising), it is not “all speech produced for profit.” Three Limitations for Protecting Commercial Speech 1) Free speech protection does not extend to advertisements for illegal transactions 2) Free speech protection does not extend to factually false or misleading advertisements 3) Commercial speech does not enjoy special procedural protections (e.g. the ban on prior restraint, overbreadth doctrine, etc.) Class Discussion The Court defines commercial speech relatively narrowly; it is speech that “does no more than propose a commercial transaction.” That is, essentially, advertising. Two big questions: 1) Why doesn‟t this sort of speech (price advertising) get full 1st Amendment protection? a) Objective Verifiability – Commercial speech is more objectively verifiable (truth or falsity) than traditionally protected speech (e.g. political speech). i) In our debates about government and politics, it is hard to „know‟ whether capitalism or socialism is better, but it is easy to know if Tostitos are really two for one. b) Hardiness – Commercial speech is hardier than other kinds of speech. The government may have an incentive to censor anti-governmental political speech, and therefore should be more carefully protected. Commercial speech is unlikely to be as related to the government and the government will therefore not attempt to regulate it so much, and the speakers have an economic motive to keep speaking. 2) Why does it receive any 1st Amendment protection? a) Notice that it is consumers (not pharmacists) who are bringing this challenge. This is a major ground for the Court in this case: consumers of legal goods have a right to receive information. i) The Court essentially does not care about the speaker‟s interest in these cases. Why? (1) It seems to be that commercial speech doesn‟t have the same value to the speaker as traditional political or philosophical speech. It is more the interests of the consumers and the market as a whole that concerns the Court. b) Price advertising contributes to economic efficiency – having consumers aware of the market price for legal goods leads to fairer prices. Restrictions deny consumer of their options, and we want the first amendment to prevent the government from interfering in the efficient allocation of resources. i) Court isn‟t concerned with speakers right to speak, but the speakers means to an end. Why would the government ever want to regulate commercial speech? Certainly, if the speech is proposing an illegal transaction or if the speech is factually false or misleading, the government may want to (and can) regulate.


What is VA‟s basis for this regulation? VA is trying to use ignorance as a regulatory tool. VA asserts a public safety interest: it is attempting to stop price wars that will drive people to shop at discount drug shops and buy cheaper lower quality prescription drugs. The Court finds this to be paternalistic – the state is saying that what consumers don‟t know can hurt them, and that the state is going to force advertisers to withhold information to protect consumers from themselves. It‟s always better to have more speech. The answer to pernicious speech is yet more speech. Rehnquist‟s Dissent He analogizes this situation to Lochner – „commercial speech‟ should be understood as economic activity, not expression. Therefore, when the Court determines that commercial speech is protected in any way is a massive value judgment the Court should not make. The problem with this view is that such line drawing is impossible – while saying that commercial speech is not „speech‟ is easy, what happens when the pharmacists submit a document saying the law is wrong, and they include the forbidden prices in there? Suddenly, the prices become „speech.‟  Like RAV – on one hand 1A is concern is speech of the speaker but the other concern is we don’t want the gov to get in the habit of shooting down expression – that leads to bad things o Speech is special – even low value, when gov starts using speech as a lever for regulation there is inherent problem  Going to communication, ideas to institute policy rather than action  Can regulate action but can’t regulate speech  BIG UNDERLYING ELEMENT Central Hudson Gas v. Public Service Comm’n 1980 Synopsis Court invalidated Public Service Commission‟s prohibiting advertising by a public utility. Court says that you cannot prevent the utility from drumming up business in this way. Tools Commercial Speech - Expression related solely to the economic interests of its speaker and its audience (Overturned in later cases). This definition is a bad idea in the court‟s view because this definition encompasses maybe half of speech. Four-Part Analysis to Determine if Commercial Speech can be Restricted (Don‟t want all commercial speech protected because it could dilute protection for traditionally protected speech). 1) Is the expression is protected by the 1st Amendment? a) Must concern lawful activity, and b) Must not be misleading 2) Is the asserted governmental interest in restriction substantial? 3) Does the regulation directly advance the asserted governmental interest? 4) Is the regulation not more extensive than necessary to serve that interest? a) Liquormart, below, interpreted this prong 3&4 trying to define means analysis & not saying anything much at all – need more than rational connection but not as much as strict  No really good way of saying this 76

Class Discussion The Court here briefly broadens the definition of commercial speech to include „any speech with any economic motive.‟ This definition is relatively disastrous as drastically too broad. Board Notes Subject to balancing Unprotected-----------------------------Less Protected------------------------------------Fully Protected -Fighting Words Commercial Speech -Hate Speech -Incitement -Non-obscene -Obscenity sexually explicit speech Central Hudson Test – A type of intermediate scrutiny 1) If commercial speech is truthful and not misleading, then: a) Government interest in suppressing the speech must be substantial b) Suppression must directly advance that substantial government interest c) Suppression must be not more extensive than necessary to achieve the substantial government interest Note the familiarity to intermediate scrutiny (substantial interests, and directly advance). Central Hudson test – people don‟t like but remain the law What‟s going on here – utility is trying to encourage people to use energy, gov saying don‟t do that want people to conserve. Ct says can‟t do that – like VA pharm  Think about it – is there a point where ads cross a line & become not speech but manipulation o If that is what is going on w/ ad then isn‟t there some justification for interrupting this – regulation becomes justifiable  Making same argument as in Hudnut case

03/24/04 Today we start trying to pin down the actual standard of review for First Amendment questions. The Court first determines if the speech is protected, if it is the Court then shifts its attention to the kind of government regulation that is at issue. The answer to that question is going to determine the standard of review, and that often determines the outcome of the case. The big issue is if the regulation is limiting or restricting speech based upon the content or viewpoint of the speech. Viewpoint based regulations are virtually per se invalid, content-based regulations tend to get strict scrutiny, and content neutral regulations get something else. Content-Based, Content-Neutral, and Viewpoint Regulations 1) Content-Neutral Regulations – A regulation that in some way limits speech (expression) but is not aimed or targeted at the content of the speech 2) Content-Based Regulations – A regulation that is targeted at the content of the speech a) Strict scrutiny; unlikely to survive but it may. Government must show a compelling interest and narrow tailoring. i) Important Exceptions from Strict Scrutiny 77

(1) Commercial Advertising – Gets the Central Hudson test, which is a species of intermediate scrutiny. (a) Remember, as a threshold matter, the commercial advertising must be truthful and non-misleading in order to qualify for the Central Hudson test (2) Speech on Certain Government Property – We‟ll talk more about this later. Generally: (a) If speech occurs in a recognized public forum the government cannot generally regulate (b) On the other hand, if speech place on non-public forum property (e.g. military base, prison, etc.) the government can typically regulate 3) Viewpoint Based Regulation – Regulates like a content-based regulation, but also restricts speech to or from a particular opinion or point of view. They are based on the government‟s antipathy for the view being expressed a) Usually per se invalid Why do we care? Content based regulations are troublesome as we don‟t want the government controlling what we can hear. They get strict scrutiny, but are not altogether too evil as it is only indicative of perhaps an overzealous government. Viewpoint based regulations are worse – the government effectively takes sides, and this is the early form of a totalitarian government. Problems with These Definitions: Rosenberger Rosenberger v. Univ. of VA. Synopsis VA has a university-granted student activities fund that is barred from funding any religious activity. The question was: To the extent that rule applies to student publication and expression, does that rule constitute a content based, content neutral, or viewpoint based regulation? Class Discussion There are several arguments: 1) Content Neutral – Sure; the rule isn‟t about speech – the rule just incidentally expresses speech a) This argument is a stretch: it is pretty clear that the regulation is directly constraining religious speech 2) Content Based – Sure; if student groups want to discuss religion, they cannot 3) Viewpoint Based – Sure; if student groups want to discuss a topic (other than religion) and need funding to do so, the religious viewpoint will not be represented Notice that whether the rule is content based or viewpoint based depends on what the subject matter of the expression is. If religion itself is the subject matter of the expression, then the rule is content based. If the religious groups want to expresses their viewpoints on another subject matter, then the rule is viewpoint based. Further, this distinction is critical. If a regulation is held content-neutral, it will probably survive. If a regulation is held content-based, it will almost surely be struck down. Content-Neutral Regulations and Symbolic Conduct US v. O’Brien 1968 78

Synopsis Δ burned his draft card in violation of the federal law saying not to do that. The Δ claimed that he was „protesting‟ the Vietnam War. From the standpoint of the protestors, it is an expression of their opposition to the War. The government argued that the draft cards are an important and integral part of the Selective Service system – draftees need them to be identified and kept track of. The Court upholds the government law. – When both speech and nonspeech elements are combined in the same conduct, sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations of 1A freedoms.  Said here – the possession requirement for a smooth functioning draft was sufficiently important gov interest which was unrelated to the suppression of free expression & no greater than essential to furtherance of interest Tools The O‟Brien Test (Species of intermediate scrutiny) – applies in cases of content-neutral regulations of speech Government regulation of symbolic conduct is valid if: 1) The regulation is within the constitutional power of the government 2) The regulation must further an important or substantial government interest 3) The (important or substantial) government interest must be unrelated to the suppression of free expression 4) The incidental restriction on any First Amendment freedoms must be no greater than is essential to the furtherance of the government‟s interest a) *Note this prong does not mean that the least restrictive means are required b) View this prong in standard means/ends intermediate scrutiny terms: i) There must be a substantial relation between the regulation (the “means”) and the government‟s important or substantial interest (the “ends”)

Class Discussion The third prong is actually the threshold question for this test to apply. If the government‟s interest is related to the regulation of speech, then it becomes a content based regulation, and the issue goes back into strict scrutiny land. For example, if the government in O‟Brien is really only worried about the breaking down of the Selective Service System, then the government passes the third prong. However, if the government is really just angry about this form of protest, then the government fails the third prong. “Intermediate Scrutiny” This case also presents the issue of what happens when the government and the „speaker‟ see activity differently? To the government, the activity is just neutral regulation. To the speaker, the activity is profound political speech. To address this concern, the Court creates the O‟Brien test – a type of intermediate scrutiny. Flag Desecration 79

Texas v. Johnson 1989 Synopsis Texas law prohibited flag burning, and the Δ was convicted of the crime. The Court strikes down the law. Class Discussion Is flag burning expressive conduct? Of course – this is actually very similar to O‟Brien. Yet the Court comes down the other way in Johnson. Why? There is no substantial government interest.  Conduct that is meant to express an idea also raises 1A concerns. Regulation could only be upheld if TX couls show an interest that was unrelated to the suppression of ideas. TX makes 2 arguments #1 - type of public safety thing (keeping the peace) – burning stuff is bad. This doesn‟t really fly; the regulation against flag burning isn‟t really based on that. #2 – TX argues national unity must be preserved. The Court believes that rationale, but finds that reason runs afoul of the third prong of O‟Brien: the government is clearly regulating to suppress the content of the expression. (core principle of 1A that gov may not prohibit expression of an idea just b/c it finds the idea disagreeable) Board Notes First Amendment Standards of Review for Regulations of Protected Speech 1) Viewpoint Based Regulations – Virtually per se invalid 2) Content-Based Regulations – Strict scrutiny a) Exceptions: i) Commercial advertising (Central Hudson test) ii) Speech involving government property (not a public forum) 3) Content-Neutral Regulations – O‟Brien test a) Symbolic conduct (O‟Brien) b) Time, place, manner regulations 03/26/03 Time, Place and Manner Regulations In the last class, we talked about symbolic conduct regulations – the government was merely (so they say) attempting to regulate conduct, and it „happens‟ to affect speech. Today we‟re discussing time, place and manner regulations. – Time Place & Manner Regulation: the government is openly regulating speech, but is claiming that it is not because the government wants to address the content, but merely the logistics of the speaking (e.g. it‟s too loud, it inconveniences the lives of people too much, etc.) o The basic rule is that the government can regulate in this area, but the regulations are subject to the O’Brien test. So long as all the government is doing is to accomplish something neutral (e.g. noise reduction). Next week, we‟re going to get the related topic of the public forum doctrine. That‟s relevant here, because in today‟s time, place and manner regulations involve government property. However, for 80

reasons we‟ll flesh out next week, the property being in today‟s cases does not really come under the public forum doctrine. Today‟s cases all involve facts the Court concludes are content-neutral, and then runs through the O‟Brien test. Are they content-neutral? Are the means/ends relationships the government asserts really sufficient to pass O‟Brien‟s intermediate scrutiny? Public Order and Safety Members of City of Council v. Taxpayers for Vincent 1984 Synopsis LA has a rule prohibiting the display of signs on public property. A group supporting a local political candidate put signs up on telephone polls. Pursuant to the ordinance, city workers removed signs attached to the telephone polls. The Court upholds the LA regulation. Class Discussion The Court here concludes that the O‟Brien test governs time, place and manner regulations. The Πs argue that they are trying to put up political signs, the city is denying them that right, this is therefore a classic First Amendment violation, and the Court should therefore apply strict scrutiny. The city argues that it is not at all targeting the speakers‟ message. The city claims their interest is aesthetic; the city doesn‟t care if the message in the signs is political, artistic, or commercial – the city only cares that the signs are visual clutter. Anyone who puts up any sign will be subject to this regulation – it just so happens that the restrictions of the regulation land on a political campaign. The Court agrees. The majority is just viewing it as merely a regulation that only restricts speech by a kind of „coincidence.‟ – As long as the state‟s interest is sufficiently substantial to justify the effect of an ordinance, and the effect is no greater than necessary, the state may restrict the posting of messages on public property o Said here the state had a justified interest in reducing visual clutter o Since numerous avenues existed for political speech it was not overly restrictive  Ct found the ordinance to be content-neutral Further, there are alternative forms of speech (though this kind of argument begs the question). Brennan‟s Dissent Brennan disagrees that this is a content-neutral regulation. Posted campaign signs are a classic and traditional tool of political campaigns. Brennan is focusing at the effect of the regulation; what is being restricted is core political speech. Further, many of the alternative forms of communication available may be cost prohibitive (e.g. TV campaigns). Brennan (and in modern times, Stevens) argues that the Court should be especially wary of regulations that may have a disproportionate effect on those who may not be able to afford alternative methods of speech – is the regulation only burdening those who can‟t afford other methods to speak? LA‟s regulation won‟t have much effect those who have lots of private property and money. However, many political dissidents might not have that kind of cash. The long term effect of the regulation is to disproportionately restrict the speech of the have-nots. 81

Clark v. Community for Creative Non-Violence 1984 Synopsis People protesting homelessness want to sleep in a Washington D.C. park right outside the White House. The park service denies the right to sleep in the park (they deny everyone the right to sleep in the park based on camping regulations). The Court upholds the regulation. Class Discussion The Court finds an important government interest in regulating camping. Further, the Court concludes that sleeping in the park doesn‟t further the goals of the protest – there are alternative methods of communication open. – Speech may be subject to reasonable, time, place and manner restrictions. o Assuming sleeping withing the context of this case constitutes expression, it is subject to reasonable time, place & manner restrictions  Application of the Park Service Regulation had nothing to do with the content of the expression – it was a restriction on the manner of expression & therefore does not violate 1A The dissent points out that the ability to sleep in the park is the heart of the protest. The same arguments from Vincent arise here.

Tranquility, Privacy and Repose Abortion Protest Board Notes Content Neutral Regulations: The O‟Brien Test 1) Regulation is within government‟s constitutional power 2) Regulation advances on important/substantial government interest a) What kind of government interest is legitimate? 3) Government interest is unrelated to suppression of speech a) Are time, place and manner regulations really unrelated to suppression of speech? 4) Regulation is no more restrictive than necessary a) Does or should the Court require use of the “least restrictive means”? 08/29/04 We‟ve been focusing on the rules that apply when the government seeks to limit protected speech. The first breakdown is between content-neutral, content-based, and viewpoint-based speech. We then focused on to content-neutral regulations with the O‟Brien test and time, place, and manner regulations. Notice that, in order for O‟Brien to apply at all, the regulation must be unrelated to the suppression of speech (see third-prong of O‟Brien). Further, the O‟Brien test is not particularly strict – the Court is fairly liberal in its approach. In reality, the means analysis under O‟Brien (“no more restrictive than necessary”) is closer to rational basis review (see Ward v. Rock Against Racism). 82

The Public Forum Doctrine Last class, the cases all involved government property that was somehow necessary for the speech at issue. This situation often involves the public forum doctrine – most sidewalks, streets, and parks are government property. Public property is particularly important for speech if the speaker doesn‟t have sufficient private property to speak from. Early on, the Court recognizes that the government has somewhat more authority to regulate speech on its own property than on the property of others. Surely the government is able to regulate speech more in a prison or military base than a person‟s house. As a consequence, the Court recognizes public forums – places „since time immemorial‟ have been dedicated to the dissemination of ideas; streets, sidewalks, and parks. Challenges arise, of course, at „middle-ground‟ type of areas. As we go, keep in mind Brennan‟s old complaints about the „have-nots.‟ Is the Court imposing the right degree of obligation on the government insofar as providing its property to allow speech? Perry Education Assn. v. Perry Local Educators’ Assn. 1983 Synopsis Local school teachers had a union – PEA. A competing union, PLEA, wanted to use the internal mailboxes within the school district. Of course, the mailboxes are school (government) property. The school district‟s rules only allow the incumbent union to use the mailboxes. The Court upholds the rule. – Justice White noted that policy implicated 1A, but “the existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending the character of the property at issue” o Character of the property is key!! Tools 1) „Traditional‟ Public Forums – Places that since „time immemorial‟ have been dedicated to expressive activity. Examples include streets, sidewalks, parks a) Content-based regulations get strict scrutiny b) Time, place, and manner regulations that are content-neutral get intermediate scrutiny under the O‟Brien test i) Quintessentaial public forums – gov may not prohibit all communicative activity (1) For state to enforce a content exclusion it MUST show that its regulation is necessary to serve a compelling state interest & it is narrowly drawn to achieve that end (2) May also enforce tpm regulations & content neutral regulations – must be narrowly tailored as to leave communication open 2) Designated Public Forum – Occur when the government specifically designates certain property for expressive purposes. Examples include a general notice board outside of a post office, or a similar board dedicated to posting real estate notices. (Gov. plaza that the government turns into a sidewalk). These receive the same analysis as traditional public forums, unless: a) Limited Purpose (Designated) Public Forum – Government can regulate speech in order to preserve the purpose of the forum. Open forum up for some particular expressive purpose. Subject to O‟Brien scrutiny. i) The government may not do this post facto. If the government opens a post it board for any kinds of notices and then disagrees with what‟s being posted, the government cannot go back 83

and claim that the board is really only for real estate notices unless the government can satisfy strict scrutiny. (1) In addition to TPM Reg, the state may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression b/c public officials oppose the speakers view (a) “The state has no less, than a private owner of property, has the power to preserve the property under its control for the use to which it was lawfully decided ii) While a government can close designated public forums, after being open for a long time, they may become traditional public forums. (1) Further, when closing designated public forums, the government is going to get more leniency if they have a good content-neutral reason (e.g. the board is blocking the police department‟s view of a high crime area). 3) Non-Public Forum – Government property that has not traditionally been open to expressive activity. Examples include government office buildings and prisons. a) Content-based and content-neutral regulations receive only rational basis review. b) However (important exception), viewpoint-based regulations still receive strict scrutiny. (Virtually per se invalid). 4) Non-Forum – (Forbes Case). In general, a public broadcasting station isn‟t a forum at all. Tantamount to private property. Particular niche in which we want the government to make autonomous, unconstrained decisions about what they‟re going to broadcast. If you are running a TV station, you make all kinds of viewpoint-based decisions. Class Discussion The Court here, via Justice White, develops a systematic categorical method to deal with different kinds of government property. Thus, when you‟re thinking about speech regulations, you need to go through two kinds of categorical analysis: what kind of speech regulation is it (i.e. content-based, -neutral, or viewpoint-based); and what kind of property is involved (e.g. traditional public forum, designated public forum, etc.)? Holding: Non-public forum - Policy does not favor a particular viewpoint - Not open for general public communication - Reasonable in light of purpose - Exclusion of rival may be considered a means of insuring labor-peace within the schools - Alternative channels remain open to union-teacher communication The Court concludes that if the mailboxes are public forums they are (at best) limited purpose public forums that have the sole purpose of discussing business related to the management of the school. This allows PLEA to be excluded from the mailboxes – they‟re outside of the purpose of forum. PLEA then argues that even if the mailboxes are not public forums at all, the district rule is viewpointbased discrimination. The Court disagrees – the regulation is based on status, not viewpoint. The reason the school district allows only incumbent union gets to use the mailboxes is not because the district agrees with their views, but because they are the incumbent union. Rival union are just outside agitators. – Implicit in non-public forum is the right to make distinctions in access on the basis of subject matter & speaker‟s identity o Decision to deny access is consistent w/ the school district‟s legitimate interest in “preserving the property for the use to which it was lawfully dedicated” 84

What else could White have done? - This IS government property that the government has opened up to speech by non-governmental purposes. - Just because the government has limited a communications infrastructure to a particular purpose doesn‟t make it a non-public forum. Seems more obvious to say that the education purpose validates limited purpose public forum. - White could have said limited purpose public forum, circulating educational information, but the regulation here is merely a regulation to preserve the purpose of the forum. He could have focused on the nature of the exclusion. Cornelius v. NAACP Legal Defense and Ed. Fund 1985 Synopsis CFC (combined federal campaign). Governmental employees encouraged to donate money to charities who are participants in the program. Litigation arm of NAACP is excluded from participating. The fund wants to take part in a federal fund raiser. A fund raiser rule excludes the litigation based „charities‟ from partaking. The Court upholds the restriction Class Discussion - Forum? o First argument by NAACP is that it is a limited purpose designated public forum. Court says no, that the government‟s policy has been to limit participation to “appropriate” voluntary agencies. Political advocacy is not appropriate. However, isn‟t this a value judgment by the government? How does religion define a viewpoint category and politics define a content category? - Minimize disruption to workplace from unlimited ad hoc solicitation activities. - Similar to the last case, this regulation really boarders on viewpoint regulation. Board Notes Public Forum Doctrine 1) Traditional Public Forum – Strict scrutiny of content-based regulations 2) Designated Public Forum – Same as Traditional, unless: a) Limited Purpose Public Forum – Government has greater latitude to restrict speech in order to preserve purpose of the forum 3) Non-Public Forum – Strict scrutiny applies only to viewpoint-based regulations 4) Non-Forum – A place where government business is going on; government property that is directly analogous to private property (e.g. where the President sleeps). The First Amendment basically does not apply – the President does not need to allow the Democratic Speaker of the House into his bedroom to speak. a) Here O‟Conner held that CFC was a non-public forum & applied reasonableness standard i) Control over a non-public forum can be based on subject matter & speaker identity as long as the distinctions drawn are reasonable in the light of the purpose served by the forum & are viewpoint neutral (1) Although a speaker may be excluded from a nonpublic forum if he wishes to address a topic not encompassed w/in the purpose of the forum or if he is not a member of the class 85

of speakers for whose especial benefit the forum was created the gov violates the 1A when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject ii) 1A does not demand unrestricted access to nonpublic forum just b/c that forum may be the most efficient means of delivering the speakers‟ message 03/31/04 The public forum doctrine determines when the government can regulate speech upon its own property. Essentially, when you have a traditionally recognized public forum, the government is largely restrained from speech regulation. On the other hand, when there is government property that is not a public forum, the government has greater latitude. Today, we discuss to what extent the government can maintain control of speech via funding for that speech. This is a very unsettled area of law. Ultimately, the Court has emphasized a variety of determinative factors. Speech Subsidized by Public Funds Considerations: - What is the government obligated to do? Does the government have some affirmative obligation to foster speech? - Content or viewpoint-based speech Regan v. Taxation with Representation of Washington 1983 Synopsis IRC § 501(c)(3) provides tax exemptions to certain charitable organizations – their dues are tax deductible and the organization doesn‟t pay tax on them. Congress disallowed these exemptions from lobbying organizations. TRW is a lobbying group. They bring suit claiming they‟re being treated differently than other similar organizations, and this is tantamount to taxing them for speaking – as soon as they speak (lobby), they‟re taxed. Class Discussion Right/Privilege Distinction The Court (Rehnquist) disagrees with TRW‟s interpretation. The Court considers the tax break a privilege, not a right. The government is not required to have the § 501(c)(3) tax break – it has merely chosen to do so and is now choosing only to distribute the benefit to „non-speaking‟ groups. Congress does not have to provide this benefit at all  Why do they still say that they are violating these rights? o Organizations are saying you are putting us to this choice – either enjoy your 1A rights or get a gov benefit. Once the government puts money up, do they have the prerogative to carve some speech out of the range of protected expression?  Remember the spending power – way back last semester … SD v. Dole, gov can’t impose unconst provision  Similar kind of problem conceptionally here w/ these cases 86

o Speakers here you are imposing an unconst provision on a grant  You are saying gov we will give you money if you forgoe your speech rights  That is why our 1A rts are being violated even if you aren’t expressly saying we can’t engage in lobbying  Reliance Interest: 501(c)(3)s will rely on the subsidies for their entire agenda. This holding undermines what the organization is trying to do.  Son of Sam law in NY- require criminal to turn over proceeds for book if they make profit on their crimes o Supreme ct strikes down law – gov is putting a tax on speech  Making speech cost something at least in some circumstances violates the 1A  Fact that we are talking about a gov subsidy makes a difference o Say that if you have to chose btw speech & gov subsidy that is ok o Gov is not discriminating based on view point – doing something discretionary  Made discretionary decision to give $$ away  When gov does that & says that you can only use $$ in a certain way they are merely controlling their own resources – Maj says that is ok Segregability Justice Blackmun agrees with the Court only because of an important underlying issue. § 501(c)(3) allows for organizations to split themselves into tax exempt and lobbying hemispheres (“segregable”), thereby creating a tax exempt part and a non-tax exempt part.  This is v. important going fwd o Ok w/ result going fwd b/c there is a way to segregate lobbying activities & non-lobbying activities o Some admin burden on the non-profits but basically everyone goes away happy in that situation  Way of targeting the $$ toward activities gov is comfortable funding & away from the lobbying Content-Based Notice that the restriction here is content-based. This parallels the public forum doctrine – the analogy is that the government is treating the lobbying floor as a non-public forum. The government would then be making a content-based decision that it does not want to fund any political lobbying.

FCC v. League of Women Voters 1984 Synopsis Federal statute says that public broadcasters who get government funding cannot editorialize. If they do editorialize, they lose their federal funding. The Court strikes down the regulation. Class Discussion Segregability Why is this different from Taxation, above? It turns on the segregability issue – broadcasters cannot segregate their political advocacy from their other content (e.g. start a whole other station just to broadcast editorials). Further, it makes no allowance for de minimis federal funding situations – even if a station only receives 1% of its funds from the government, it is still subject to this regulation. In this case, the regulated entity doesn‟t have an out. 87

Doctrine of Unconstitutional Conditions Gov. has power in Art. 1, Section 8 as a way to regulate behavior. Under North Dakota v. Dole, government is limited under the doctrine of unconstitutional conditions. Gov. can‟t use its spending power to create something unconstitutional. Here, the government is using subsidies, but the government is trying to use the subsidy as a way of achieving something that is unconstitutional, undermining the right to free speech. There is a free speech problem here, and the right to free speech is undermined because the activities in question can‟t be segregated. Therefore, the majority struck down that regulation. Right/Privilege Distinction In dissent, Rehnquist vigorously argues that the right/privilege distinction should be what matters here. He considers this case indistinguishable from Taxation. Content-Based In both this case and in Taxation, the restrictions are content-based. Notice the parallel to the public forum doctrine – the government is really treating the forums as non-public forums; the government is arguing that they do not want to fund any political advocacy. Hurting the Poor Another issue, similar to the public forum, is that if the government may easily restrict funds as a way of „influencing‟ speech, then the poorest speakers would be hurt most. NBC can probably do without government funding, and can therefore editorialize as it wishes using its own funds. However, the more nominal and less wealthy groups may need government funding to speak at all. Rust v. Sullivan – abortion gag rule case 1991 Synopsis Government regulation states that medical service providers who are getting federal funding cannot discuss abortion with their patients. Doctors sue, claiming that they are being denied the right to speak about abortion. The Court upholds the regulation. Class Discussion Segregability The Court, via Rehnquist, focuses on the segregability issue, claiming this case is much like Taxation. Here, the activities are segregable. You simply can‟t use government subsidies for abortion counseling, but we‟ll give you money for other pregnancy counseling. Government as Patron vs. Government as Speaker Viewpoint Discrimination In dissent, Blackmun argues that unlike Taxation and League (which were content-based), Rust involves viewpoint regulation – federal funding will not go to medical service providers who may feel that abortion is available and that it may be the right choice. Government is saying you can‟t counsel about abortion. Majority does not explicitly deny the viewpoint discrimination charge. Majority emphasizes that this is a matter about what the government chooses to fund. Perpetuation of Policy 88

Rehnquist responds by side-stepping the viewpoint issue and pointing to another difference – in the prior cases, the government was denying funding to autonomous third party speakers. In this case, the government is perpetuating a policy, and this moots the viewpoint discrimination issue. Government says that the issue is the government‟s interest in promoting some policies over others. The government was subsidizing not in order to foster expression by autonomous third parties, but to promote a direct government policy. The government is speaking, and those receiving the subsidy are essentially the government‟s mouthpiece. This decision may swallow up much of what is now considered to be free speech rights. Shouldn‟t the medical profession have autonomy? The government notes that this subsidy comes for a particular purpose. What if the government decides to pay for publications‟ activities if it is in financial straits in exchange for publishing government viewpoints. The government has merely determined that it has a policy, and it is going to use its influence to sway third parties to advance that policy. The government could surely fund an agency to distribute antiabortion materials – this (Rehnquist argues) is no different.

Legal Serv. Corp. v. Velazquez 2001 Synopsis Lawyers receiving federal funding through Legal Services Corporation are occasionally using the funds to challenge the constitutionality of certain congressional welfare laws. The government declares that this is not allowed. The Court strikes the government declaration. Class Discussion The government argues this is no different than Rust – the government is merely advancing a policy. The Court disagrees. There is no other avenue for advocacy that Congress seeks to restrict. This law insulates current welfare laws from constitutional scrutiny and other legal challenges. Viewpoint-Based Discrimination Justice Kennedy acknowledges that, in Rust, the court signed off on viewpoint-based regulation. It is an exception to the rule because the government is the speaker. Here, LSC is a private speaker so it is a viewpoint-based prohibition. LSC doesn‟t represent an effort to advance government policy, but to fund private speech (fund litigation of independent professions acting on behalf of their clients. Government as Patron/Speaker The Court feels that unlike Rust, where the government was the speaker and thus had more leeway, the government here is a patron, and is thus under more restriction. Further, the Court admits that Rust really did approve of viewpoint discrimination, and while this is allowed under certain (very particular) circumstances (like in Rust), the Court is going to tightly circumscribe this governmental ability. Viewpoint discrimination is allowed where the government itself is the speaker or, like Rust, where the government used private speakers to transmit information pertaining to its own program. Here, the attorney advice to clients is not government speech. Drawing the line in the sand saying that, where the government is patron, viewpoint-based discrimination is prohibited. Board Notes Case Taxation Subsidized Activity Segregable? Y Government As: Patron 89 Type of Regulation Content Upheld? Y

League Rust Velasquez 03/31/04 Discussed Review Problem II


Patron Speaker Patron

Content (Viewpoint) Viewpoint


Apply each statute to the billboards one at a time – Obscenity Statute “Obscene material may include any material that depicts or describes abnormal sexual activity” 1) Can the Hedonist Party be prosecuted under this statute? a) Apply the three-prong Miller test: i) Prong 1 – The average person, applying contemporary community standards, will find that the work taken as a whole applies to the prurient interest (1) Hedonists – The billboards do not appeal to the “prurient interest,” they‟re disgusting. They are meant to protest the government, not arouse people (this, of course, probably isn‟t true – the Hedonist Party likely thinks these are arousing). They might win on this argument (2) Government – They do appeal to the “prurient interest,” many would find this material arousing. (3) Hedonists – Either way, the signs “taken as a whole” are political messages (4) Government – The images overwhelm the political messages (a) Not clear how this one would come out…both sides have good arguments ii) Prong 2 – The work must depict or describe, in a patently offensive way, sexually conduct specifically defined by the applicable state law (1) Hedonists – Miller does not create its own cause of action, but merely allows states to do so. The statute describes only “abnormal sexual activity.” Thus, the statute does not “specifically define” the material on the signs (rape, bestiality, group sex). The Hedonists would likely prevail here. (2) Government – Whatever “abnormal sexual activity” means, it is sure encompassed by „rape, bestiality, and group sex.‟ Probably true, but this is a weak argument. (a) Make sure to talk about patently offensive – in the context of an exam question you may not be able to do that much w/ it but put it in there (whatever is or is not meant by patently offensive I‟m sure the court meant stuff like this) (i) Go after the language in the statute – say this langue as described here… iii) Prong 3 – (The safe harbor) – The work, taken as a whole, does not have serious political, artistic, scientific, or literary value. (affirmative defense argument worked into miller) (1) Hedonists – Even if the government prevails on the first two prongs, the signs have serious political value. (a) In order to sustain a obscenity conviction you have to take the work as a whole – can‟t ignore the political slogan, have to take it along w/ the sexual imagery


(2) Government – Get real; these signs are completely valueless. Even if protest of sexual mores has serious value, these signs are just extreme. The government would probably lose here; courts are just not going to make this kind of judgment. (a) State is going to argue that don‟t have SERIOUS political value (i) Going to have tough time – going back to Cohen you should be able to say the political 1. But political messages don‟t include change outside the process a. Destroy the gov now! – it is a crude call to go trash things i. Again though it‟s probably not going to fly ii. Have to pay attention to the serious – court is going to be reluctant to make value judgments about political messages (3) Bottom line here – if the state gets through the 1st 2 Miller prongs it will lose on this one iv) In this analysis you are figuring out whether or not the speech is protected & can be prosecuted under this statute (1) b/c NO you have a 1A objection to the prosecution (2) by prosecuting under this statute the state wants to do an run around 1A Violent Pornography Statute “Violent porn is any sexually explicit depiction or description of a sexual act that involves physical aggression or coercion.” 1) No unprotected category of speech called violent porn – so we are not doing the same kind of analysis to see if it fits into a category of unprotected speech a) Talking about how to assess a regulation of protected speech – tiered means/ends review i) Speech in question is protected & the statute is going after protected speech ii) Once you determine speech is protected – prosecution/regulation is subject to good old means/ends balancing analysis (1) So now have to see what kind of regulation is this & what scrutiny is applied? (a) Here – not talking about public forum so straight state censorship (b) Do have to worry about what kind of regulation this is – viewpoint? Content-based? Content-neutral? (important line is content based/content neutral) 2) Can the Hedonist Party be prosecuted under this statute? (*Two Notes: First, the Violent Porn Statute does not implicate obscenity, thus don‟t involve material from that test. Second, this does not implicate the erogenous zoning cases, which developed before (but are more like) time, place, and manner regulations). a) Hedonists – Argue that Hudnut (the Dworkin/McKinnon Ordinance) controls, and the ordinance is an example of viewpoint discrimination. i) Government – Unlike Hudnut (where the statute talked about dominance and subordination) this statute is not viewpoint based, but content-based. The statute is does not advocate a particular viewpoint, but simply bars the content of violence and coercion in porn. The government will probably win this, but the ordinance is clearly content-based. (1) Good argument that there is a viewpoint regulation but not that important here b) As a content-based regulation, (that isn‟t commercial speech and doesn‟t involve the public forum) apply strict scrutiny i) Want to show that it is not a TPM Reg – state is saying what these billboards depict is appalling & we are going to prosecute you for putting them up ii) Is the regulation drafting to serve a compelling government interest? (1) Rape prevention (2) Preventing psychological trauma to rape victims 91

iii) If so, is the regulation the least restrictive means (i.e. narrowly tailored) to serve that compelling interest? (violation of the right is necessary to accomplish the gov interest) (1) Rape prevention – porn bears a causal connection between – no question there is a compelling interest, question comes down to the compelling interest here (a) Hedonists – There isn‟t a casual connection between the billboards and rape. Even if there is a connection, there are other, less broad, methods to prevent rape (i) Old line – cure for bad speech is more speech 1. Defense – the best way & least restrictive way to go after rape is not to take down billboards a. State can do public campaign, give $$ to police b. More plausal distance you have it is more likely that you have another/less restrictive way of accomplishing the governmental interest (2) Preventing psychological trauma to rape victims – question here is, is this a compelling interest at all? (a) Hedonists – The victims can avert their eyes. (b) Government – While the Hedonists would normally be correct on this argument, the avert their eyes argument is particularly weak here – in this rare situation, the immediacy of the affect of the image is the harm, averting the eyes after the fact is too late (c) Hedonists – But allowing the government this kind of rationale would open up a big can of worms. The government might just win here. (i) Once you decide that the gov has a compelling interest removing interest would further that interest (ii) restrictive way to Violence Against the Government Statute “Any incitement to violent action against the state or federal government” is prohibited. 1) Can the Hedonist Party be prosecuted under this statute? a) Apply the Incitement Test from Brandenburg i) The government is likely to lose here – there really is just no immediate incitement to violence (1) Imminence almost always requires speaking to people in immediate proximity (2) As long as the message leaves time to think, there is no basis to litigate incitement 04/02/04 Categorical Doctrines – strong medicine when a regulation is invalid because of overbreadth, prior restraint, and vagueness. First Amendment mode of analysis: We started talking about entire categories of speech that is excluded from First Amendment protection. Lately, we‟ve been talking about what happens when the government tries to restrict protected speech. Generally, we‟ve seen balancing tests of some variety for these regulations – the government has some latitude for regulating protected speech – with the big focus on content-based, content-neutral or viewpoint based. Giving the government Today, we‟re talking about some methods of government regulation that the Court outright forbids – regardless of whether the regulation is content-based, content-neutral, or viewpoint based. However, even here we see a kind of balancing test – it determining what constitutes an overbroad (or vague, etc), the Court always balances the import of the Court‟s establishing an overbroad (or vague, etc) analysis 92

against the government‟s ability to regulate. On one hand, the Court is worried about chilling effects, on the other, the Court is worried about shackling governmental power. Next up we talk about rights that are related/similar to free speech – the rights to free association and not to speak, and the right of freedom of the press. After that, we go into the religion clauses of the First Amendment. Overbreadth (allows for facial challenges to speech restrictions) Recall the concurring approaches from RAV. The RAV majority assumed that the state regulation at issue only regulated fighting words and then moved on to the more complicated analysis. The concurring justices would note have gone through the complicated analysis the majority did – they would have merely concluded the regulation was overbroad. Exception to the Ordinary Rules of Standing Note that the specific conduct in RAV (i.e. burning a cross on a black family‟s lawn) was likely fighting words, regardless of if the statute would also encompass non-fighting words. Why should the Δ, who‟s behavior could likely have been regulated if the statute was just drafted better, be able to challenge the regulation? This is a major distinction with First Amendment overbreadth analysis and Equal Protection overbreadth analysis – generally (and under Equal Protection), to challenge a regulation the Π needs to be personally injured (i.e. they must have standing). Under the First Amendment, this almost universal standing requirement is dismissed. Even those who could be properly regulated can bring a First Amendment overbreadth challenge. Why? The Court is concerned about a chilling effect. The Court is worried that the government will cause people to self-censor themselves – those who cannot properly be regulated will either not speak at all or won‟t sue when they do and are told not to. Ironically, a Π only needs overbreadth if their speech is being properly regulated. Why? If a Π is participating protected speech that the is being improperly burdened by the regulation (i.e. they would meet traditional „standing‟ requirements), the Π has a true First Amendment claim – overbreadth isn‟t required. This is actually good – because of the „substantial‟ requirement for overbreadth (see Broadrick, below), it is not easy to win on an overbreadth challenge. Broadrick v. OK - 1973 Synopsis: Oklahoma regulation restricted state employees from taking part in “political activity.” The Πs were involved in heavily partisan political campaigning. The Πs agreed that while it was okay to prohibit state employees from taking part in partisan fundraising (like what they were doing), but they argued that the regulation reached things like wearing campaign buttons and bumper stickers as well, and this was overbroad. The court upheld the statute, noting that the statute seeks to regulate political activity in an even-handed and neutral manner. Class Discussion – - Equal protection – Treat equally positioned people the same.



Notice that the people bringing this suit could probably be properly regulated under a more narrowly drawn statute. This is an example of why the Court allows the standing exception the First Amendment overbreadth test – if the Court didn‟t allow these folks to bring the suit, who would? The only people who would have standing would be those who shouldn‟t be regulated (e.g. those who wear the occasional campaign button, or put a bumper sticker on their car) but were (i.e. were told to take the button or the sticker off). Such people are unlikely to sue. Further, many who could have worn campaign buttons and bumper stickers probably would have chosen not to because of the regulation (i.e. a chilling effect), and they certainly couldn‟t sue. Concern that laws, even if they properly regulate speech to some extent, are overly broad, it will reach beyond the limited scope and sensor those who are not being regulated for fear that they may be punished. Why do the courts allow parties that aren‟t improperly regulated by statutes to bring claim? Underneath the overbreadth challenge there is a valid sub rts claim o We are talking about an underlying 1A concern that protected speech is being burdened  Not enough in this setting to just split the baby Breathing space – if a statute is overbroad in its restriction on speech then there is a sub harm being done & we want to make sure that doesn‟t happen o Ct says we are going to confer upon people‟s speech that is properly burdened o Going to create special opportunity for party who wouldn‟t be able to bring the claim  To increase the likelihood that people will bring these kinds of claim Chilling effect – people will engage in self censorship. They will be worried about doing something wrong so won‟t speak.




Substantial Overbreadth In order to get a statute invalidated as overbroad, the statute must be substantially overbroad. This requirement is very important – a finding of overbreadth results in facial invalidation of the statute; that is strong medicine. The court here did not define this term. The dissent notes that the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge. Vagueness (allows for facial challenges to vague laws) 5th Amendment context - Laws that impose criminal liability without giving adequate notice as to what conduct constitutes criminal liability 1st amendment context – usually criminal laws. If a law proscribes speech in an unclear way, the law can be struck down on its face.

While vagueness and overbreadth are often alleged at the same time, keep in mind they are different. A statute is overbroad if the scope of prohibition is clear, and it is clearly over-inclusive. A statute is vague if you don‟t know what the statute is saying. Court is not going to find a law unconstitutionally vague unless the court finds it opaque as to what it prohibits. The Fifth Amendment is understood to contain a principle that if the government is imposing criminal punishments on people, they have a right to notice of what conduct is barred. The First Amendment contains a similar rule. Similar to the Fifth Amendment, the concern is with notice. However, there is also a worry in the First Amendment that their will be a chilling effect. The remedy is the same as under overbreadth – if a statute is found to be vague, it is facially invalidated. 94

Prior Restraint While overbreadth and vagueness are concerned about a regulations scope, prior restraint deals with a regulations timing. Generally, the government may not prohibit speech before it happens; even if it would be okay to prohibit the speech after it occurred. If you don‟t let the speech get into discourse, they don‟t have the benefit of a potential public groundswell, needs to be the opportunity to resist the punishment after the fact. Forms of Prior Restraint - Licensing Requirements – Ok if it is done in an objective way. These become problematic when they aren‟t objective and neutral or if it is so unclear that t he government has room to manipulate who gets the permits and who doesn‟t. - Injunction – A straightforward prohibition on public speech (Pentagon Papers case)

Two common kinds of prior restraint problems: 1) Licensing Requirements – These aren‟t always bad; content-neutral licensing requirements are almost always okay. Problems occur, however, when: a) When it is a content-based requirement b) When it is a standardless requirement 2) Prior Injunctions – These are almost always bad (see Near, below) Near v. Minnesota 1931 Synopsis A magazine had published offensive speech. The government then barred the magazine from publishing any such speech again. New York Times Co. v. US (The Pentagon Papers Case) – look at my notes on the pentagon papers case & prior restraint 1971 Synopsis This time, the government new what the publisher was going to publish, and sought to stop the publication of the papers. Any system of prior restraints of expression comes to this court bearing a heavy presumption against its constitutional validity. Cases arise only when the nation is at war, during which time no one would question that a government might prevent actual obstruction of their wartime efforts. The press is protected by the first amendment so that it could bare the secrets of government and inform the people. Prior Restraint Theories - Speech interest - Strong argument that, in war time, protection of speech is more important than any other time because this is the time when the government has the strongest claim as to the allegiance of its citizens. - National Security interest - Also, in wartime, the strength of national security is in play. The courts give the government a lot of leeway as to the conduct of war. 95

The only time in which a prior restraint is legitimate is if the impact is severe, AKA putting troops in danger of life and limb. Once you draw the line, the case becomes easy to resolve because this is old, diplomatic information, not military strategy information. General concerns - Court is deciding that the proper standard should be putting troops in danger of life and limb. - Government wants injunctions for anything that compromises national security. Board Notes Impermissible Methods of Regulating Speech 1) Overbroad Regulation a) Overbreadth must be substantial b) May be raised even by a properly regulated party c) Chilling effect v. judicial overreaching 2) Vague Regulation a) Notice, chilling effect concerns 3) Prior Restraints a) Licensing requirement or injunction b) Concern that speech never enters public discourse 04/05/04 We are done with the „core‟ examination of First Amendment law. The next few days are about rights that are related or ancillary to the First Amendment. Today, we‟re talking about rights related to two First Amendment concepts: the right not to speak, and the right to freedom of association. These are not rights directly addressed by the text of the First amendment. What is the nature of the substantive expressive interests under which the implication is derived? These rights are not spelled out specifically from the text of the First Amendment, so the big question is how does the Court derive these rights? 1. Right not to speak 2. Right to Free Association The Right to be Free from Compelled Speech West VA State Board of Ed. v. Barnette 1943 Synopsis VA required students to salute the flag and recite the pledge of allegiance. Jehovah‟s Witnesses claimed this was counter to their religion, and that it would be compelled speech to make them do so. The Court agrees. Bringing free speech claim and right to free exercise of religion claim. Class Discussion The State argued that it was attempting to promote national unity. The Court rejected this: if an idea is right, it will prevail; the government should not shove patriotism on people. The Court concludes that if the First Amendment is about anything, it is about the notion that the government is not supposed to force orthodoxy on people. One can‟t preserve national unity through 96

constraints on people‟s freedom; it lends credence to faults in the system. The people who founded this country were not cowards. They had the courage of their convictions that would flourish under conditions of open public debate. Three Ways to Get from the Right to Speak to the Right Not to Speak 1) Right Not to Speak by „Necessary Implication‟ a) Notice that the Πs are not attempting to assert a right to speak, but a right not to speak. The Court concludes that the right to free speech necessarily entails the right not to speak – if the state can‟t prevent you from speaking, it mustn‟t be able to make you speak. 2) Right Not to Speak by Not-Speaking as Expression a) There is also the possibility that non-speech is often expression. This would mean that the First Amendment directly protects non-speech. However, in this case, the Court focuses more on the necessary implication rationale. 3) Right Not to Speak as Facilitation to the Right to Speak a) If the government can compel speakers to speak, then listeners never know if the speaker is speaking on his own behalf or is speaking for the government. This would mean that listeners would never know if speakers were genuine. Thus, if the government can compel speech, the right to free speech is undermined. If the government dictates what you say you can‟t say what you want to say. Essential Elements to a Compelled Speech Claim 1) The compulsion in question must be one to speech, not action. The government must be forcing you to express something in some way 2) There must be an interest of conscience; you must be getting compelled to say something you don‟t believe. (Wooley v. Maynard, the license plate “Live Free or Die” case) a) This results from an implicit Court behavior – if the speech the state is compelling you to say is mundane and not against any sort of deep belief you half, the Court seems to not feel that your speech interest is that substantial, deeply held conscientious beliefs (e.g. license plate says “Live Free or Die” versus “You‟ve Got a Friend in PA”). People are being compelled to say something substantial that they don‟t believe. Different expressive interest. The Right To Speak Anonymously McIntyre v. Ohio Elections Commission 1995 Synopsis Δs hand out political pamphlets without identifying herself. Ohio law requires her to do so. Ohio law limited to writings designed to influence an election (“core political speech”), and applies even if there is no hint of falsity or libel. Laws limiting core expression must be subject to exacting scrutiny. The Court strikes down the law. A state may not seek “to punish fraud indirectly, by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented.” Class Discussion The Court points to the historical importance of the anonymous political protest, as well as the facilitation of First Amendment right to speak, and the privacy interest within the First Amendment. Facilitation of the First Amendment Right to Speak 97

If you‟re forced to put your name on something, you may choose to not speak at all if you‟re an unpopular speaker. First Amendment Contains a Privacy Interest The price of participating in public discourse in this way shouldn‟t be giving out your name and address. NAACP v. Alabama 1958 Synopsis The NAACP (a corporation) is organizing a chapter in Alabama, and the state attempts to apply a law regarding non-state corporations and business practices to compel the NAACP to provide the state with a list of all of its members. The Court prohibits the state from doing this. Class Discussion The NAACP is attempting to engage in core First Amendment activity (political advocacy). But the state is not necessarily attempting to bar speech; it is merely interfering with the NAACP‟s ability to organize – thus (the state argues) this isn‟t really a First Amendment claim. The Court disagrees. The organization has an interest in growing its membership and pursuing its goals. Right to Associative Expression Association is valuable for expression. There has to be a weighty expressive interest here. Advancing the goals of the civil rights movement is a weighty political interest. You need to have an expressive interest at stake in order for us to care about association under the 1st Amendment. (Dallas v. Stanglin: Dancing is not getting together to advance some ideal). Direct Instance Sense in which not disclosing your membership is freedom from compelled expression. Facilitation The Court again relies on facilitation reasoning in relating the NAACP‟s claim to a First Amendment issue: The state cannot do something to speakers that will strongly discourage those speakers from speaking. In order to avail themselves of the right to free speech, the NAACP members must be able to gather together collectively. Limits The Court has limited this case to apply to political advocacy – for example, this case wouldn‟t likely apply to invalidate a state law that discourages clubs from gathering together for social dancing. NAACP v. Button 1963 Synopsis Virginia law bans “solicitation of litigation by an organization with no pecuniary interest in the action.” The state uses this law to target the NAACP, attempting to stop them from soliciting black parents to sue their schools and compel integration. The Court strikes down the law. Class Discussion The state argues this isn‟t a First Amendment case; the state has merely restricted litigation. 98

The Court disagrees. In this situation, the NAACP‟s form of advocacy is litigation. The litigation itself is the political advocacy. The state law therefore restricts the NAACP‟s right to engage in a core First Amendment activity – political advocacy through litigation. Pecuniary interest is non-exclusive, and the interest is entirely beside the point. The right to free speech doesn‟t just protect right to express an idea in the abstract. In this case, the NAACP is advancing its ideas through litigation. Keyshian v. Board of Regents Synopsis State law required school professors to take an oath claiming they support the US government and have never been a Communist. Class Discussion The Court demonstrates both a freedom from compelled speech rationale (based on the above logic) and a freedom of association/chilling effect rationale (group membership shouldn‟t become a basis for job termination) Board Notes Rights Related/Ancillary to Free Speech 1) 2) 3) 4) 5) Freedom from compelled speech (Barnette) Right to speak anonymously (McIntyre) Right to associate free from disclosure (NAACP v. Alabama) Right to associate for political advocacy (NAACP v. Button) Freedom from loyalty oaths (Keyshian)

04/07/04 Campaign Finance This is a very complicated First Amendment area. Buckley, below, establishes some of the fundamental rules. Typically, per curiam opinions (which express the opinion of „the Court‟ as opposed to any particular Justice) are short and non-controversial. Buckley is huge and complicated.
[The fundamental clash of expressive interests remains the same as in other expressive access cases: proponents of limits on political money seek to secure access to political discourse for underfinanced speakers, while opponents seek to preserve the expressive autonomy of speakers who possess the means to spend money. In this area the Court again has rejected the notion of a First Amendment access interest and has strongly vindicated the expressive autonomy of property holders--parties, candidates, and “independent” entities with enough money to influence electoral debate]

Campaign finance: Buckley - Upheld o Disclosure Requirement o Public Financing o Contribution Limits - Struck down o Expenditure Limits  Independent 99

  Buckley v. Valeo 1976

Candidate/campaign Self-financing

Synopsis Congress enacted the Federal Election Campaign Act of 1971 (FECA), and its amendments in 1974. Class Discussion Money is Speech The Court of Appeals held this was a content-neutral regulation (Congress is regulating spending money (conduct – like burning draft cards), not speech), and therefore O‟Brien controlled. The Supreme Court disagreed. The Court held that the use of money in campaigns directly translates to speech – according to the Court, money is speech. The use of money in politics is a direct way of engaging in public discourse. Further, the Court concludes that even if money wasn‟t speech, the FECA targets speech. This targeting means that even if O‟Brien could apply, the FECA fails the third-prong of O‟Brien. The Court therefore rejects the use of the O‟Brien test. Technically, this means that strict scrutiny applies. However, in Nixon v. Shrink (2000), the Court concludes that in Buckley it applied strict scrutiny to expenditure limits and „something less‟ to contribution limits. Requiring disclosure of the names of contributors - Not NAACP v. Alabama – no worries about reprisal - Strong government interest in determining where contributions are coming from - Brown v. Socialist Workers – Maybe in some cases revealing your contributor list would cause the problems of NAACP v. Alabama Partial Voluntary Public Financing for Presidential Campaigns - Public financing is ok unless the government forces the candidates to take it Contribution Limitations - OK For federal elections, FECA limited individual contributions to $1k per election cycle per candidate, and $25k total. The Πs argued that this was an unacceptable limitation on political speech. The Court agrees that contributing money is expressive – when you give money, you‟re saying that you support the candidate. However, the Court concludes the speech interests aren‟t that strong: 1) Once you express your support, how much money you give doesn‟t say much more. Giving $10 says you support, giving $4k says you support. Thus, while total prohibitions would be wrong, limits aren‟t bad. Limited because making the contribution makes the statement. Adding large amounts of money is only incrementally making a higher statement. 2) Contributions are only speech by proxy – when you contribute, the money just goes into a pot. It would be different if you paid money and got an immediate speech result, but that doesn‟t happen. 3) The limits are not so low as to make it impossible to raise political funds 100

4) Contributions don‟t automatically translate into political debate. The candidate has to pool the contributions and actually do something with them. Thus, campaign contributions are speech. But – they are of marginal political value, and the federal interest in regulating actual/apparent corruption outweighs their value. Government is concerned about the appearance of corruption and people losing faith in the political system. Also, government doesn‟t want one party bankrolling an entire political campaign. Actual/Apparent Corruption The only interest the Court ends up recognizing in Buckley as strong enough to justify some regulation of campaign finance is the interest in eliminating actual or apparent corruption. That means that nearly every campaign finance regulation since Buckley that has been upheld has been based on that. What‟s interesting, and a huge holding in Buckley, is that apparent corruption is a legitimate rationale for the regulation of campaign finance. That leaves significant congressional wiggle room, and there is no requirement that Congress demonstrate the public perception of corruption. Expenditure Limitations – Struck down (Present a much stronger 1st Amendment interest) The Court holds expenditures to be different from contributions. The Court considers this the „flip-side‟ of the speech by proxy argument. Expenditures are direct purchases of speech. The FECA limits expenditures in three ways: 1) Independent Expenditures – uncoordinated expenditures by independent parties (e.g. you, me, GM, etc.) to support a candidate (e.g. without his permission, you buy a TV add for John Kerry). Further, „coordinated independent expenditures‟ (in which an individual approaches a candidate and offers to buy TV time directly), are considered contributions. a) FECA limited this to $1k b) Why is this different than a $1k contribution limit (which was upheld)? i) First, $1k contributions can be helpful; when many people make them, the candidate can do something with them (1) Candidates can‟t do anything with the $1k you spend. ii) Second, Congress has made it nearly impossible to make expenditures to support a candidate. $1k buys about half a second of TV time on NBC. c) Governmental Interest in avoiding corruption struck down i) If you spend money after consulting with the campaign, that‟s coordination with the campaign, treated as a contribution. If you are spending money on your own, there isn‟t a danger of corruption with candidate because you‟re not working with the candidate. ii) However, it seems likely that someone who spends a ton of money to advance a candidate but not coordinated with that candidate would still influence the candidate in his campaign. 2) Campaign Expenditures – Expenditures by the candidate‟s campaign a) The Court rejects 3) Personal Candidate Expenditures – Expenditures by the candidate‟s personal (or family) wealth a) The Court rejects Equalization Rationale The Court rejects the notion that the government has a legitimate interest in attempting equalize political powers via spending limits. It seems like the government would be selectively favoring certain speakers over others. How expressive opportunities should and may be allocated. How do you get that platform to get your ideas across? Anti-regulation – 1sty amendment is about letting expressive opportunities fall 101

as they may. Pro-Regulation – it isn‟t all about the market. The government should be able to counter the market to determine the distribution of expressive opportunities. McCain v. Feingold 2004 Class Discussion Closes „soft money‟ and „issue ad‟ loop-holes.

Board Notes Campaign Finance: Buckley v. Valeo 1) Contribution Limits – Upheld a) Actual/Apparent Corruption Rationale 2) Expenditure Limits – Struck Down a) Independent Expenditures b) Spending by campaigns c) Self-Financing Other Buckley Holdings 1) Contributor Disclosure Requirements – Upheld a) The FECA required disclosure of contributors of more than $10, and was upheld in the face of a challenge based on NAACP v. Alabama (giving a campaign contribution is typically not as bold and daring of a statement as joining the NAACP in Alabama in the 1950s). i) If a particular political party can demonstrate that its contributors have good reason to expect reprisals, a court can issue an order allowing the party to ignore this requirement 2) Public Financing of Presidential Campaigns – Upheld a) Under FECA, presidential candidates can agree to receive (a lot of) public money so long as they agree to restrictions on other methods of fund-raising 04/12/04 Freedom of the Press: When the Press Can Demand Info from the Government, and Vice Versa Freedom of the press is unique. Unlike freedom of assembly, freedom not to speak, etc., all must be derived from the Free Speech Clause. Freedom of the Press is specifically provided for in the Constitution. Today‟s focus is on printed media – newspapers. The focus for next class will be mass media – TV etc. What is “the press”? What distinguishes it from any other speaker? The “press” has two definitions: 1) Functional Definition – The press gathers and disseminates information to the public for the purpose of informing the public 102

2) Descriptive Definition – Anyone engaged in the behavior described in the functional definition What rights should the press have based on its special role for gathering and disseminating information? - Many – One argument is that the press has a special public trust, and therefore should receive special First Amendment protection – the press has a special and necessary place in our society, it informs the public of what is going on, and this is crucial to our democratic society. - Few – The counter-argument is that the press doesn‟t serve any kind of “public trust”; they are businesses, and will do whatever is necessary to make a profit. The press doesn‟t operate under any kind of special moral scheme; they‟re just „in the business‟ of gathering information Two major questions: 1) Press Access to Government Information – Does the First Amendment provide any special access to the press to obtain information held by the government? a) Note the similarity of this question to the Pentagon Papers case, above. However, in that case, the press already had the information, and the government was trying to stop its publication. b) “Free Speech/Fair Trial” Cases – The concern is often which interest prevails 2) Government Access to Press Information – May the government compel information from the press? Gannett Co. v. DePasquale 1979 Synopsis Judge closed a pretrial hearing on the suppression of evidence in a murder case. A newspaper challenged, and the Court upheld the judge‟s order. Class Discussion The press and the public have no independent constitutional right to insist upon access to pretrial proceedings when the accused, the prosecutor, and the trial judge all had agreed to close the hearing in order to assure a fair trial. Richmond Newspapers, Inc. v. Virginia 1980 Synopsis Δ requested his murder trial be closed, the prosecutor didn‟t object. The judge made no explicit findings, nor investigated any alternative solutions to ensure fairness, but merely agreed and ordered the trial closed. The Court struck down the order. Class Discussion In criminal trials, the press has a presumptive First Amendment right of access to criminal trials, even when the accused, the prosecutor, and the trial judge want the press barred. Why? How is this different from Gannett? Pretrial hearings are significantly different than actual trials. Thus, openness must be presumed, and the judge must explain a good rationale for closing the trial. Related Question Under the current law, the government may close deportation decisions completely with no ability to review. Richmond Newspapers creates a balancing test – does the current government interest in closing the trial outweigh the Δ‟s fair trial interests. 103

Branzburg v. Hayes 1972 Synopsis Reporters were investigating (very likely) criminal activity. The government subpoenas the reporters to testify before the Grand Jury in order to compel the information they have obtained. The reporters claim their sources are confidential, and they therefore do not have to testify. The reporters are held in contempt. The Court agrees. Class Discussion The reporters in Branzburg are requesting a presumptive privilege that will protect their knowledge unless the government meets a very high standard to show the government needs the information. In Richmond Newspapers, the Court really had a tone of “the press is special.” In Branzburg, the Court takes the opposite view – the press isn‟t special, it‟s like anyone else. When someone gets subpoenaed, they have to go and talk, that‟s it. The reporters contended that this is going to cause „confidential informants‟ to go away; they‟re never going to tell reporters anything again. The Court holds this, while debatably true, is simply outweighed by law enforcement interests. (Of course, this ignores the reality that if the informants stop telling reporters stuff, then there is nothing for law enforcement to subpoena). Powell‟s Concurrence Powell‟s concurrence has had a great effect. He seizes on some passing words in the majority opinion and institutes a balancing test limiting the Court‟s holding. Thus, Branzburg has been kinder to media interests than had been suspected. Board Notes Freedom of the Press 1) Is “freedom of the press” different from “freedom of speech”? a) How? Why? 2) To what extent does the First Amendment allow the press to demand information from the government? 3) To what extent does the First Amendment protect the press from government demands for information? 04/14/04 Differential Regulation of the Broadcast Media (Media Access Cases) Today we‟re talking about the regulation of TV. It extends our Freedom of the Press conversation from last class. Last class, we questioned whether the press (via the newspapers) was „special‟ – if it had some kind of special First Amendment protection. In Richmond Newspapers, the Court gave the press some „specialness,‟ while in Branzburg the Court seemed to deny any kind of special public trust. Unlike the old newspaper market, the broadcast TV market is very expensive to enter. The result is that instead of „serving the people‟ like the newspapers did, it is much more possible to „dominate the 104

people.‟ Ownership of media outlets begin to consolidate; there‟s a relatively small number of wealthy parties controlling the media. This changes the function of the „public trust‟ concept. Newspapers used the „public trust‟ argument to gain special treatment. In today‟s cases, people are attacking the media demanding access, and the „public trust‟ concept is used to argue that the media must grant some measure of access to people who want to disseminate their message. Thus, the „public trust‟ has become a weapon of the government and people who want access to broadcast media outlets. Keep your eye open for echoes of the public forum doctrine; where the question was if the government could retain control over areas that could be used for expression. The same could be asked of these broadcast access – can the station owners retain such control. Also notice the similarities between the campaign finance cases (particularly Buckley). In those cases, the government was arguing that there must be greater equality in campaigning, while wealthy campaigners contended that they should be able to speak how they wish. The same could be said about the station owners in these cases. In these cases, the media entities are trying to protect themselves from the public‟s demands to access to channels of communication. We‟re in the context of the media era where mass communications are more expensive, and smaller players want to get their message out. Red Lion Broadcasting Co. v. FCC 1969 Synopsis FCC‟s fairness doctrine was an „equal time provision‟ that required broadcasters who presented one side of a political issue to present an equal amount of time to the other side. Red Lion Broadcasting argued that this violates their First Amendment rights by compelling them to speech. The Court upholds the doctrine. Class Discussion The First Amendment claim is the broadcasters saying that the government is violating our right to expressive autonomy by telling us what to broadcast. Isn‟t the fairness doctrine telling broadcasters what they can broadcast? Isn‟t it compelling them to speak? Yes. But in upholding the regulation, the Court points to the technological scarcity of broadcast spectrum. This is the entire basis of differential broadcast regulation – when broadcasters just transmit whenever they want, the frequency spectrum would just be a disaster: like roads without traffic lights. Because of this scarcity, those who are granted broadcast licenses are exercising a privilege – those who get to use broadcast frequencies have an obligation to do something for the public good. Thus, there are two intertwined strands of reasoning in this case: 1) The notion that technological scarcity justifies regulation 2) Getting to use the broadcast spectrum carries with it a public duty (i.e. implies a „public trust‟) Access Paradox: Now, the people who want access to the broadcast airwaves is saying that there should be a limitation on the press‟ expressive autonomy because the press has a public trust, and should advance the public interest. Now, the broadcasting industry wants the court to focus in the broadcasters as a speaker whose autonomy should be protected. 105

The government feels like the radio is an important medium, able to reach massive numbers of people quickly, and there are only a few companies with access. The government wants to ensure that this incredibly important medium benefits the public interest.
[The circumstances of the broadcast industry limited the First Amendment's protection of broadcasters' expressive autonomy. That holding rested on two interlaced features of broadcasting that justified regulation of the industry. First, Justice White suggested that the public's interest in robust debate animated the development of the airwaves and thus logically preceded broadcasters' autonomy interest. Second, in an argument that echoes the direct attribution of private autonomy to state authority in Logan Valley, Justice White emphasized that scarcity in the broadcast spectrum rendered broadcasters' property interests in their frequencies contingent and ultimately controllable by the government.]

Interestingly, in Miami Herald (a subsequent case), a similar argument arises in the context of newspapers. A state law requires newspapers who present one-sided political discussion to devote an equal amount of space to presenting the other side. The Court strikes this down – the concept of scarcity isn‟t there. Note that the court doesn‟t really go through a systematic analysis of why the identity and continuity issues are different than in Red Lion. Technological Scarcity v. Economic Scarcity Even if you aren‟t dealing with a finite resource, the market will still only support so many providers of information. In Red Lion, the Court based much of its argument on technological scarcity. While the technological scarcity argument doesn‟t really apply to newspapers, the economic scarcity argument does. Philadelphia only has two major newspapers – many less than it used to, as the newspaper market has contracted a great deal. The state in Miami Herald argued that this warranted a similar approach to newspapers – when a newspaper columnist attacks you, it‟s not as if you have an infinite amount of newspaper space to counterattack. The Miami Herald Court dismisses this argument: it would yield a slippery slope to super-media regulation. The economic scarcity argument can apply to all types of media in all circumstances. CBS v. Democratic Nat’l Committee 1973 Synopsis During the Vietnam War, the DNC and some anti-war protestors want to buy editorial advertisement time from CBS. CBS refuses, arguing that they don‟t air editorials. The DNC and the protestors sue; the Πs arguing that they have an affirmative First Amendment right of access to an important medium of communication, while CBS says they have a First Amendment right to deny access. The DNC wants to pay the same rate, but just want to get their message out there. The Court agrees with CBS. Broadcasters are not constitutionally required to accept advertisements. Court rejects idea that broadcasters are state actors We don‟t that the 1st Amendment imposes a mandate to provide access to the means of communication. CBS v. FCC 1981 Synopsis The FCC has passed a law that broadcasters provide a certain amount of air time to political advertisers. CBS sues, arguing that CBS v. DNC provides broadcasters with a First Amendment right to deny access. The Court disagrees, and states that broadcasters have no such right. 106

[The Justices rejected the argument that the FCC regulation impermissibly burdened the broadcasters' editorial discretion, concluding that the regulation “makes a significant contribution to freedom of expression by enhancing the ability of candidates to present, and the public to receive, information necessary for the effective operation of the democratic process.” The Court, however, emphasized that the regulations created only “a limited right to „reasonable‟ access that pertains only to legally qualified federal candidates,” and its acknowledgement of the regulation's First Amendment value stopped far short of recognizing an actual First Amendment access right. CBS v. FCC thus solidified the hybrid analysis the earlier media access cases had constructed. As Red Lion had established, the government could choose to impose broadcast access reforms in order to advance the public interest. However, as CBS v. DNC had established, the government was under no First Amendment obligation to do so, and as Miami Herald had established, broadcast access reforms constituted a limited, medium-specific exception to the prevailing First Amendment concern for media owners' expressive autonomy.]

Class Discussion How are these two CBS cases reconcilable? The Court rejects the First Amendment claim in both cases – first the people‟s attempted right of access, and second the broadcaster‟s attempted refusal of access. The factual difference between the two cases is that the government in the second case has imposed a legal requirement. Thus, it seems like the Court views these two interests as being basically equal, and the Court decides to let the FCC strike the policy balance. On the one hand, the First Amendment should allow a balance of information to get out. On the other hand, the First Amendment should allow speakers to speak about what they want. When the FCC makes an affirmative statement that broadcasters must provide political advertisers with time, that tips the scales enough for the Court to make a decision. Isn‟t the first Amendment superior to congressional action? In these broadcast regulations case, regulatory action makes such a big difference, and thus the court gives congress deference, because Congress has supposedly done CBS Bifurcation of Red Lion - CBS v. DNC –Court not taking next step to transform a recognition of a first amendment interest into a first amendment mandate - CBS v. FCC – Court will say that, when there are first amendment interests cutting both ways, we lose our judicial prerogative to invoke the first amendment. When if breaks both ways we defer to the federal government to determine which first amendment interest should prevail. o However, the first amendment is the first amendment. Odd for the court to forego constitutional adjudication and leave the constitutional issue for Congress. Note the consistency with Red Lion – the FCC, within its regulatory authority – can prescribe certain uses of the broadcast spectrum. However, the Court doesn‟t rely on Red Lion. Why not? The Court may be becoming uncomfortable with Red Lion‟s rationale. The technological scarcity rationale is a kind of argumentative gimmick that gives the government a power. The Court seems to want the public trust argument to carry more power. Turner Broadcasting v. FCC 1994 Synopsis Government regulation requires cable providers to offer the local broadcast affiliates space on cable (the „Must Carry Rule‟). Cable providers point to the newspaper cases – cable does not present any issues of technological scarcity. The Court determines that this regulation is subject to intermediate scrutiny, and permits the regulation. 107

Three important interests - Preserving the benefits of free, over the air local broadcast television - Promoting the widespread dissemination of information from many sources - Promoting fair competition in the market for television programming Class Discussion The Court (implicitly) bases its reasoning on the public trust rationale and economic scarcity. To allow the cable providers their way gives them too much power – they would have a bottleneck over the information that goes into people‟s homes. This justifies the lower standard for regulation of cable providers. Board Notes Idea that Media “Serves a Public Trust” 1) Aids Media Claims a) Media v. Government i) Information Cases (1) Richmond Newspapers (Media wants government information) (2) Branzburg (Government wants media information) 2) Blocks Media Claims a) Media v. People i) Access Cases (1) Red Lion (2) CBS v. DNC 04/16/04 THE FIRST AMENDMENT: RELIGION Overview of the Religion Clauses The confusion that has arisen in the area of freedom of religion is basically unmatched in constitutional law. The First Amendment has two Clauses regarding religion: 1) The Establishment Clause – The First Amendment says that Congress will make no law respecting the establishment of religion a) Generally understood to mean government may not interfere with religious matters or support any particular religion 2) The Free Exercise Clause – The First Amendment says that Congress will make no law respecting the free exercise of religion a) Generally understood to mean government may not interfere with people‟s religious freedom Problems in the interpretation of the Religion Clauses arise from the inevitable tension between the two The Free Exercise Clause An affirmative/rights-granting provision; like the Equal Protection Clause and the Free Speech Clause. Remember that in Free Speech jurisprudence, we‟ve seen tensions (e.g., public forum and broadcast 108

regulation). In Free Speech cases, the Court has weighed policies of non-discrimination (public-forum) versus public access (broadcast regulation). The Court has generally come down on the nondiscrimination side – the government needs to not willfully discriminate. Non-Discrimination Theory – Weakest FE Theory By 1990, the Court has adopted this approach, but allows some permissive accommodation (below) as well. The government cannot willfully discriminate against religions. It is not a problem if government policies „just happen‟ to have an effect of discrimination. Mandatory Accommodation Theory – Strongest FE Theory The Court starts here, though by 1990 it is gone. It doesn‟t matter if the government is deliberately trying to interfere with people‟s religious beliefs – the government must create an „exemption‟ (or „accommodation‟) to exempt certain religious persons from the reach of a generally applicable statute. Any statute that cuts against somebody‟s religious beliefs must satisfy strict scrutiny to get past the Free Exercise Clause. Notice that this argument is necessarily an as-applied challenge. The classic example is in the Smith case; must the government allow Native Americans use peyote even though no one else can. Permissive Accommodation Theory – Middle Ground There is no „mandatory‟ accommodation; the First Amendment does not mandate accommodation. However, the government is allowed to, as a matter of discretion, create accommodations. The Court leaves it to the government to make legislative judgments about what kinds of accommodations are appropriate. The Establishment Clause Non-Preferentialism/Non-Coercion Theory – Weakest The only thing the Establishment Clause does is prevent the government from establishing any kind of government church and from coercing people to attend a particular church. The government doesn‟t have to treat religion and non-religion generally; just so long as the government doesn‟t favor certain religions, everything is fine. Separationism Theory – Strongest The Establishment Clause requires a „wall of separation‟ between church and state. Contact/cooperation between the government and religious organizations is forbidden. The government must treat religion and non-religion equally – generally, the government cannot favor religion over non-religion. Non-Endorsement Theory – Middle Ground The is the approach taken by the modern Court. The EC bars the government from doing things that appear to or actually endorse certain religious doctrines. As a middle ground, there is a lot of debate here: Non-endorsmentists are split as to whether government can endorse religion over non-religion; there is also debate as to whether there can be significant government interaction between religious institutions and the government. Modern Approach Notice that when analyzing any particular law, the closer you get to „strong‟ views of the FE Clause and the EC, the more mutually exclusive you get. Conversely, the closer you get to „weak‟ views, the more 109

likely it is that you are not treating the Religion Clauses as having any significance. What the Court has done, is gravitate to the middle ground on each Clause. Neutrality Theory Another option – says the government should just take a „hands off‟ approach to religion. While it sounds good, it is too unclear and brings the argument back to the other views. Board Notes Religion Clauses: Theories 1) Free Exercise a) Mandatory Accommodation (Strong – Free Exercise Clause has broadest application) b) Permissive Accommodation (Middle) c) Non-Discrimination (Weak) 2) Establishment a) Separationism (Strong – Establishment Clause broadest application) b) Non-Endorsement (Middle) c) Non-Preferentialism/Non-Coercion (Weak) 04/19/04 Free Exercise of Religion I The „natural tension‟ between the FEC and the EC tends to arise in the area of accommodations. On one hand, the FEC argues that religious persons should be provided with an exemption from laws that may impinge on their religious exercise. On the other hand, the EC argues that such exemptions would constitute impermissible favoritism to those religions. Church of the Lukumi Babalu Aye v. City of Hialeah 1993 Synopsis The Santeria church did a lot of animal sacrifice. The church planned to open a church in the Florida city of Hialeah. The city passed an ordinance that prohibited ritualistic animal sacrifice, but provided exceptions for slaughterhouses and whatnot. The Court struck down the ordinances finding that the law, while apparently neutral on its face, actually targeted against practitioners of the Santeria faith and violated the Free Exercise Clause. Protections of the Free Exercise clause pertain if the law at issue discriminates against some or all religious beliefs or regulates of prohibits conduct because it is undertaken for religious reasons. Class Discussion This is a rarity in the area of the Religion Clauses – an easy case. The Court found that the ordinances are very close to being facially discriminatory, but not quite. It isn‟t an anti-Santeria ordinance; the evidence of targeting religion is substantial and compelling. The Court then goes on to look at the effects of the ordinance and the minutes of the city council meetings 110

(legislative intent). From this evidence, the Court (via Kennedy) finds that the city is deliberately discriminating against Santeria. Deliberate Discrimination  Strict Scrutiny When the government is deliberately discriminating against a religion, the government must satisfy strict scrutiny. A law infringing upon practices because of religious motivation, the law is not neutral and is invalid unless it serves a compelling interest and is narrowly tailored to advance that interest. When you commit to a non-discrimination regime, you commit to a difficult process to determine what is going on. 1) Does the detriment impose any burden on the free exercise of religion (facially discriminatory)? 2) Compelling Interest – a) The city alleges: i) Public Health – The Court doesn‟t buy it; the government could have just regulated animal slaughter as opposed to banning it. ii) Prevention of Cruelty to Animals – The Court doesn‟t buy this one either; many more animals are slaughtered in the „exceptions.‟ Further, why get so concerned about animals right when Santeria is coming to town. 3) Narrowly Tailored – a) Public Health – Regulation of animal slaughter would be narrower than outright bans. b) Prevention of Cruelty to Animals – This doesn‟t even seem to be related; many more animals are killed under the exceptions. Hypo I What if the religion at issue practiced human sacrifice? Strict scrutiny would still apply, but the city would have a much easier time showing a compelling interest. Hypo II What if the city had passed a law strictly regulating animal slaughter many years ago that had nothing to do with religion, and then the Santeria practitioners showed up and sued to invalidate the law? Notice that one of Kennedy‟s major emphases is that the city is actively discriminating against Santeria. Scalia‟s dissent contends that the intent of the law shouldn‟t matter at all – the only question is whether the law discriminates against the religion. Even if the motives of the city council were benign, Scalia says that it still constitutes intentional burdening of religion. However, this is different then a classic accommodation case, where the government has a neutral law that has been enforced against others in the past. Thus, the law in this hypo would be subjected to the standard accommodation analysis. To say there is intentional discrimination only means that the law was deliberate. Hypo III People get elected to council because they were against animal cruelty before the church came to town. They excepted butchering practices. Enforced the ordinance for 20 years. Santeria church comes to town, and city enforces the ordinances against the Santeria church. This is a different case. The council is not deliberately targeting religion at all but going about its ordinary business without regard for religion or religious practices. Here, Relation to Other Doctrines In the race-based Equal Protection cases, the Court ended up being pretty accommodating to the government so long as there was no deliberate discrimination. „Disparate impact‟ alone did not trigger strict scrutiny. Similarly, in the free speech cases, the Court was pretty accommodating to the 111

government so long as there was no viewpoint discrimination. O‟Brien was used as a method of intermediate scrutiny without it. „Deliberate discrimination‟ is the FEC‟s analogue to these doctrines. Braunfeld v. Brown 1961 Synopsis A town‟s „Sunday Closing Laws‟ required that all businesses close on Sundays. The Πs were Jews, who closed their stores on Saturday as their Sabbath. The Πs argued that their religion made them close on Saturday, and the state made them close on Sunday – they were thus losing two days of business per week. Plaintiffs don‟t want to be put to the choice of losing the money by closing on Saturdays or go against their religion by staying open. The Πs argued this is an unconscionable choice. The Court rejects this claim. Freedom to act, even when the action is in accord with one‟s religious convictions, is not totally free from legislative restrictions. Test -

Court distinguishes between laws that directly prohibited a particular religious practice and laws that indirectly burdened a religious practice as an unintended consequence.

Class Discussion Extent and nature on burden to religion: The Court (via Warren), concludes this is an indirect burden on the Π‟s religion. The state is not attacking the Π‟s religion; the law doesn‟t make the religious practice itself (i.e. taking a Saturday Sabbath) illegal. Rather, the state just picks an „arbitrary‟ day to calm the hustle and bustle of the town. It is a general law, neutrally applied. Doesn‟t this implicate the Establishment Clause? A mandatory legal day of rest, mandated to be on Sunday, and then challenged by Jews? Doesn‟t this look like the state establishing a Sunday Sabbath? Yes. The Πs, however, don‟t raise this argument. The government really should have lost this case – this law really probably violates the Establishment Clause. However, another wrench in the gears here is that if the state had provided an accommodation to the Jews here by allowing them to remain open on Sundays, that accommodation would also be a violation based on the Establishment Clause. It would cause a windfall for the Jews. Many folks would probably like to stay open on Sunday, and allowing the Jewish to do so might be viewed as favoritism. If you are a religious community that suffers a special burden by virtue of the neutral application of a general government law, we‟re not going to give you more than rational basis review. Sherbert v. Verner 1963 Synopsis A Seventh Day Adventist believes she cannot work on Saturday. She is fired from her job for this reason, and subsequently applies for unemployment benefits. She can‟t get another job because she won‟t work on Saturday. She stops seeking employment because of this constant rejection – 112

determining that no one will hire her because of her religion. The state requires that persons getting unemployment benefits be actively seeking work. The state therefore withdraws her benefits. The Court strikes down the law, and makes the government accommodate that person. Class Discussion This is a classic accommodation case. Unlike Braunfeld, there is no air of religion at all around the state‟s regulation – the government was clearly just making a policy choice with this law. The burden on the Π is truly incidental. Substantial Burden  Strict Scrutiny The Court decides that any time a person‟s Free Exercise of religion is substantially burdened by the state, the regulation gets strict scrutiny. Categorically, in religious accommodation cases, we apply strict scrutiny. Test -

To invalidate a statute under the Free Exercise Clause, the challenger must demonstrate that the law had the effect of substantially infringing on her religious practices Government must then justify that the substantial infringement on religion was justified by a compelling state interest. Government would have to prove that the program was the least restrictive means of achieving the compelling state interest sought.

However, as a practical matter, the government almost always wins in these contexts. Only in unemployment benefit cases does the Court really use Sherbert. Dissent Harlan notes that plaintiff was denied benefits just as any other claimant would be denied benefits who was not “available for work” for personal reasons. State is singling out for financial assistance those whose behavior is religiously motivated, even though it denies such assistance to others whose identical behavior is not religiously motivated. Wisconsin v. Yoder Amish parents don‟t want to send their kids to public school. The state can‟t force their students into school, and strict scrutiny is applied. Sherbert and Wisconsin are the only religious accommodation cases in which plaintiffs win. We know that this is odd. Usually, the government loses under strict scrutiny. Under religious accommodation cases, it is the rule. Court continues to embrace and assert the Sherbert rule of strict scrutiny, but it steps away from strict scrutiny most of the time in a contrary manner. Board Notes Free Exercise/Establishment Tension


Establishment Clause: Impermissible Support?

Free Exercise Clause: Permissible Accommodation

Lukumi: No Deliberate Discrimination

04/21/04 Free Exercise of Religion II: Employment Division v. Smith Smith is the leading case in the are of FEC accommodations. Lukumi comes after Smith, and holds that purposeful targeting of religious exercise gets strict scrutiny. The real action in the are of FEC is the Smith area – when there isn‟t purposeful targeting by the state. In Sherbert, the Court held that religious accommodation cases (i.e. when someone with religious convictions is having a generally applicable law infringe on their religious exercise) receive strict scrutiny. In practice, the Sherbert rule is rarely enforced. Three categories of post-Sherbert cases: 1) Cases with the same facts as Sherbert a) The Court faithfully follows Sherbert i) Denial of employment benefit claims ii) Yoder 2) Cases in which the Court purports to apply strict scrutiny, but the government keeps winning 3) Cases in which the Court looks at particular accommodation claim, says Sherbert should/could apply, but then finds an „exception.‟ These results suggest that Sherbert did not give rise to a stable doctrine. Along comes Smith, in which „the other shoe drops.‟ Employment Division v. Smith 1990 Synopsis Native American church uses peyote for religious reasons. Church practitioners are fired from their job for their use of peyote. The state denies them unemployment benefits because they were fired „for cause‟ – namely, drug use. They sue based on Sherbert and lose. Class Discussion 114

Rational Basis Review The Court holds that religious accommodation cases get rational basis review; not strict scrutiny. Note this only involves the neutral application of generally applicable laws; as Lukumi made clear, deliberate discrimination receives strict scrutiny. Getting Around (Smashing Through) Precedent The Court must distinguish both prior unemployment cases having to do with the FEC, as well as other First Amendment cases that receive strict scrutiny (i.e., Cantwell and Yoder). 1) Getting Around – The Court (via Scalia) distinguishes Sherbert on the rationale that, unlike Sherbert, the underlying conduct here is illegal. 2) Hybrid Rights Claims – Scalia asserts that in Cantwell, there was both a FEC claim and a Free Speech claim, in Yoder, there was both a FEC and a Substantive Due Process claim. Thus, a) „Hybrid Rights‟ cases receive strict scrutiny i) Nobody has come up with any reason with how this works; no one knows how the FEC contributes to a claims entitlement to strict scrutiny. ii) The Court doesn‟t say that any of the rights implicated in „hybrid‟ cases must independently receive strict scrutiny. However, the cases the Court cites for this theory (Cantwell and Yoder) were such cases. Reasons for Rejecting Strict Scrutiny 1) Mechanical Problems with Strict Scrutiny in this Context – the Court concludes there are some doctrinal challenges to using strict scrutiny in religious accommodation cases that aren‟t present in other, accepted, contexts a) Anarchy – There are so many religious beliefs and doctrines, if they were allowed to routinely overrule the law we would have anarchy i) How is this different from free speech? (1) There is a speech/action distinction. While this distinction is imprecise, it exists. (2) True, but we use strict scrutiny in free speech/expression cases to prevent anarchy b) Disutility – The practical failure of applying the Sherbert/strict scrutiny doctrine in religious accommodation cases shows the strict scrutiny doesn‟t work in this context. Therefore, strict scrutiny should be tossed for this context, and another test must be adopted. i) Watering-Down – Keeping strict scrutiny alive in this context, in which it fails, will inevitably water down its power in other contexts. ii) But Why Rational Basis Review? – In the Free Speech context, when speech is burdened by generally applicable government laws (time/place/manner regulations), the Court uses the intermediate scrutiny of the O‟Brien test. Why not split the difference in religious accommodation cases in the same way and use intermediate scrutiny? The Court doesn‟t address this – though the answer is likely that intermediate scrutiny is, if anything, less principled than any other standard of review, including strict scrutiny and rational basis. 2) Judicial Determinations of „Centrality‟ – Courts should not be in charge of determining how important or „central‟ particular religious tenets are to given religions, and thus how burdensome a particular law is on the religion. Such determinations would be required to do any kind of „balancing‟ required under strict scrutiny. a) Two reasons why the judiciary shouldn‟t be making such determinations: i) Institutional Incompetence – Such topics are just too dicey for the judiciary; in no other context do judges have to make these kind of substantive determinations (1) Not true, in order to get to strict scrutiny in the free speech setting, courts make categorical decisions about whether something is „obscene‟ or „fighting words.‟ (2) True, but maybe coming up with some analogous standard here is just harder 115

ii) The Establishment Clause – Smith makes no mention of the EC. But it seems intuitive that the government should not become overly entangled with religion, and for judges to make such determinations would be to put them in the position of determining religious doctrine. For example, the issue could be regarding some point about which Catholics and Protestants disagree. The Result Rational basis review basically kills any claim against the government. Isn‟t there something wrong with the judiciary stating there is a constitutional right, but then backing off from any kind of test that would enforce that right? Permissive Accommodation under the Political Processes The bone Scalia throws those disappointed by this decision is that the legislature can always make substantive determinations and give accommodations from generally applicable laws to certain religious groups (as many states do for peyote). Two problems with this: 1) This seems counter to the EC; there is an argument that the legislature shouldn‟t be in the business of determining what accommodations to make 2) This puts the people at the biggest risk of persecution or disregard (religious minorities) at a serious disadvantage. Board Notes Free Exercise: Employment Division v. Smith 1) Distinguishing precedents: a) Sherbert, etc. b) Cantwell and Yoder 2) Objections to strict scrutiny of accommodation claims a) “Anarchy” b) Watering down of strict scrutiny in other contexts 3) Favoring legislative over judicial balancing a) Judicial determinations of “centrality” b) Permissive accommodation 04/23/04 Establishment Clause I Go back to the „strongweak‟ discussion day of the Religion Clauses. 1) Separationism – Gives a „strong‟ effect to the EC. The Court is very suspicious of government and religious involvement a) Requires the government to avoid supporting or assisting religious institutions or practices in any material way 2) Non-Preferentialism/Non-Coercion – Gives a „weaker‟ effect to the EC. The EC does nothing more than coercing participation in religious practice and/or establishing a preference for a particular religion. 116

a) Does not require government not to provide some support to religious institutions; merely requires the government to avoid coercion to, or preference for, any particular religion. 3) Non-Endorsement – Gives a „middle-ground‟ approach to the EC. The EC doesn‟t allow the government to do anything that actually or apparently endorses religion. a) Thus, government behavior need not coerce adherence to religion – mere endorsement is sufficient to violate the Constitution b) Also, there need not be total separation Religion v. Non-Religion Is it a problem for the government to favor religion generally without favoring any particular church? 1) Separationists would say „yes‟ a) The EC requires separation between the state and religion at all 2) Non-Preferentialists/Non-Coercionists would say „no‟ a) This is not favoritism or coercion to a particular religion 3) Non-Endorsementists would say „maybe‟ FEC v. EC There is a natural tension between a strong understanding of the FEC and a strong understanding of the EC. Remember Sherbert, the Court‟s strongest approach to the FEC – even unintentional infringements of people‟s religious practices violated the FEC; the government must accommodate (the Court ultimately discarded this view in Smith). Had the Court followed this approach in Smith, the Court would have held that the government must allow Native Americans to use peyote; even if no one else can. It should be clear now that such favoritism may run against the EC. The Lemon Test (1971): In order for a governmental action to survive under the EC challenge; the following three things must be true: 1) Secular Purpose Component – The law must have a secular (i.e. non-religious) primary purpose 2) Secular Effects – The primary effect of the law must neither advance/inhibit religion 3) Non-Entanglement – The law must not foster an excessive government entanglement with religion Lemon test is perceived as a strong separationist test. Three factors sets up a formidable set of hurdles for government action. Problem with the black letter law in this area is that the court has never abandoned Lemon, but a majority of justices have criticized Lemon. However, a majority of justices cannot figure out a new test. (APPLY LEMON BUT BE FLEXIBLE) Separationist The Lemon test lays out a pretty clearly separationist position toward the EC; which was fairly common in the 50s and 60s. In subsequent cases, we see a philosophical change on the Court. Common Objections to Lemon 1) The first and third prongs of Lemon may make permissive accommodation of religion impossible. The Court said that legislatures could grant such accommodations (i.e. PA could say that Native Americans in PA can use peyote). a) Establishment and Free Exercise clauses in conflict. Difficult to say that a religious accommodation has a fully secular purpose. Critics may say not a religious purpose, but a purpose to extend religious liberty. 117

2) First prong is difficult to interpret because legislative intent is tough to pin down. General problem with any purpose analysis. 3) The Religion Clauses create obvious government entanglement with religion; thus the third prong seems contradict itself. Problem with neutrality as an aspiration of establishment clause doctrine. Hard for the government to do nothing in the important field of religion. Over time, the first and the third prongs of Lemon take a beating. As a result, the second prong of Lemon becomes the common battleground – does it mean non-endorsement or non-coercion? Zorach v. Clauson 1952 Synopsis NYC had a „release time program‟ in its public schools. Students with parental permission can leave school for a few hours every week and go receive religious instruction, while other students stay in school and wait for it to begin again. The Court upholds the program. No Establishment Clause violation. Class Discussion This case is pre-Lemon. Majority: Merely Accommodation Over the dissenters‟ argument that this is a favoritism of religion, the Court concludes the release program is merely an accommodation – a state move to “get out of religion‟s way.” Majority: Non-Coercion/Non Preferentialist View of the Establishment Clause The Court holds that any objection based on the EC must be that there is some state coercion to force religion on people. This opinion is a classic illustration of the „weak‟ view of the EC – there is no coercion or preference, and thus there is no problem. Release program isn‟t singling out any particular religion for the benefit of excluding others. Dissenters: Separationist view Government is making a special arrangement for facilitating religious education. This bothers separationists. Black, in dissent, says that we need a strict separation between religion and state, separation should preclude states giving religion a preference over non-religion. Dissenters: Not Merely Accommodation This is not a mere „accommodation.‟ In every other accommodation case we‟ve seen, the Πs contend that they need to do certain things for religious reasons and the government, albeit unintentionally, is blocking their necessary practice. That is not the case here – there is no indication the children going to these classes need them based on religious reasons. Dissenters: Coercion is Present While the program isn‟t forcing kids to be religious, it is putting a kind of „pressure‟ on them. Those who didn‟t go on religious release had to just sit quietly at their desk. This made those who didn‟t go feel isolated and appear „odd‟ to their religious peers.


This shows a difference in the separationist and non-preferentialist/non-coercionist view of coercion. Separationists argue that coercion is easy to find – like the dissenters did here. Non-preferentialists/noncoercionists argue that coercion must be mandated religious attendance by the state. Lee v. Weisman 1992 Synopsis Declares organized school prayer unconstitutional. Public school district typically invites a clergy member to give a religious invocation at the opening of the ceremony. The Court finds this a violation of the EC. Class Discussion Endorsement analysis The prayer in question bears the imprimatur of the state, state approval. This suggests that the state is showing favor for religion. Discomfort with even a general endorsement of religion. Might define endorsement the line in the sand past which the government can‟t cross pursuant to establishment of religion. Subtle Psychological Coercion Analysis (Departure from Zorach) The Court finds a subtle coercion going on. At the beginning of the invocation, everyone is told to stand. What does this do to the atheists? They have three choices: 1) Don‟t go to their high school graduation a) This is an unfair choice to put to kids 2) They can stand a) This makes them cooperate in the religious ceremony 3) They can stay seated a) That‟s like staying in school in Zorach The Court talks a lot about coercion as the grounds for EC violations (and thus a „weak‟ view of the EC). Concurrences Non-coercion/non-preferentialism rationale is incoherent. Every provision of the law needs to be given independent effect. If the establishment clause only requires non-coercion, then the establishment clause does not necessitate the free exercise clause. The concurrences, however, stress that an endorsement rationale can justify the Court‟s opinion. This „strengthens‟ the overall view of the Court here. Endorsement Analysis: Part of Lemon Test or broken out on its own - Discussion of EFFECT. Does this school prayer have the effect of…what is really important under the establishment clause is the effect the government regulations have on the establishment of religion. - Manifestation of effects emphasis is to require non-endorsement as the alpha and omega of establishment clause analysis. Board Notes 119

Establishment Clause: The Lemon Test: 1) Secular legislative purpose 2) Primary effect neither advances nor inhibits religion a) Non-endorsement? b) Non-coercion? 3) No excessive government entanglement with religion 04/26/04 The Establishment Clause II: Display of Religious Symbols and Government Aid to Religion Our discussion of the Religion Clauses has always touched on accommodations. A big question has been whether the government is required to provide accommodations; the Court in Smith said „no.‟ However, Smith allowed for the government to legislatively provide accommodations. This set the stage for battles in the EC area. What is the proper interpretation of the EC? What does it actually prevent the government from doing? We‟ve looked at the range of options – separationists to non-coercionists. Lemon and its three-part test remains the leading case in this area – though most of the Court has long repudiated this test without providing a replacement test. Thus, when analyzing a EC problem, use Lemon along with the endorsement test (as an alternative to Lemon) in Lynch below. Notice that in Lee, above, the majority didn‟t use Lemon – instead they moved away to focus on the effects part of the Lemon test. Board Notes Establishment Clause 1) Public Religious Displays: a) Lynch v. Donnelly i) Majority analysis ii) O‟Connor „endorsement‟ test 2) Financial Support for Religious Institutions: a) Mueller v. Allen i) What theory? ii) What constitutes impermissible support? Lynch v. Donnelly 1984 Emblematic of public display of religious symbols. Synopsis City in Rhode Island set up a holiday display that had both non-religious imagery and a nativity scene in it. The Court held this was okay. Class Discussion This is the primary alternative to the Lemon test, and is the leading case about public religious displays. 120

The Court notes that Christmas is actually a religious holiday. However, over time, it has become part of Americana – it is therefore okay to have a state-sponsored religious symbol. The majority compares this to the “In God we Trust” that is printed on money and the invocation of God at the beginning of congressional sessions. The Court concludes this is merely a familiar display of American life. Cultural traditions are so deeply imbued with Christian tropes that some advancement of Christianity is inevitable if the town is going to highlight the town and history of the country. Court needs to think about the substance of religious practices in this case, and the Court gets queasy. Mandatory to make a sweeping statement about the religious nature of Christmas. What is the Effect? The Court seems to ignore the important question of what is the effect of the religious symbol on those who don‟t participate in the religion? Brennan‟s Dissent Brennan agrees with the majority on the points of “In God we Trust” – there are religious things in American life that have lost all religious significance; and the Court need not care about that. However, Brennan contends the Court is not saying that government religious statements are okay so long as they‟ve lost all religious significance (which Brennan appears to agree to). Instead, Brennan asserts the religious display in question is heavily religious. Concern should be on the non-believers. Hard to escape the conclusion that the city, an entity that controls your existence, is promoting another belief system over their own. There is nothing essential to the American character of the nativity scene. Easter Hypo – Tool What if the state had set up a graphic crucifix on the lawn of the state capital over Easter? The Court might be able to distinguish this – the Court seems to balance the centrality of the image to the religious faith against the secular nature of the symbol. The nativity scene at Christmas is highly secular, while a crucifix at Easter is highly religious. O‟Connor‟s Concurrence The Endorsement Test For O‟Connor, government „endorsement‟ of religion means that the government is requiring adherence to a religious belief for political standing. Your religious identity should not be something that makes a difference in your status with the political community. Whether the state is alienating people form membership or participation in the political realm because of their religious belief or the lack thereof. Thus, the EC bars the government from making adherence to religion relevant to a person‟s standing in the political community. Directly acknowledging the non-majority audience. O‟Connor places significant emphasis on the fact that the nativity scene is part of a larger holiday display, finding that it is a seasonal holiday display. When you put the nativity scene in that context, the overall effect of the display is not sufficiently imbued with religion to be said to endorse religion. 1) Notice this ignores any government intent 2) This also doesn‟t require coercion; O‟Connor stops short of that Mueller v. Allen 1983 Synopsis 121

Minnesota gives a tax deduction for the cost of transport/books/tuition in education. As a practical matter, the big money in that scheme is tuition in private schools. The vast majority of private schools in Minnesota at this time are religious, and many then view the law as a state incentive to go to religious schools. The Court upholds the program. Zelman v. Simmons-Harris Synopsis Cleveland has a voucher program that gives low-income parents vouchers to send their kids to schools of their choice. Most parents send the kids to religious schools. The Court upholds the program. Class Discussion Surely, straight-up state funding of religious institutions would violate the EC – that is certainly endorsement. The Court asserts that in these two cases that is not happening. Autonomous Intermediaries In these cases, state money first goes to autonomous intermediaries, who can then do whatever they want. It just so happens that most of the parents chose to use this money to go to religious schools. O‟Connor‟s concurrence in Zellman states directly that this is not state endorsement. Is this reasoning persuasive? The state certainly „knows‟ where the money is going to end up. For example, the state knew two things in Mueller: first, tuition is the most expensive part of private school, second most private schools in Minnesota were religious. In this sense, the programs are like moneylaundering. Purpose v. Effects Rehnquist (who wrote both opinions) answers this by focusing on purpose – this „reality‟ of moneylaundering is irrelevant; the state is not intentionally supporting religion. But what about effects? Isn‟t the „effect‟ of these programs to endorse religion? A massive percentage of the state money is going to religious institutions – isn‟t this effectively endorsing religion. 04/27/04 Review Day Exam Stuff 1) Theories a) Could be useful in the third question b) Not particularly handy in the other questions Congruence and Proportionality 1) Means/ends test a) Congruence – „Ends‟ i) Congress must be remedying a problem that the Court holds is really a problem under the Constitution (1) This is only unclear when the Court hasn‟t spoken on an issue, or has spoken unclearly. Congress can then take its „shot‟ – guess at what the Court would hold. The law will then come before the Court, and the Court will basically review Congress‟ action de novo. 122

(2) Bottom line – the Court has the „last word.‟ b) Proportionality – „Means‟ i) Once Congress has identified a „real‟ problem according to the Court, the remedy must be reasonably tailored to address the problem at issue. Has Congress created an overly ambitious remedy in the eyes of the Court? If so, the Court will strike down. 2) Note that § 5 only authorizes Congress to enforce the Civil Rights Amendments; thus the congruence and proportionality test only apply to Congressional acts. State Action – The Nexus Test 1) Implicit Authorizations (by the state to violate rights such that the private actor‟s action rises to state action) a) CA Housing Act bars any Free Housing Laws. This is a state invitation for those providing housing to discriminate however they want i) Racial discrimination is big for finding „implicit authorizations‟ (1) For example, in the UCC case, the state authorized private warehouse owners to take goods. The Court though this was fine RAV 1) Holding – When government is regulating unprotected speech, it may not select a subset of that speech based on the content of that subset. a) For example: i) If the government is trying to regulate fighting words, it can certainly target the most vicious fighting words. However, ii) It cannot specially target fighting words involving swastikas b) This creates a possible problem – sometimes the swastikas might be the most vicious 2) There are some modern implications that RAV is going by the wayside as precedent 3) In any event, the holding applies only to content or viewpoint based regulations. a) The content based rationale seems weak b) The viewpoint based rationale is stronger i) Thus, RAV is useful if the government selects a subset of unprotected speech to regulate based on the viewpoint of the subset. ii) The government should not make viewpoint based speech regulation, even if that category of speech is already unprotected 4) Structural similarities to Hudnut a) In both, the courts didn‟t resolve the issues „simply‟ as they could have. They went the complicated route Incitement to Violent Action 1) „Clear and Present Danger‟  „Incitement Test‟ = ONE DOCTRINE 2) Dennis is an aberration 3) Brandenburg is the law The Government Subsidy Cases 1) Regan v. Taxation w/o Representation a) Dissent: Segregability 2) Broadcaster Case a) Segregability important b) Never entitled to money anyway 3) Rust v. Sullivan 123

a) Government as Patron v. Government as Speaker i) Government is advancing particular government policy b) Subsequent cases make clear that Rust is authorizing viewpoint based regulation when the government is acting as the speaker. Though Vasquez makes clear that the requisite circumstances are not going to be found very often. 4) Vasquez a) Government is acting as patron i) Government cannot therefore act with viewpoint discrimination Thus the focus goes from: Segregability  Speaker v. Patron  Viewpoint discrimination Limited Purpose Public Forums 1) If the government is attempting to regulate speech that falls within the scope of the forum, it is as if we are in a public-forum a) Strict Scrutiny 2) If the government is attempting to regulate speech that falls outside the scope of the forum, the government has greater regulatory power a) Allowed to regulate in a way that is reasonable in light of the purpose of the forum i) Probably rationale basis review Commercial Speech 1) Commercial Speech – “Speech that does nothing more than propose a commercial transaction” a) Because commercial speech is so narrowly defined, it almost never expresses an idea, and therefore is never really subject to viewpoint discretion b) If there is ever a close case, there are two options: i) Commercial speech is all it is, Hudson controls ii) The commercial speech somehow is political or otherwise valuable, and therefore strict scrutiny 2) Governed by the Central Hudson Test a) First, the speech must be truthful and not misleading b) Then, like O‟Brien, Hudson is a form of intermediate scrutiny Speech Regulations 1) The rules about viewpoint/content based regulations etc. can apply to state action as much as state legislation. In a straight up legal analysis, unlikely you will writing about the color consciousness rationale and the others in the final. Role of the theoretical terminology to help you understand what‟s going on. Religion clauses (establishment/free exercise) o How to figure out which you‟re dealing with o Sometimes, a religion problem doesn‟t present both o Only one of the issues are seriously presented


Overbreadth and vagueness - Whether law is constitutionally proper for the government to restrict your speech in that way. Standard first amendment analysis. Does the statute purport to restrict speech the government can do, but does it go beyond the range of permissible speech to touch other things. 124

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