Con Law Individual Rights: McGoldrick 1/10/06: Class Notes Main body of the initial C did not protect IR. Framers proposed amendments protecting those rights. 12 were proposed, 10 of which were ratified (BOR). Limiting aspect of BOR is that they did not apply to the states and applied only to CG. 13 th-15th Am‟s protect against state infringement of IR. 14th Am by its terms says “no state may deny…P&I…” (see Slaughterhouse cases). In the 14th Amendment is the Due Process clause, which is a vague term of uncertain definition. 5th Amendment DPC applies to CG – any federal due process issues. The 14 th DPC applies to the states. So any state and local law raising due process issue you raise a 14 th amendment claim. Analysis is the same. The meaning of the DPC has changed since initially passed. It started as a reference to the J issues of the courts and right to procedural fairness. Used to incorporate the BOR against the states. All but the right to indictment by grand jury and jury trial have been made applicable against the states. Substantive due process: things you might be doing or interested in doing what level of protection does the DPC in the 5 th and 14th give to substantive interests? State can use its police powers to limit our behavior, but the DPC places limits on the degree of the state‟s use of its police powers. Nothing in the C says that he DPC was intended to limit their usage, but the Court has interpreted as such. Court uses DPC to achieve its economic objectives. See Lockner on 516. Rx basis test: if law Rx related to gov‟t interest, then gov‟t could restrict activity. See Weaver v. Palmer Brothers on 523. 2 gov;t purposes for the banning of shody materials. One was to prevent spread of disease and the other was to prevent fraud. Both legitimate gov‟t interests. Does the law advance those Rx gov‟t interest? Court said no b/c recycled materials if sterilized do not constitute a threat to health and safety and w/ regard to fraudulent concerns the court said do not need to ban shody to address concern b/c there are lessor actions that can achieve same result (labeling). Rx basis test struck down the law. (Note, this is different form rational basis test). Lockner: DPC state law banned bakers from working more than 60 hrs per week. Reason for law was to protect H&S of EE‟s. Court said test was Rx basis – DPC requires law have a Rx basis to achieving a gov‟t interest. Court used strict scrutiny instead of Rx basis in reviewing the law and could not come up with any justification for upholding law the b/c of individual‟s right to K. Also, Court said they did not believe G was trying to protect H&S of bakers. G protecting labor over business was viewed as C. Parish case??: Court rejected Weaver and Lockner. Court adopts rational basis test. No legislation has been struck down by the rational basis test. Rational Basis Test:
Interests called fundamental – compelling interest/strict scrutiny, Most get Rational basis analysis – fall back test GR: laws restricting substantive interests must rationally relate to some legitimate G interests. Court will not substitute its interests for those of CG‟s. 2 parts: o Must be a legitimate governmental interest o Law rationally advances that interest. Carolene Product Company: CG, under the CP, passed a law saying you cannot ship in interstate commerce “filled milk products”. This company added coconut oil to skim milk - Milnut. This product was banned to protect the dairy industry. CG claims that the product was unhealthy and that the milk substitute products might be mistaken for milk. o Substantive interest being restricted: right to sell milk filled products in interstate market. o Is there a rational relation to legitimate G interest? Health concerns and fraud are the 2 legitimate concerns. But does the law rationally advance either of those ends? Legislative choice is preferred over courts view. So unless there is no justification, the permissive review will say court will uphold unless there is no conceivable justification. Rational means conceivable in minds of legislature that this advances a legitimate G end. Court did not think health concerns were legitimate, but since CG did, they accepted it. Also, did not need to ban Milnut to prevent fraud. Under rational basis, legislature can conceivably believe that it advances the concern for fraud and that is enough. 1937-current: major test for limiting substantive interests. Williamson v Lee Optical: OK passed law protecting mom and pop eye doctors from big chains. o Legitimate G interest: eye health – note that there will always be a G interest. o Is law rationally related – does law advance eye health? Yes. By requiring a prescription on file, it encourages regular visits to an optometrist. But is it necessary? Who cares b/c it is conceivable that legislature may have though that the law advances legitimate G concern. Danielson case: only life insurance agents can sell variable life insurance in S.C. Argument is that there was no legitimate G interest, but that state passed law b/c life insurance companies paid them. Court said it does not matter why law was passed as long as it is conceivable that legislature wanted to advance interest. Skrupa: only lawyers can collect debts. Court upholds law w/o applying rational basis test b/c legislature could have conceived it.
1/12/06: Class Notes ID an issue, see a limiting substantive interest, no other tests seem to be appropriate and left w/ rational basis test. Law that limits interest must rationally relate to legitimate governmental end. Use facts to expand law and show why necessary. This can be done by showing legitimate ends. Law must advance end. It only needs to be conceivable that the law advances the end. Millnut did no in fact advance. Optical the court found that the law was wasteful Regardless, the court said it rationally advanced the legitimate governmental concerns.
Burden of proof is on person challenging state law. Lower court v supreme court application: rational test more successful in lower courts. For example in MO v DayBright – EE are argued that they should be given more time off to vote, which seems to pass rational basis test. ER says that although the EE may be more likely to vote, the ER has no responsibility to make sure people vote – no rational connection b/n being an ER and voting. State court agreed with ER striking down state law on rational basis grounds. Rational basis in relation to economic regulations: Court has used DPC to limit punies: 3 factors court uses in determining excessiveness of punitive damage award o Proportionality b/n compensatory and punitive damages: single digits, but anything more than 4x raises a red flag. o Reprehensibility of the action of D. o Compare punies with civil penalties for that type of behavior. Contract Clause and the No taking Clause: Two types of economic intestes that are elevated above other types of economic interests b/c the C treats them as such in the Article I §10 and 5th Amendment. Contract Clause: Article I, §10: No state shall impair obligations of K o No application to the federal government. If facts show federal law impairing preexisting K obligations, then it is not a K clause issue b/c federal gov‟t can do so. In such a case, then the DP/Rational Basis analysis should be applied. This applies to public or private contracts. But it is limited to states impairment of preexisting contracts. See Blaisdall case: State passed a law saying that if you failed ot pay your mortgage, it would not immediately go into foreclosure….The court said that there was a retroactive change in K rights, but the overriding public purpose justified it Balance pre-exising K rights with valid public purpose. See El Paso v Simmons: TX passed a law taking away unlimited time to cure default, making it only 5 years. Court said that this satisfied the valid public interest that outweighed the harm to changing pre-existing K rights. 1977 Rehnquist Court: o US Trust v NJ: Interstate compact to make travel b/n NJ and NY easier by building bridges. Initial K said sale of bonds to build tolls to recoup expense. Then they entered into a statutory covenant to buy railroads. Then in 1974 the states repealed the statutory covenant. Bondholders sued saying it impaired their pre-existing K rights. Court agreed – although the states had a valid public purpose, it did not relate to bondholders. Court said that the presumption in favor of legislation that normally apply, do not apply when the state is canceling its own K b/c of inherent conflict of interest. o Page 533?; Allied Structural Steel Case: MN passed a law regarding pension plan vesting schedule. Result was that companies preexisting K rights with their EE‟s
were being substantially altered and the Court said this was a violation of the K clause due to one‟s right to enter into private K‟s. Page 549-50: Current aspects of public purpose balancing test - Energy Reserve Case o Energy Reserves v KS Power case: change in preexisting K to protect consumers of natural gas. Court said K Clause is not absolute but must be analyzed via public purpose balancing (see blaisdall…). Elements: There must be substantial impairment: no need to be total destruction of preexisting K rights. To determine if there is substantial impairment you look at; o Rx investment based expectations (i.e. K amount would stand). o Degree to which the gov‟t regulates this particular activity (i.e. G not involved with priced regulation of sale of natural gas interstate) o Severity of impairment: if there is substantial impairment, there must be some significant and legitimate public purpose which justifies such impairment Changes in preexisting K rights must be based on Rx conditions. Court will defer to legislative judgment. Ask if it Rx advances public purpose. balance of interests must be Rx (Blaisdale – preventing loss of homes as a result of great depression). o Exxon Case: AL passed a law adopting a new severance tax to be paid by energy companies, which was a change in preexisintg K rights. Court agreed but it was justified by states interest.
No Takings Clause: 5th Amendment The government, neither the States nor Congress, may take private property for a public purpose without just compensation. Federal law: talk about 5 thm State/Local: 5th and 14th via judicial incorporation “Just Compensation”: market value just prior to gov‟t taking o Compensate for period of denial of use = Rx compensation What is public use? o 1954 Berman v Parker case: if the government wants to pay for it, then it is for public use there must be a rational basis for the public use or benefit, but there always is – “the government can take property for public use where the exercise of the power of eminent domain is rationally related to a conceivable public purpose.” o 2005: Kelo case Eminent Domain used to force sale of private property The takings here qualified as "public use" despite the fact that the land was not going to be used by the public in that private developers were given the land to develop public projects. The Fifth Amendment did not
require "literal" public use, the majority said, but the "broader and more natural interpretation of public use as 'public purpose.'" o State C can say must be used for public and not given to private party. o ***Current law: if the use rationally relates to public interest = private use. This standard allows for gov‟t to take from one private and give to another private, as long as it rationally relates to public purpose. What is a “Taking”: o Eminent domain is a clear taking. o Inverse condemnation – gov‟t is only regulating the use of your property in some way, but the regulation is so severe to your use that it is considered a taking resulting in the need for compensation. o If something is not a compensable taking, then it is a due process rational basis issue…must RR to legitimate gov‟t end. If it is a compensable taking then, gov‟t must pay. o PA Coal case: cannot take coal if affected land above. It is a matter of degree and it is hard to distinguish b/n compensatory and non-compensatory takings. o Euclid Realty case: change in zoning. Not compensatory b/c zoning gives value, so no taking that requires compensation when zoning changed. o Modern approach: 2 per se categories: regulatory and zoning the court will most likely find taking Lucas: when zoning leaves no economically viable use of property, then that is a compensatory taking. Page 551 o Guy buys beachfront property with intent to build homes. Gov‟t said he could not build in fear of coastline erosion. Even though he can still use the property, the principle value was gone. When the court says no economically viable use, it is saying principle use. Court said it was a compensable taking. o Nuisance exception: can be regulated and take away all economically viable use if it is preventing a nuisance to others. o Difficult to determine if there is a total taking. o 562 – Tahoe case: 32 month moratorium on building of homes in lake tahoe area in order to develop a more comprehensive plan for regulating the area. Is that a 32 month taking for deprival of use? Court said no, but did discuss partial takings in some situations can allow for compensation. Page 553: Loretto – physical invasion/occupation/taking if gov‟t physically takes or allows other to physically occupy your property than it is a compensable taking. o G must pay condo owners for right to run lines on outside building. Basically goes to show that no matter how diminimus the invasion, it is going to be a taking.
o Noise/Smells = physical invasion WWII case where planes flew over chicken ranch. Nervous chickens lay bad eggs. Overall approach: Penn Central Balancing – use when 2 per se ones do not apply. Building on PA Coal, the court looks at 3 factors in balancing the competing interests. Is it a regulation requiring rational basis, or is it a taking? Landmark preservation scheme: Penn Central case – Grand central was a landmark so no structure can be build next to it or on it. Those whose rights were denied, were given land elsewhere in the city. Court said this was not a compensable taking emphasizing 3 factors. Factors: o Extent of the taking: how much, value able to use air rights elsewhere, so in Penn case it was not a complete taking. o Nature of the taking: zoning laws are less likely to be a taking o Harm to Rx investment expectation (why people buy the property and how does the act affect that) Penn Central bought Station and denied right to build hotel, but still had railroad station. Key: alternative approach to 2 per se categories to challenge a regulation or zoning that affects the value of property. o Exaction cases: dolan and nollan are not all purpose taking, only to be used with exactions Exactions: conditions imposed on property owner by gov‟t for a change of use. (i.e. make law school wheel chair accessible, lay concrete to make school fire engine accessible.) 2 part test: Nollan case – limits on exactions: owners of beach front property wanted to redesign. CCC, at the time, had to give approval. CCC said no to Nollans until the Nollans gave the CCC a lateral public easement for the purpose of visual access. Though that was their purpose, the reason they gave was to provide perpendicular access. Court said that visual access and taking of beachfront area did not Rx relate to reason given so it was a compensable taking. Court said there had to be an essential nexus b/n what was taken and reason for taking. If CCC said taking for visual access, then that would have been acceptable. Dolan v City of Trigard: Dolan‟s want to expand hardware store. City imposes exactions to compensate for harm caused by improvements. City made her give a piece of her property to the city to address fact that she is developing on flood-plane area. Also she had to give some of her land to pedestrian bikeway b/c with bigger store there will be more traffic so need bikeway to address
traffic. With regards to the Nollan nexus requirement, it was satisfied. Dolan also applies a new requirement: the exaction must bear a rough proportionality b/n the exaction and the harm caused by the change in use. In this case, Court said that the exaction of giving land in fee simple does not bear rough proportionality to preventing additional development b/c e/t she cannot develop, the city still can. B/c not proportional then city must compensate. Bike path addressing congestion kind of works. do exactions address harms cause by use in rough way? Apply these cases only to exactions. o Yi case: rent control of mobile home combination of rent control and inability to kick someone off land was taking. He argued physical per se taking. Court said you should have argued penn central balancing.
Fundamental Rights: May be some things that require a stricter judicial review = strict scrutiny. Some interests get rational basis review, as seen in carolene products case. FN in Caroleene case – restriction on free speech rights, classifications against minority interests these are things where the political process does not work well, so it requires a higher level of judicial review. Strict scrutiny = compelling state interest What kinds of interests get the higher level of scrutiny? o Right to Privacy: DP Clause – liberty cannot be taken w/o DP (5th for state and 14th for federal laws). All substantive interests are protected by the same clause, but those interests get rational basis. What is unique about right to privacy is that it is fundamental justifying higher standard of review. Why is it fundamental? Though not mentioned in the C, there is a prenumbral relationship b/n right to privacy and a number of provisions in the BoR. Provisions in BofR: 1st Am. freedom to believe and right to keep silent/private personal thoughts. 3rd Am. protects you from keeping soldiers in your home. 4th Am. protects from unlawful search and seizures b/c it is an invasion of zone of privacy. 5th Am. privilege against self-incrimination. Griswold: right to privacy is fundament b/c it bears close relationship to rights specifically mentioned. It also said that it is fundamental b/c of past precedent in that past cases have said it is fundamental. Lastly, court says society values right to privacy as a fundamental interest. In particular, they discuss marital privacy. Skinner v OK: law said one who commits 3 heinous felonies should be sterilized. Court was uncomfortable with this law as it violates EPC. Invent fundamental right to raise level of review – right to privacy.
9th Am creates right to privacy: concurring opinion in Griswold. Not helpful though b/c even if there are more rights than enumerated, the C gives no guidance as to their standard of review. Page 618: Granville case
1/19/06: Class Notes No taking clause: actual takings are more obvious then when the gov‟t regulates in a way that diminishes use of property. o Taking of all economically viable use and physical taking are per se o Penn Central Balancing: group of factors considered to determine if it was a taking: extent, nature, and Rx investment expectations. o Note that takings can be retroactive. Right to privacy: most substantive interests get rational basis review. If the interest is determined to be fundamental, then court gives it strict scrutiny. SS requires gov‟t to justify limits on fundamental rights. o CSI Test: Laws that limit fundamental rights must be narrowly tailored to advance compelling state interests. 2 part analysis: Compelling state interest? Is law necessary/narrowly tailored to advance CSI? Must be a close fit b/n law and purpose. Court will ask if there are less drastic alternative means to advance CSI w/o curtailing fundamental interest. o What falls w/in fundamental right to privacy? Right to Marry Zablocki v Redhail: A person cannot get married if in default of child support payments. Court said this law involves fundamental right to marry, so the level of review is CSI. G interest was to encourage fathers to be responsible. But could there have been other ways to accomplish that goal w/o restricting his fundamental right. What about laws saying you have to be 16? Get RB review Most regulations of marriage get RB level of review and most will pass, according to zablocki. Thos that get CSI, the court in Z said that the fundamental right is impacted when there are unRx or significant regulation on right to marry. Do pre-test. Need male/female: nothing in Z case says anything. Contraception: right of married persons to make choices w/ regards to contraception – Griswold. Roe v Wade extends contraception deceptions to include right to make procreation decisions. Limit: majority of court has agreed that minors do not have right to make contraception or child bearing decisions. Carey Case: minority thought that minors had right to make decisions on right to make contraception decisions. Whalen v Roe: whether the right to privacy includes privacy. Law required medical doctors to fill out prescription forms and disclose
patient‟s medical information. Court said the right to privacy might include their medical records confidential. The court held that there were sufficient controls on the use of the info that it did not invade the right to privacy. There was a CSI of controlling distribution/manufacturing of illegal drugs. Lawrence case: sodomy – do consenting adults have right to engage in desired sexual acts. Law struck down on rational basis grounds. Child rearing: Moore v City of East: Can only live together if member of family. Right to privacy includes child rearing choices, but which choices fall w/in that? Michael H case: law in CA that presumes the husband is the father of children born during period of marriage. This is not a fundamental right to child rearing being implicated here, so only rational basis test is used. Law restricting right of natural father must only rationally relate to some legitimate gov‟t interest. Gov‟t interest here is to protect the sanctity of marriage. Older tradition of family take precedent to child rearing rights. Troxel v Granville: Parents separated and mother did not want kid to see paternal grandparents. WA law gave grandparents visitation rights. Court said that it is not true that all laws giving grandparents some visitation rights are unC. But here, they did say the wishes of the grandparents are not as important as the wishes of the parent. Abortion Roe v Wade: TX criminalized abortion. Court used trimester system w/ different rules in each trimester. In the 1 st, it was the choice of the female and her doctor. Court applied CSI and at that point G had no interest in fetus. In the 2nd trimester, court recognized the greater risk to life of female and court said it may prohibit abortions at this point b/c of potential CSI justifying CSI. In the 3rd trimester, the fetus is viable and G now have a CSI that needed to be protected. Even then, if it was life/death, the female is saved over fetus. Casey: Upholded essence of Roe v Wade. Abandoned the trimester approach and the key was the point of viability due to advances in medicine. Prior ot the point of viability, the test is undue burden. The state can not place an undue burden on females choice to abort. After viability, the G has a CSI to protect. Other types of regulations on abortions: o Record keeping requirements on doctor: Court has upheld as consistent with CSI most of these record keeping provisions, except those provisions that made public key information about abortion which allowed the identity of the female to be determined. In those cases, the fundamental right to privacy was violated.
o Medical procedure requirements: court has struck down most of these limits, including limits on partial birth. It is up to the doctors to choose right procedure. Some exceptions exist when the medical procedure is intended to protect a viable fetus (late 2 nd term abortions after point of viability) – regulations allowed and upheld by court, such as requiring the presence of a 2 nd doctor present to protect life of viable fetus, but only when there is a life emergency situation. o Additional test requirements to confirm fetus is not viable: for late 2nd term abortions these requirements have been upheld. o Spousal notice requirements: court has said the father of child do not have the right to consent/notice. o Parental consent/notice: states can impose limits when minor is involved. This is ok, but there must be a judicial bypass option. Instead of parent consenting/notice, a judge can decide that minor alone can choose. Note that the judicial bypass must contain 2 elements. The judge must be able to make the following choices: 1. must provide judge with option of deciding that the minor is sufficiently matured to make own choice, and 2. even if minor not sufficiently mature, then in the best interest of the minor an abortion is allowed. Undue burden leads to different results than Roe. UB is claimed to influence decision. Court in Casey says state in waiver requirements is not much of a burden. Key test is UB.
1/24/06: Class Notes Harris v. McRae and Mayor v Roe: funding decisions w/ regards to abortion decisions get the rational basis level of review. G has the right to make decisions for indigent decisions. Russ v Sullivan: no information can be provided by Planned Parenthood with regard to abortions if want to get federal funds. This was challenged on free speech grounds as well as a violation of female right to choice. Since this was a funding decision it got the rational basis review, and G has rational basis in depriving info by promoting full term pregnancy over abortions. State of MO said state hospital cannot perform abortions if want federal funds. Level of review under Harris and Russ was RB. Advance G interest in protecting life of fetus and promoting full term pregnancy. Equal Protections: Very similar to the DP/Rational Basis Level of Review: EPC v DPC
Railway Express Agency v. NY: ban on ads on sides of vehicles for products you do not own. o DP analysis – laws limiting substantive interest must rationally relate to legitimate gov‟t end: Substantive Interest: right to use your own vehicle to advertise Government end: traffic safety and need to limit distracting ads. Is that legitimate? Yes. Ban rationally advances the legitimate gov‟t end. o EP: better argument here than DP classifications do not rationally relate to legitimate gov‟t end. Law says that you can have ads for yourself, but not for others. Does this classification rationally relate to legitimate gov‟t end of traffic safety? Court says that ads for others are more distracting than ads for self. You test the law as it generally works. If 90% of distracting ads are for others, as a matter of efficiency, better to focus on biggest problem. o Overall, restricintg on ads can be found to rationally advance legitimate gov‟t interests, but the law is more vulnerable under EP grounds. Williamson v Lee Optical: o EP challenge to law: If the concern is regular eye health, all people who use readers can just walk into store, self-diagnose and buy their own glasses w/o going to the doctor. Is it illogical to exclude whole class from regular eye exams? There was a legitimate gov‟t interest of eye health, but there was no relationship. Why leave out self-diagnosed group? EPC does not require people/classes be treated alike. Here, the better argument was DP. MA v. Mergio?: Police officers over 50 have to retire. Classifies based on age. EPC gets a rational basis level of review. Classification must RR to LGI. G is looking for more fit police officers. Age RR to more fit police officers. But an officer comes around who is 49 and is most fit. Only matters that the overall law is accurate! Law needs to be rational!! FCC v. Beach Comm: see IR Outline Heller v. Doe: EP issue b/c the law classifies mentally ill vs. mentally retarded lower burden to institutionalize retarded. o Good use of rational basis test It is easier to diagnose mental retardation.
1/26/06: Class Notes Penbrook: theory of Rx classifications laws can be overinclusive…rational basis test does not require 100% accuracy. Central State University v AAUP: univ professors cannot engage in collective bargaining. US R&R Retirement Board v. Fritz: current connection can be a factor, but if you were the person who had worked for 19 years, you would not think this was fair. Schweiker v Wilson: RB passed b/c it was enough that they might have?
Morey v Doud: reversed in Duke: closed classification is one which no one else can enter no one else can become AMEX. In Duke, court said closed classifications are allowed and you apply RB test. Legitimate G purpose was to preserve the French Quarter so it was ok to prevent the selling of hot dogs in carts that had not been there for more than 8 years. 8+ year carts became closed classification. Race Based Classifications: see Gillian outline also suspect and quasi suspect classifications History: STratter v West VA in order to serve on jury you needed to be a white male citizen over 21. Classifies on race, gender, citizenship and age – classifies on 4 grounds. For 3 it was C based on RB test. But race, Ct said, there is a special historical commitment of the 14 th amend to prevent race-based classifications. Other grounds need only relate to LGI. Modern: Korematsu case Classifications based on race are inherently suspect and are subject to and can be justified only by a compelling state interest (pressing public necessity was the language of the court). CSI requires a strict scrutiny test. Remember, fundamental rights get strict scrutiny review as well. Why are race based classifications suspect? Plessy v Ferguson: law: passenger compartments in trains be segregated by race. Ct holds “separate but equal” is not race-based classification violation of 14 th b/c promotes equality by not denying EP. This remained the law until Brown v Bd of Education in 1954. Loving v VA: law: prevented racially mixed marriages, so couple left state to get married and came back, they were convicted. Holding: (1) marriage is a fundamental right, so CSI applied. And (2) preventing marriage solely on racial classifications violates EP clause. EPC precludes race being used as a classifier absent satisfying the CSI test. Law must be narrowly tailored to advance a CSI. Narrowly tailored means there cannot be less harsh ways of advancing the CSI for it to satisfy the relationship part of the test. Palmore v Sidoti: white mom who married black, should lose custody of son? SC said race cannot be used for custody decisions. Preemptory challenges: Batson v KY not allowed to use race as a factor See Yo case Johnson v CA: CA court said can racially segregate in prison system b/c it passes the CSI test. SC said there are less drastic ways of preventing race based violence so the law is struck down. Dissenting judges applied the RB test and said segregation rationally relates to penal concerns. Usually for prisoner based regulations RB was the appropriate test. Race or ethnic origin are treated alike. Separate but equal challenges; plessy v ferguson creation
1/31/06: Class Notes
School Cases: Plessy: Separate but equal did not violate EPC Brown v Bd: SBE is unequal G cannot classify based on race. Bowling v Sharpe: segregation in Washington DC schools. Argument was that 14 th was only for states, and not for federal gov; 14th amendmenet only says that no state may deny equal protection. CG is controlled by the 5 th amendment. 5th has no express EP clause, but CG cannot deny due process under the 5 th and the due process includes other parts of the C, such as an equal protection component which is the same as the EPC of the 14 th. Ct said EP clause is implied in 5 th to the federal gov Brown 2: remedy --> all deliberate speed Green: integrate now! Swan v Charlotte: federal court had ability to use all remedies that are Rx, feasible and workable. Race as a remedy for correcting wrongful race based segregation is ok. Strict use of race to achieve racial balance is not the point. Any remedy where you overall Bussing to achieve racial integration: as long as it was rx…then it can be used to achieve desegregation. Swan emphasizes that the federal cts only have authority to remedy C violations such as state imposed segregated schools. This is de jure segregation, the result of G acts. Cts cannot touch/remedy de facto segregation, the result of societal decisions people make. As a result fed cts have no authority to remedy most segregated school systems. Keyes v Denver: de facto v de jure Alleged that Denver school system was segregated as result of de jure acts. Laws were racially neutral, but still de jure b/c state took race based steps to draw lines. Columbus and Dayton cases: can court order remedy for segregated school system? In Brown 2, the court said the school bds have the affirmative duty to remedy de jure segregation and operating school on a neutral basis does not meet that affirmative duty. Since segregation was a product of pre-54 acts where schools intentionally segregated, then school board has duty to remedy all vestiges of de jure segregation. Remember federal courts can only remedy C violations (de jure). C violation/ de jure twists: Milliken v Bradley Detroit operating a race based de jure segregated school system. Court said the only remedy possible for de jure segregation is to combine Detroit school system w/ the much larger suburban districts. Then court said that cannot be done b/c court can only remedy C violations. No proof that suburban lines were a C violation. Scope of remedy must meet the scope of the violation. Pasadena v Spangler case: de jure de-segregation occurred, then over time de facto segregation occurred. Court held that federal court cannot fix the issue b/c once the de jure segregation has been remedied then federal court loses authority to act. Dowel case: if school board has made a good faith effort to eliminate the last vestiges of de jure segregation to the degree practicable, the federal courts lose authority to do anything further. Any later segregation that is a product of de facto segregation is not subject to federal ct remedy. Pitz case:
MO v Jenkins?: remedy for de jure segregation federal court has authority, but it should not use its authority unless no other remedies are feasible. F court can order state to fund school sytem by an additional 400 million, but it should let the state decide how to do that. Then if the state does not act, then the federal court can intrude further into state affairs. Here, the remedy was not /in the scope of the violation. C Violation: state int‟l creating a segregated school system!! And any remedy must be ltd to correcting the wrongs that result from that de jure segregation. US v Fordici: Desegregating universities schools run on race neutral basis Was it enough that they ran colleges on race neutral basis, or were they under an affirmative duty to remedy de jure segregation, particularly in all black colleges. Court said MS had affirmative duty to correct historically created segregated school system. 2/2/06: Class Notes
GENDER BASED CLASSIFICATIONS: Stratter v WV: Cleary: no women bartenders to protect women. Reed v Reed: law classified persons who can administer an estate of a minor DCT. Classifies as to relationship and gender. What level of review for classifications based on relationship? Parents over uncles must rationally relate to legitimate G interest. Want the person closest to child to administer state. Parents are presumed to be closer so this passes the RB test. Gender: law prefers men over women. Ct still applies the RB test. The interest is efficiency. Ct concluded that it failed the RB test. Cannot just prefer, needed to actually conduct a hearing as to who the best person was for the job. RB test applied in a different way then before. No more deferential review… Frontiero v Richardson: military gave more benefits to dependants of male members than female members. If male, their dependants automatically got benefits; if female, their dependants got benefits only if she can show she fully supported males. This law discriminates against both genders depending on where you focus. 4 justices apply CSI and 4 apply RB test. Stewart said the law is “invidious discrimination” and any level of review that is applied fails. Craig v Boren: classifies based on gender as to when one can drink 3.2 beer. Court used an intermediate test (b/n permissive RB, strict compelling). Classifications based on gender must substantially relate to an important G interest. 2 part analsysis. (1) End – is there an important G end. Modern says, narrowly tailored (CSI – necessary). Balance state interest and need to use gender based classification. Make sure to consider Rx alternatives. (2) it has to substantially advance an important G interest. End: highway safety. Substantial Relationship: No. Are there any Rx adequate alternative?
Do craig v boren and exceedingly persuasive tests. CLASSIFICATIONS BASED ON PREGNANCY: treated as a medical condition, so gets RB level of review. Nashville Gas Co.: leave based on pregnancy did not get same amount of money as other reasons for time off work. Court followed Aiello in part. Court said benefits got a RB level of review and that is fine, but burdens based on pregnancy got a different level of review? Aiello and RB review for classifications based on pregnancy and RB review is still good law. Michael M.: Michael M., a 17 and 1/2 year-old male, was found guilty of violating California's "statutory rape" law. The law defined unlawful sexual intercourse as "an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years." The statute thus made men alone criminally liable for such conduct. Michael M. challenged the constitutionality of the law. Craig v Boren intermediate level of review: no substantial relationship? The different treatment of males and females bears a fair and substantial relationship to the important governmental interest of preventing illegitimate teenage pregnancies, which is one of the purposes of the law. Micheal M – CA law: crime for man to have sex w/female under 18 whom he is not married to. But it not a crime for a woman. A 17 year old had sex w/ girl under 18. Gender based classification. The gov. end is to address teenage pregnancy. Relationship: sub relates b/c women have disincentive to have sex b/c of pregnancy and in order to prove the crime, you need a witness, so the girl can be the witness. Ct granted deference to the legislature. Law upheld by mid level test Rostker v. Goldberg – law: males must register for draft, females don‟t. Upheld under mid level test b/c it‟s C to exclude women from combat since that‟s the point of the draft (get combat troops). Miss University of Women v Hogan: JEB v Alabama: geneder cannot be basis for exercising preemptory challenges same as race. US v VA: exceedingly persuasive justification test v. craig/boren test (substantially related to…) courts tend to use both tests. But focus on craig analysis.
2/7/06: Class Notes
Law is neutral. C is not considered suspect. (Gender is quasi-suspect). No fundamental rights involved so level of review is RB. But the law has a discriminatory impact based on race or gender. How is the law treated?
WA v Davis: Police officers needed to take a test to qualify to become a PO. EPC issue b/c it classifies people who pass/fail. This gets the RB review in that the classification must RR to legitimate G end. End is more qualified PO. But what if there is no proof those who pass are more qualified? E/t there is no proof, it only need to RR. It is rational to deduce that it might lead to better PO. But the law has a disproportionate race/based impact. RULE: Still apply RB level of review to neutral law having a disproportionate race or gender based impact. o What if law is neutral, but passed for the very purpose of excluding people based on race? Per se invalid. Do not even need to apply RB or CSI test. Think school segregation via state creation. Need sufficient facts to prove (Yick Wo had enough facts). OK case: OK says you have to pass a test to vote. This law was passed for the purpose of race based exclusion from voting. Yick Wo v Hopkins: SF law required wooden laundry mats to be licensed whereas brick ones didn‟t. The rational relationship is fire, but the line also had a disproportionate impact on Chinese people in that they owned 80% of wooden laundry mats and 90% of brick laundry mats were owned by non-Chinese. This is a clear disproportionate impact but by itself not enough to hold the classification per se invalid. But, in the case, all Chinese wooden laundries were denied permits whereas all but one non-Chinese wooden laundry mats were granted permits. o Statistical analysis and absence of legitimate explanation lead the court to believe the law was passed out of racial hostility. Using WA v Davis language, the law was per se invalid. Jefferson v Hackney: state welfare statute had categories for elderly, blind, & dependent children. Elderly got 100% of need, blind 95%, depend, kids 75%. In old & blind categories, 40% are racial minorities, but in dependant kid, 80% are minority‟sdisp. impact. o RB level of review b/c no suspect classification and no fundamental right involved. Under RB only has to be conceivable that lawmakers thought that children or blind could supplement income. o RB unless you can prove the purpose of giving different levels of aid was due to split due to race. Then per se invalid. Need statements indicating racial bias w/ no legitimate interest. ER‟s and no job if have been arrested? Palmer v Thompson: Village of Arlington Heights – (level of review is RB unless discrim intent shown). o Disproportionate racial impact: court talks about the kinds of evidence you would need to show that the big house/big lot was enacted to exclude people based on race. Only looking for evidence relevant to the fact that the law was based out of racial or gender hostility. o How prove purpose: disproportionate racial impact is not enough to say per se invalid by itself. Look to absence of legitimate reasons. Look to historical background. Look to the specific sequence of events. Look to the departure from procedural or substantive norms. MA v Freeney: classifies based on if you were a veteran. Interest was to reward your service to the country. This would pass the RB test. Disproportionate gender impact is
that 98% of veterans were male. Still RB test. Any evidence this law was passed for purpose of gender based exclusion? No. Discriminatory gender impact alone is not enough to move it from RB to per se invalid o If you have a race based classification in the law, the court will almost always apply CSI. HUnter v Underwood: you commit a crime of moral turpitude, then you lose the right to vote.
Jury pools: Mobile v Bolden: Rogers v Lodge: Key difference b/n race and gender based C. Gender gets intermediate level of review. Race based affirmative action C, benefit or hurt, get CSI. Laws hostile to women are harder to be struck down, but law favorable to women are easier to uphold. 2/9/06: Class Notes Per se approach not typically used when C based on race/gender. The court used their respective tests instead. Exception to that is the early race based segregation cases where the court said segregation is not equal. Modernly though, per se not applied. Bolden: race can‟t be used as a basis for voting. Standard under the 15 th is the same as the 14 th. Disproportionate impact is not enough. Need to show if law is neutral that it was passed with discriminatory intent or ??/. Rogers: Disproportionate impact: Anytime see race CSI Gender Intermediate Per se: no legitimate argument for use of race or gender. VA case: law against interracial marriages. Court could have said per se, but did not. Neutral case: fall back is RB. AFFIRMATIVE ACTION CASES: Gender based AA: Gender based C, hostile or not, will get craig v boren intermediate test (substantially or exceedingly). Kahn v Shevin: tax law favored widows over widowers. Court gave it a RB level of review b/c it was a tax law. Ballard case: in military, women treated more favorably for purposes of promotion. Court said reason for discrimination in favor of women was to make up for discrimination not in favor of women elsewhere, like women being precluded from combat. Upheld the law.
Califano v Webster: Key Case when law favors women over men o Soc. Sec. retirement program where women have a more favorable formula than men. Women don‟t have to include their first 3 years of lower wage-earning years, but men do. This makes women receiving higher retirement benefits than men. Upheld b/c: Test: mid level test. Gender based class satisfies mid level test when making up for past discrimination is a sufficient interest. Reason for law was to make up for societal discrimination Note there was no Rx alternative end. Orr v Orr: Only men had to pay alimony. o Apply Intermediate level of review. Look for important G interest. The interest, like in Califano, was to make up for historical economical disparity. Califano said that was an important G interest. The law must be substantially related or narrowly tailored to advance that end. Are there Rx alternatives that could advance that end w/o using gender? You could look at income instead on a case by case basis. See Benno re: different standards o Necessary to advance - look forRx alternative v substantially related or narrowly tailored – 1st one is strict scrutiny, second is intermediate. Hogan: Man denied from nursing school. Argument was that it was to make up for past discrimination, but historically there was not discrimination against women in the nursing field, so it failed the test. o Making up for past discrimination can be a reason to pass the intermediate test, but it actually has to be the reason why the law was passed! Johnson case: city gave dispatcher jobs to females over males when both male and female candidates were equally qualified in order to achieve diversity (no other women in transportation dept.). Man sued and lost. o SC Analysis: Diversity purpose passed mid-level. Advantage given to women was limited, disadvantage to men was small. o Laws that advance women get softer version of intermediate test.
Race Base AA: Use of race to create race based wrong is easiest type of AA law. Political process stuff Bakke: UC Davis Med. School kept 16/100 seats only for minorities (based on race), anyone could get the other 84. To get a minority seat, didn‟t have to meet standards everyone else did. Bakke met standards, was definitely higher than the minorities, but denied. SC: admissions based on racial quotas are unlawful too inaccurate & give an absolute preference based on race) and to let Bakke in but it is not unlawful to consider race at all. o Test for benign race based classification is CSI: Absolute preference (racebased quotas) does not ever pass CSI when making up for historical race discrimination, but some benign consideration of race might o Applying CSI: race can be considered as a factor among other factors in order to achieve diversity, but race can only be 1 factor, as opposed to the absolute factor. Racial quotas are not allowed.
Fullilove: Federal gov had 10% set aside for minority contractor‟s b/c of past discrimination. Upheld by the court for 2 reasons (1) the set aside amount was a moderate use of race based preference, only 10%, and (2) the Statute provided a waiver of the program if no minorities were capable of doing the work. The law was not making up for general historical discrimination, rather for specific race based practices in a particular industry. Wygant: Program would add minority teachers to make up for past discrimination. Concern was in economically bad times, last teachers hired under this program would be the first to go b/c of seniority. Thus, in economic turndowns, the same ratio of majority/minority persons would need to be maintained. So agreement exists that requires for the school to maintain the same ratio. This results firing based on race. o Court: hiring decisions are different than firing decisions. Invalidated this AA e/t there had been race- based discrimination in hiring in the past b/c places too great a burden on majority persons. Richmond case: city council voted a 20% set-aside program. Contractor needed to hire 20% minority. Court struck it down for 3 reasons (1) 20% is too high, (2) no showing that racial discrimination led to 20% of minorities losing jobs – remedy did not match injustice, and (3) no waiver provisions – absolute race-based preference. o Also looked at political processes. Congress is made up of white males. City council in Richmond is made up of black folk. City laws apply CSI. Metro case: federal laws get the intermediate test – political process correct abuses. Diversity in broadcasting is an important G interest and race can be used to achieve that. Pena case: Fed gov‟t had practice of giving general contractors on gov‟t projects a financial incentive to hire subcontractors controlled by “socially and economically disadvantaged individuals”...despite framing, race was the main factor, was a race-based classifier... while all minorities were presumed disadvantaged, there was a race-based presumption that whites had to overcome. Ct of appeals rejected claim based on intermediate scrutiny. o RULE: Supreme Court said that ALL RACIAL CLASSIFICATIONS GET STRICT SCRUTINY (CSI) no matter who they apply to and no matter if they fall under 14th or 5th equal protection Univ of Mich: (2 cases) Purpose: Diversity in education satisfies CSI. Relationship (problem): is the use of race narrowly tailored to satisfy CSI? o Undergrad: being a racial minority gave students a lot of extra points. Being a racial minority basically got them admitted automatically, the goal was OK, but it was not narrowly tailored (too much preference) o Law School: Admission system looked at combo of everything, being a minority was just a positive factor in the total admission process. Ct said: Relationship: Too much of a race based preference fails CSI, but some limited preference is OK in CSI. o Some race as a factor is allowed, but race as a determining factor is not allowed. o
2/14/06: Class Notes
Additional Classifications: Classifications based on alienage: all C based on ethnic origin get CSI. Alienage is different. Graham v Richardson: State law said aliens did not get welfare benefits unless in the country for 15 years. This got the CSI level of review. Court said that fiscal needs were not CSI. Examples that get CSI review: o State laws stating only citizens can have civil service jobs o State laws stating only Citizens can be members of state bar o State laws stating only Citizens can be civil engineers. Only citizens can be police officers or teachers RB test. Some C based on alienage get CSI and others get RB. Why are these different? They fall into the political function exception. In applying the RB test, the legitimate G end is getting someone competent and loyal to the job and citizens are more likely to have the skills than non-citizens. Need not be true, just needs to be conceivable. o Political function exception – what applies? Important State and local jobs that involve fundamental aspects of our G – and the person that holds the job must have a high level of discretion (teacher, cop, probation officer). o Test: State job – important – high level of discretion Notary: no discretion, not that important Matthews v Diaz: Federal law o RB level of review. Why give CG‟s actions a different level of review? Reasoning – Const gives Congress certain enumerated powers and among those is the power to pass uniform rules of classification. State laws involving state jobs and private entities get CSI. State laws that fall into political Fx exception get a RB level of review. All federal laws get a RB level of review. Classification based on LEGITIMACY: Birth status 1. Levy v. LA: NY law saying illegitimate children could not collect tort damages for the wrongful death of their mother and mothers could not collect for the wrongful death of their illegitimate children. This was to encourage legitimate families and the stability that comes from a marital relationship. Court applies RB and struck the law down. 2. Labine v. Vincent: NY law said illegitimate children could not inherit through intestate (w/out a will) secession from their fathers unless the father had formally acknowledged the child during his life. Concern is for fraud & false claims. Court upheld the law for 2 reasons: concern for fraud – harder to know that this was the real father when he is dead, and father should have left a will b/c intestate succession laws reflects DCT‟s desires. 3. Mathews v. Lucus: SC upheld provision of Social Security Act that gave automatic SS benefits to legitimate kids who survive the wage earner however illegitimate kids had to prove dependency. SC upheld b/c purpose was to benefit dependant children and the law was substantially advanced. Burden on illegit not that great even though treated differently. It survived mid-level review, but would not have passed a higher level test like Craig v. Boren (even if similarly framed)
4. Trimble v. Gordon (1977) – SC deemed unconstitutional IL law that prevented nonmarital children from inheriting from fathers who died intestate unless the child was acknowledged by the father marrying the mother. Court applied the intermediate test. C based on legitimacy must be substantially relates to legitimate G end. Court said the law was too restrictive b/c it required actual marriage to legitimate the child. 5. Lalli v. Lalli and Clark v. Jeter (Most Important Case): 2 identical laws. The law did not impose a flat ban on illegitimate children inheriting from deceased fathers through intestate secession. An illegitimate child could inherit if two requirements were met: (1) There must be a court order prior to death stating that the father recognized the child as his own; and (2) The court order must be w/in 2 years (Lalli) or 6 years (Clark) of the birth. Reason for this law was that you want all of this resolved while the father is still alive. a. Test: Substantially related to permissible G end – This is the other intermediate test? This is used in cases of illegitimate children. It is easier to satisfy. 6. Clark v. Jeter: PA law = illegitimate child must prove paternity by age 6 to be able to seek support, while legitimate child can do it anytime; a. Court Struck down the classification b/c failed intermediate scrutiny and Strongly implied that the illegit child had up to the age of majority to establish paternity (although did not explicitly hold this). 7. Law – mothers v fathers: level of review is intermediate or exceedingly persuasive level of review. In applying it, most laws will fail. However, laws that frame the issue in terms of custodial status will get a RB level and will most likely win. Custodial status refers to persons who take an interest in the child. MORE FOCUSED RB TEST: Law that says need group zoning to build a fraternity. But if want retard center, then need more specific approval. Cleburne v. Cleburne Living Center: TX municipal ordinance required homes for retards to get special permits, while other „multiple family‟ dwellings didn‟t; Held: unconst. Under RB (not suspect/quasi-suspect class or fundamental right so no higher level of review) o Test applied RB test but more focused b/c the only purpose for the law was animus against retards. Struck down the law as not founded in legit purpose. o They were discriminating based on unjustified queasiness of retards o This is the strictest application of RB we‟ve seen so far (compare to case where mental illness/mental retard classification survived RB). Romer v. Evans (1996) – An amendment to the CO constitution prohibited all legislative, executive or judicial action at any level of state or local government designed to protect homosexuals. o Classifications based on sexual orientation (neither a suspect classification nor a fundamental right) they get a RB level of review. o CO justification was that by elevating things such as homo‟s to the same level of other highly protected classifications, it would weaken the abhorrence held against classifications such as race/ gender. o SC rejects this justification. Ct felt that this was not the real purpose behind the law. Ct felt the real purpose was to pick on homosexuals
Clebourne, Romer and Lawrence cases: Dept of agriculture cases: CG attempt to modify federal food stamp programs in order to preclude hippies. Court struck down. Lawrence v Texas overruled Bower: TX law criminalizes homo acts. No conceivable justification for interfering w/homo acts. Maj: DP & RB test, struck down statue. (O‟Conner :EP & More searching RB approach should be applied). Ct said Bowers was wrong, but applied same approach! Test applied is MORE SEARCHING RATIONAL BASIS. Same approach taken in Romer v Evans – real purpose is to hurt w/o legitimate end. Phyler v Doe: TX law denied children of illegal aliens the right to free legal education. What is level of review? C is illegal alien. Alienage cases do not apply b/c those deal w/ legal alien status. Here, since deprivation of education was involved, level of review should be heightened. 1. Different RB Test applied: law must rationally relate to substantial state interest. a. McG treats it as a version of the More Searching RB Test, BUT b. Some treat it as an application of the Intermediate-Level Test (like that in classifications based upon illegitimacy). 2. Held: Struck down TX law, because its there to hurt children Metropolitan Life Insurance v Ward: case involving strictly economic interests. Out of state ins. Companies were taxed at a higher rate, authorized by CG. Is this a violation of EP clause? Court said yes. RB test applied saying no reason for treating them differently. More searching RB approach: why law passed and ct looks to connection w/ purpose. How do you know which approach to apply? We don‟t. 2 different RB tests Start with the traditional RB test. Whenever see a C or interest and no suspect or quasisuspect and interest is not fundamental, then apply traditional RB test with presumptions in favor of law and look for conceivable purposes. If you have facts that parallel, then mention parallel and apply more searching RB, especially if a more searching analysis will lead to different results. Key facts in these situations is that the law has singled out a disfavored political group, often powerless, for disparate treatment principally to dislike of that group. When would they lead to different tresult? Heller and Cleburn: both treat retarded people differently. FUNDAMENTAL RIGHTS THAT FLOW FROM THE DUE PROCESS CLAUSE – 5TH OR 14TH AMENDMENTS Right to Privacy: prenumbral relationship to BOR, past precedent and societal value. Right to Vote Right to travel
RIGHT TO VOTE: Fundamental b/c of relationship to amendments in Constitution, past precedent and we value it. These are voter qualifications cases o Harper v Board of Elections: right to vote is fundamental. Poll tax was struck down b/c it was in violation of right to vote. o Dunn v Blumstein; 1 year residence requirement in order to vote. Struck down o Marston v Lewis: 50 day residence requirement. It is constitutional to have a day requirement b/c you need to get an accurate voting list. o Richardson v Ramirez: not a violation of EPC when denying felons right to vote b/c §2 of 14th amendment allows for it. Now let‟s discuss reapportionment cases. o Art I, § 2, cl 3: every 10 yrs there must be a census and reallocation of members of the House of Reps among the states according to population shifts. o Baker v Carr: o Reynolds v Simms: federal level require 1 person 1 vote and at the state level the houses have to be equally divided based on population. EP requires 1 person 1 vote Baker v. Carr (concerned w/population of district) o Federal re-apportionment Standards: “as nearly equal as is practicable” to one person = one vote to pass EP Struck down variations in district size that is as little as 1% o State re-apportionment Standards: “substantial equality” to one person = one vote to pass EP Upheld variations in district sizes as much as 16% Karcher case: .69% difference. Super majority: not in violation of EPC. Miller v Johnson: racial gerrymandering in order to advance the interests of minority candidates for CG. Race was the factor. o Race as synonymous with democratic voter is allowed. The use of race as a predominate factor in drawing districts is not allowed. This is like the MI AA cases where too much use of race was not allowed. A gerrymandered district that is so partisan as to defeat an identifiable group could violate the EPC. So what is the standard when it comes to race and voting? Court in Vieth v Julien said Davis does not work, though not completely counted out. Right to vote is a RB test. State can restrict 3 rd party candidate access to ballot as rx necessary to the needs of the electoral process. Bush v Gore:
2/21/06: Class Notes Last of the fundamental rights court has created from DP clause Right to travel interstate is a FR b/c of relationship with other clauses in C (commerce clause, past precedent of court,
Shapiro v Thompson: limit welfare to those who lived in state for 1 year or more. Classifies people based on satisfying durational residency requirement. Ct said this impacted the right of poor persons to travel. This gets CSI when durational residency penalizes the FR to travel by impacting the necessities of life or other FR (vote). Sosna v Iowa: Durational residency, but for a good reason. No penalization on the right to travel. The purpose was a state‟s J over divorce cases. Jones v Helms: need to have both DR impacting the necessities of life in order to have a FR to travel issue. Village of Arlington Heights: even if have necessities of life, there was no durational residency. Need both. Bonafide residency requirements do not violate FR to travel. What does is durational residency. Just simply residency requirements does not violate right to travel. May need it for purposes of employment. Other, non-principle cases: plurality of the court will take a more expansive view of the FR to travel. Zobel v Williams: amount of tax money given back depended on # of years you lived in Alaska. Atty General of NY: residency only if there at a specific period of time. Some justices applied the more searching RB. Williams v Vermont: sales tax difference some apply CSI and others apply more searching RB. Saenz v Roe: instead of taking the FR to travel, EP, CSI approach, the court views a CA law as a P&I 14th amendment issue. McG thinks they should have said it was a FR to travel issue like in Shapiro. Court says it violates P&I clause in 14 th. o 14th Amend (protects lesser interests): “No state shall make or enforce any law which shall abridge the P&I of citizens; nor shall any state deprive any person of life, liberty, or property, w/out DP; nor deny to any person w/in its jx the equal protection of the laws.” This was only the 2 nd time the P&I clause was used. The P&I clause protects four lesser rights: The right to petition the central government for grievances; The right to protection while in the custody of a U.S. Marshall; The right to sail the navigable waters; and The right to travel interstate. o Holding: Law impacting travel interstate violate P&I clause in 14 th amendment. Where are we: laws that impact right to travel viewed as violation of 14 th, but also those that have durational residency that get CSI. If have a RTT issue then primarily treat it as an EP issue, and RB if something? Keep open P&I analysis.
Metropolitan Life v Ward: RB test used to strike down an economic interest. New England Bank case: Review of FR to travel: very narrow FR. To have it means you need both durational residency and necessities of life or other FR. Penalize RTT, CSI, EP issue. DR by itself if not enough. Residency alone is not enough. However, something else about residency which I did not hear. Wealth based classification: RB level of review. those cases that combine with procedural due process gets EP level of review, CSI. Fees that people have to pay for various types of hearings. Boddie v CT:
2/23/06: Class Notes FR to Travel approach: need to reconcile old w/ new cases. To do so, emphasize the EP material and then mention Saenz as an alternative approach. Shapiro v Thompson approach shows you how narrow this right is. In order to have this right, you need to have a penalty on that fundamental right to travel interstate. Penalty includes durational residency and a necessity of life. DR penalizes the FR to travel when it impacts a necessity of life. Bonafide residency requirements do not impact the FR to travel in dealing with necessity of life, as it gets a RB level of review. Currently, there is a plurality of the court giving a more expansive view will applying a more searching RB test. Williams case talks about length of residency not DR. See also Saenz. Talk about violation of P&I violation, though Saenz does not give you a level of review. It just mentions that the P&I clause protects the right to travel interstate. Wealth C: not a suspect C, e/t the courts have said they are. Cases where the ct has struck down laws that disfavor indigents as to the right to a fair hearing. Griffin case: right to free transcript Douglas case: right to furnish an indigent counsel on 1 st appeal. EP concerns that the poor have equal rights and right to fair hearing meant that indigents had right to 1st appeal. This flows form procedural DP concerns and EP concerns. Criminal D‟s have no right to counsel on subsequent appeals. Boddie: right to be heard + EP concern so filing fee must be waived when filing divorce. Kras: when it comes to BKR, fee not waived. Streater: indigent fathers have right to free blood test when trying to prove paternity, or lack there of. This is a civil case. This is a combination of EP concern, fair treatment of indigents and right to be heard. Lassiter: when dealing with a termination of parental rights, parents may have the right to counsel in appropriate circumstances, like when it is a contested case or is complex enough to justify. Rt to fair hearing. Parents subject to termination of their parental roles will get free transcript for their appeal if they are indigent. EP and Procedural DP.
Indingency: procedural DP and right to free hearing concern. Denial of right to opportunity to be heard violated EP and procedural DP. Dandridge: welfare money is capped at $250 per child only for the first 4 children. Welfare gets RB level of review. RB is that larger families economize. Harris v McRae: G spending decisions concerning abortions for indigent persons get RB level of review. GR is that these are CSI, but G funding decisions are treated differently. It is not a FR to privacy issue. Lyng v Castillo: court defined the “household” when determining how much you get in food stamps. A single household gets less then multiple households. End result is that related persons in same house are single and unrelated in same house would be multiple households. No FR and no suspect classification. This gets RB level of review and rationally people living together as a family are more likely to share food. PROCEDURAL DP: San Antonio Schools case: should local property taxes fund local schools? Result is that wealthier the property in your school district the more money for the schools in that district. Is that a violation of EP clause due to unequal funding of education. It was argued that this was a wealth-based classification, so its suspect getting CSI. Court reject this, held that the law did not classify on wealth. Next it was argued that education was a FR and should get higher level of review. The Court held that wealth is NOT a classifier. The court also held that education is NOT a FR, at least not above a minimal level. If they had no education at all then it could be a FR. The court said that this gets a RB level of review and rationally you want your local community invested in the schools they are sending their children to. Phyler v. Doe: IMPORTANT: TX law said illegal alien children couldn‟t attend public school... law struck... got RB level of review. C based on illegal alienage is not the same as C based on legal aliens, so it is not a suspect classification. Also, per San Antonio, education is not a FR. What is level of review? More searching RB or intermediate level? McG thinks it is more searching. Bona fide residency with regards to education gets RB level of review. Unequal funding b/n N and S Missippi. Rb level of review and since federal gov‟t gives more money to S it is ok. Dickenson: ND law – just needs to be rational.
2/28/06: Class Notes PROCEDURAL DUE PROCESS:
Think also doctrine of irrebutable presumptions. 3 Part Approach to PDP Issue: 1. Is there a PDP issue as opposed to substantive DP? Both come from DPC (no taking of life, liberty and property). Substantive issues are the right to do things and procedural are the right to fair hearing and notice of the hearing. When laws classify people differently, it is not a PDP issue. When your substantive interests are affected it is not a PDP issue. PDP is the right to a hearing. This issue comes up when someone makes an adjudicatory decision, like a judge would make. For example, in criminal (right to counsel and right to jury trial) and civil (not as high as in criminal, but sometimes have right to jury trial, to hire own counsel) courts there is a high level of PDP. There are other instances when people make judicial like decisions. For example, when the DMV decides that your license is revoked due to recklessness, or when a principal kicks you out of school, when a utility company cuts off your electricity, or when you are denied welfare or kicked out of public housing, not given food stamps. Key question: is there an adjudicatory taking? Where there is an automatic rule like you get fired if you file for BKR, then it is not a PDP issue b/c no adjudication is taking place. 2. It must be the taking of a liberty or property interest. Historically the ct looked to whether a right or privilege was taken away. This test did not work b/c it required the ct to determine which was taken. 3. What level of due process is due? Note that in SDP and EP issues the approach depended on the interest at stake, either a low level of protection (RB) or a high level (FR-CSI). For EP, if it was a FR or suspect C then get CSI, if on gender then get intermediate, then there is the soft intermediate, there is more searching RB or extreme deferential RB. For PDP, the level of protection will depends on the interests at stake, balance b/n state and gov‟t interests and the risk of erroneous application. Low level of interest gets low level of DP protection. In Goss v Lopez, a student was suspended for 10 days for violation of school policy. Principal says you spiked punch, he said no, he was suspended. Judicial like decision: there needs to be a discretionary individualized decision that is made. Here, the principal made that type of decision. Taking of liberty or property interest? Ct said both. Liberty was the harm to ones reputation. The property interest was the 10 days of free public school education. What level of DP is due? The student was not really given any level of DP. Notice was the asking if spiked punch. Hearing. Clear resolution. Although minimal DP, it was enough in this case. Cut off of utility bills: Individual decision. Property interest. Level due: right to talk to someone who had the discretion to keep it on. 1. Board of Regents v. Roth – Teacher has K to teach for one year. Must be informed by Feb if to be retained for the next yr or not. He is not retained for the next year a. Anytime someone is being institutionalized you have a liberty interest taking.
b. Property includes things that are referred to as entitlements (welfare, food stamps). More than just ownership. Need to have a legitimate entitlement given to you by state/local/federal law or some other source, like a K. If the law says that you can only be fired for cause, then you have a property interest. But if it says you can be fired at will, then you have no property interest. Length of time on job is irrelevant. c. Analysis: i. Individual judicial like decision that is a taking? Yes: Dean‟s decision. ii. Life, Liberty or Property Interest? 1. Liberty – No: Argued that Stigma for not being retained and free speech rights. Ct doesn‟t treat reputation as a stigma anymore a. But if free speech was the reason for being fired, then it might be a liberty interest 2. Property – no: Argument was the right to the state job. The state law said that first year teachers didn‟t have to be rehiredno property interest; the law only req‟d notice by Feb if you were to be retained, w/out giving any reasons that you will not be retained (at will employment)no property interest; the only right was to be notified. a. CL Tenure Rights: As opposed to Tenured professors at public universities, by law, they have a right to hold position absent any serious misconductproperty interest File for BKR then get fired. No adjudication and not a PDP issue, then get RB level of review. This is an EP issue. Boss can fire you if there is a danger of corruption b/c of debt Adjudicatory decision being made by boss. Is right to job a property interest? Since it is for cause, then you have one. What happens when you are given a property interest on the one hand, and the law sets the procedure for taking away that property. Like in the Cleveland case. Does that satisfy the PDP issue? It is up to the state whether or not to give you a property interest. Once they give you a property interest, it is up to the court to decide what level of PDP is required. Normally PDP must occur prior to dismissal. Liberty interests are not dependent on state law. Constitution protects liberty interests. For example, if institutionalize against will, then it is a liberty interest. Wolfe v McDonald: Good time earned by prisoner was taken away. This was a taking of a liberty interest w/o PDP. State law created good time credit. Hypo – a person was transferred from prison to mental institute. He asserted that this transfer was the taking of a liberty interest that req‟d a hearing. State law allowed it, but he argued that it was protected by the Constitution. Ct said it was a liberty interest b/c when you change the very nature of the confinement, it requires a hearing.
Hypo (no liberty interest) – prisoner accused of misconduct and transferred from med to max security prison w/out any hearing. Held: No liberty interest in being in a med prison over a max prison; as such, no level of process is needed when transferred. Unless state or fed law says differently, at the discretion of PO.
Prisons: policies not written down. Conner case. Writing then down does not create a liberty interest. If the penalty imposes atypical and significant hardships from what one should expect from being in prison, then the violations of prison rules and regulations requires a notice and a hearing…PDP. 2. WA v Harper: prisoner is given anti psychotic drugs to keep him sane to assist with his defense. The prisoners want to be sane, but they don‟t want to be given the death penalty. So they want to refuse the drugs, but the gov want to give it to them so they can be sane so they can be get the death penalty. a. Ct said the procedure here was enough: The procedural hearing is the determination of the prison employed psychiatrist to make the determination after reading the record who has the professional skills if he should get the drugs. Since the prisoner has a liberty interest to refuse treatment, he is entitled to P DP, even if it is a low level. b. You can have both PDP and SDP i. Substantive DP: does a person have a right to refuse drugs being given to them against their will? 1. ct said yes there a right to refuse medical treatment (but not physician assisted help in dying) 2. ct said it may have to give way to other governmental interest a. the gov int in running the prisons forces the outweighing of the right to refuse the medical treatment Taylor case: PDP raised only for discretionary types of gov‟t decisions prior to deprivation. Negligence and int‟l torts are not the subject of PDP. PDP is limited to things you can plan for or anticipate. Mathews v Eldridge: 3 part test for level of process that is due. Importance of the private interest at stake: suspended for 10 days is less important that expulsion. Risk of erroneous deprivation: Gov‟t interest: administrative convenience, number of people being heard, Reputation and PDP: is it a liberty interest? NO Irrebutable presumption: just EP issues that would get RB level of review, but sometimes they deal with PDP issue. What do you do?
3/2/06: Class Notes IRREBUTABLE PRESUMPTION DOCTRINE: IP are primarily EP classifications and get same level of review and in most instances it is RB. Bell case: IP of fault if in accident w/o insurance and license suspended. Later on you were entitled to a hearing. Is there a PDP issue? No discretionary adjudicative decision b/c law was clear as to accident/no insurance/loss of license, but then you had a hearing later on. Drivers license is a liberty and property interest. As for level of process due, the hearing should have occurred before the termination of the license. CA law just suspends license automatically with no determination of fault. This is just an EP issue getting RB level of review b/c classifies those people. Stanley case: fathers of illegitimate kids were presumed to be unfit with hearing later on. They made fitness the issue which is an individualized decision and they presumed it so it is a PDP issue. Cleveland case: IP of fitness to pregnant women. Weinberger case is the key case: 9 month presumption of illegitimacy to prevent sham marriages and she wants a hearing. Curt applied the RB approach. Where we at? Factual patterns of Bell and Stanley case still get PDP review after Weinberg, but normally IP get EP/RB review. When you fall into the exceptions then PDP and should get a hearing. What you need to fall into the exception is a law making a discretionary decision an issue (fault/fitness) and they had a hearing afterwards on that issue. Then PDP and hearing must occur before unless there is an exigency situation. STATE ACTION TO have a violation of the 14 th, you need state action and violation of DP/EP rights. What is state action? State action means any type of gov‟t act or state EE acting in that official capacity. The issue comes up when a private person violated rights. When can private person be subject to 14th amendment or when gov‟t can be held for private acts. Burton case: city funded parking structure with a private coffee shop inside that does not serve blacks. Court approach: sifting and weighing circumstances can you determine if non obvious involvement of state – way to find state culpability is by analyzing the facts. What facts are important? Public function doctrine is one category of fact that the courts look at. Public Function way of finding state action: White primary cases: Gov should not be allowed to avoid the Const by delegating the task to a private entity. Hand over to democratic party control over primaries, as such they are a state actor.
Marsh v Al: seems important Evans v Newton: private trustees operated park public function Shopping Center case: Olympic case: company who was given power to use term Olympics by CG was not a state actor. No part of CG‟s authorization told them to discriminate against gays.
3/7/06: Class Notes Government enforcement of private acts: Shelley v cramer: private homeowners had racially restricted covenants. Claimed that gov‟t enforcement of the covenant against individuals who did not want to abide by the covenant was a state action in violation of the 14 th amendment. This decision is not extended to other cases and ltd to their facts. When a private engages in racial discrimination, can a gov‟t prosecute those who violate the privates wishes? Gov‟t enforcement of neutral laws is not state action. Girard college: private TE of trust are state actions. Cy Pres doctrine: state courts can save trusts even when some of the purposes of the trust cannot be maintained. Seems like the principal purpose still needs to be attainable. Batson case: use of peremptory challenges cannot be exercised based on race in a criminal case. What about civil cases? JEB Case: Court extended batson to civil cases. The gov‟t operating the court system was sufficient in creating state action. Tarkanian v NCAA: fact that NCAA was regulkating primarily private entities that voluntarily agreed to being regulated meant that NCAA telling UNLV to fire coach meant they were not state actors. Very clear of PDP right violation b/c firing w/o hearing. State job with property interest. No 14th violation b/c no state action. Brentwood academy: private entity running the state of TE high school football programs. GOVERNMENT FINANCING REGULATION AND AUTHORIZATION 1. Private activities on gov‟t authority 2. g financing 3. g regulation 4. g authorization
Burton case: coffee shop serving only whites, but privately owned. State action found. Looked public. Gilmore Norwood: government financing case In Gilmore and norwood it was argued that there was intentional aid to discrimination by private schools that allowed the court to fnd state action. Rendell-Baker v Kahn: Blum case: EXAM federal law said that private nursing homes had to ensure that all people in home getting federal funds were eligible for those funds. Those that were not eligible were kicked out without a hearing. G did not require them to do so, so since the homes were privatye, it was not a state action. Moose Lodge case: state gave a liquor license to a private lodge engaging in racial discrimination. The Ct said just having a gov license doesn’t make the gov responsible for private act of racial discrimination. Sure, the state could have prevented…but still no state action. Jackson v Metrolpoliton Edison: limiting the public function exception a private utility co that cuts off people‟s utility services w/out any P DP. P argued that utility is state actor b/c of regulations and historically the state provided utilities. But modernly they are provided by private entities. No state action. o PFE are limited to those activities that are “traditionally exclusively reserved to the state.” Only if parallel to this case, otherwise you need more factors than this o Private people now run prisons and schools (definitely used to be exclusively state fx) now they are not necessarily public fx‟s Mulkey case: repeal of fair housing law encouraged private landlords to engage in discrimination. Now, racial classificaiotns get strict scrutiny. Need 2/3, not ½, to pass a law involving race. CONGRESSIONAL POWER CG power under 13,14,15 amendments. Cg has ability to reach private acts in violation of those amendments and they have the ability to change the substantive provisions of those amendments. CG ABILITY TO REACH PRIVATE ACTS: Private acts of racial discrimination for example. W/ regard to 13th amendment, there is no problem with reaching private acts b/c the 13th says that no person can hold another in involuntary servitude. Note that it talks about private acts and is
ltd to involuntary servitude. But the court says that IS should be viewed broadly. CG can punish slavery in all its forms, but also “badges of slavery”. BOS are where the conditions of slavery are imposed on another. Denial of access to opera house is not slavery or badges of slavery. W/ regard to 14th amendment, clear discrimination going on by private actors, but the 14 th says “no state may deny…” CG can prevent only state and G laws in violation of DP AND EP RIGHTS, BUT cg HAS NO AUTHORITY TO REACH PRIVATE ACTS IN VOILATION OF DP and EP. CG can reach private acts, but you need 2 things: racial discrimination and badge of slavery. A BOS is any disability that was imposed on slaves. CG can prevent any of these. For example: (1) vote (2) education (3) travel interstate (4) capacity to contract (5) ownership of property (6) Employment CG can reach private acts in violation of P&I clause of 14 th amendment. 14th says “no state…”, but see §5. CG has inherent autority to protect rights of citizens. That means that CG can pass laws protecting people‟s P&I from interference from private acts. What are P&I? P&I are right to sail the navigable waters, right to protection while in custody of federal marshall, right to petition for grievances and right to travel interstate. CG has no authority to touch private acts in violation of DP. Only can touch state acts.
3/21/06: Class Notes CG enumerated power: 13,14,15th am. 2 issues: CG ability to reach private acts in violation of the 13 and 14 amendment and 2. CG ability through legislation the operative provisions of the 13,14,15th amendments. CG ability to reach private acts: 14th: no state may violate….ltd to state acts. §5 says CG can pass appropriate legislation, but their power is ltd to state acts. CG can reach private acts under the 13 th amendment – 13th is not ltd by any state action concept. Problem w/ the 13 th is that it is narrow in scope b/c it prevents involuntary servitude. CG can punish all forms of slavery in any form and is also allowed to punish private acts imposing badges of slavery. To be C, a law must (1) involve racial discrimination only and (2) it must involve a badge of slavery. A BOS is the diabilities imposed on slaves including racial discrimination involving employment, right to K and the owning or use of real property.
CG can reach private acts in violation of P&I of federal citizenship. CG has inherent ability to protect the essential attributes of federal citizenship. This is an inherent power, not a power under §5 of 14 th. o CG can pass laws reaching private acts which violate 1 of the following 4 things: rt to travel interstate, rt to sail the navigable waters, rt to petition for grievances and rt to protection while in custody. CG cannot reach private acts in violation of DP or EP rights. CG can only reach state acts or acts under color of law under §1 of 14 th.
CG ability to change substantive provisions of 13-15th amendments CG can change the remedial aspects of the substantive provisions, but it cannot make significant changes to the underlying substantive changes. They can make criminal or provide for civil liability for violations of §1 of 14 th and 15th. Assuming CG can reach the private party. Focus on if the change is significant: o Bernice v. Flores case: CG does have the ability under §5 to make significant changes to DP or EP rights. If court has defined the scope, then CG does not have the ability to change it.
FREE SPEECH: 1ST amend: CG can make no law abridging freedom of speech (this applies to states via 14 th). Federal law: 1st amendment State or local law: 1st and 14th amendment
Clear and Present Danger Test: Speech cannot be restricted unless it creates a C&PD of obstructing draft. Elements: o Must be words of advocacy of violence o Words have to be stated for the purpose of accomplishing tose acts proof of specific intent to accomplish illegal acts o Must be a likelihood of success.
3/23/06: Class Notes Free Speech continued: Brandonberg: Clear and Present Danger Test: Dennis case: the greater the danger, the lower need for proximity. Danger was to overthrow the US. This was ignored. Anytime the gov‟t is restricting radical political speech use this test.
2 other uses of the phrase C&PD – not the Brandenberg test, but just the use of the phrase o Bridges case: a non-party can‟t be held in contempt of court for a stmt about the judicial system if the stmt is made outside the court unless the stmt presents a clear and present danger to the fair administration of justice. Subsequent cases have said it is virtually impossible to satisfy the C&PT in this context b/c judges must not be influenced. o Exception: In Near v MN, prior restraints are per se invalid unless they present C&PD.
The more modern cases use the phrase CSI in these second 2 situation. Void for vagueness or over-breadth Tests Vagueness: o PDP issue and not principle concern. o DP requires that criminal laws give a person notice as to what is criminal. Meaning there has to be Rx ascertainable standards that allow you to determine what is criminal. o Usually not the right approach. Very often vague laws are upheld. Over-breadth: o Any law that is vague is inherently overbroad. o Allows you to escape bad facts. o Coats case: It does not matter what the 3 people were doing on the street, whether it was protected or unprotected speech, the party can challenge the validity of the law. Meaning people engaged in speech not protected by 1 st am, under the overbreadth doctrine cannot be prosecuted by a law that is overbroad. o Key: do not need to challenge the laws as applied to you, you apply it on its face as it would be applied to others. o Fact pattern/Approach: look for client engaged in unprotected speech – This client is engaged in unprotected speech b/c… But he still is allowed to do it b./c the law is overbroad, it reaches activity of other protected by the 1 st Am. o Example: law protects indecent speech but not hard core porn. Hard core porn speech can challenge the law on its face as it would be applied to others, in this case the indecent speech.
Doctrine of Prior Restraint: GR: PR are presumptively invalid. What does this mean? E/t speech is not protected and can be subjected to punishment, you cannot be restrained prior to speech. Why? PR do more harm that subsequent punishments. Near v MN: Speech prior to publication cannot be restrained unless necessary to prevent some C&PD. An example of this would be in times of war. Need imminent danger. Look for licensing scheme – that is a prior restraint that is Px not allow. Most common for of prior restraint modernly are judicial injunctions. Vs self-restraint: fear of subsequent punishment.
3/28/06: Class Notes Right to Privacy Torts: Four Causes of Action: 1. Revealing Private Facts 2. Appropriation 3. False Light 4. Intrusion on Seclusion
Revealing Private Facts: The truthful revealing of private facts if they are so embarrassing that revealing them shocks the conscious gov‟t cannot punish unless there is a CSI for punishing the revealing of private facts. Facts about rape victim do not qualify. Info taken from public record are not private facts. Intrusion on Seclusion free speech does not protect news gathering, so any tort or crime or unRx breach of right to privacy can be made actionable. only party involved in gathering can be published. Publication is not protected.
3/30/06: Class Notes Revealing private facts: if reveal facts of a confidential nature and tht revealing is considered to be offensive b/c they are so embarrassing, it shocks the conscience. What are the free speech implications? Does the 1 st amendment limit that tort? In FL Starr case, the court said the truthful revealing of private facts cannot be punished absent a CSI. Revealing of Identity of rape victim or juvenile delinquent or judge investigating misconduct are private facts that do not have a CSI. Intrusion on seclusion: committing of tort/crime or unRx invasion of right to privacy in the gathering of information. Breach of wiretap laws, illegal surveillance…Court has said the gathering of info is not protected by the 1 st to the same degree as publishing information. If media played no role in gathering, then they can pulish illegal info without penalty. Misappropriation: taking of someone‟s likeness for commercial gain. Rt to publicity is misappropriation for celebrities. M is not protected by 1 st amendment. False Light: false and offensive stmt made about someone else that is not defamatory. Many states allow this as a tort. Private persons involved in public concern must prove NY Times standard of actual malice. Private persons and private concern, the standard could be actual malice or negligence we do not know.
Obscenity: Legitimate discussions of sexual matter are entitled to the highest degree of protection. The court said that the type of sexually explicit speech not protected is the type of speech that appeals to the prurient interest if TARP. Need to judge the material as a whole, not enough for single explicit images. Restricted sexually explicit speech can be justified for its appropriateness for TARP, not on children. Prurient interest = unnatural curiosity w/regard to sexual matters. 3 part test: Appeals to the prurient interest: judge as a whole, ltd to prurient interest, judge appeal based on TARP, not TARC or the most susceptible members of society. Judging material as a whole: exception is if you pander – emphasize dirty parts. If commercially exploit the dirty parts then the judges can focus specifically on those parts instead of looking at the whole. TARP: or the pervert it is directed to Patently offensive applying contemporary local community standards as defined in legislation: standards for each community will be defined by each community‟s legislation. Local or state law must declare it offensive – needs specificity Without Serious literary artistic political or scientific value: Stanley case: all speech is protected in the privacy of your own home. Sexually explicit speech is protected by the 1 st unless it is hard core porn. That is what the 3 part test is saying. Sexually explicit speech is protected, as is soft core porn. Children and Obscenity; crime to sell SE material to kids. If the law attempts to protect kids by ltd adults, then it is unC. Kid porn was not protected in a persons home. This can be real or virtual child porn? Ct said virtual child porn protected unless satisfies CA v Miller. Phone sex case: restriction on adults based on desire to protect kids has to pass CA v. Miller standard. Access only by credit card would most likely be constitutional b/c it would not restrict adults.
COMMERCIAL SPEECH Indecent Speech: not as protected on the radio Central Hudson case: Commercial speech entitled to some protection. What is commercial speech? 1. Proposing of commercial transaction, 2. Speech that relates solely to the economic interests of the listener. ONLY ADS. Test
Must not involve unlawful activity Cannot be misleading Must involve a substantial gov‟t interest.
Law must directly advance the substantial gov‟t interest Law hurts no more speech than is essential for carrying out that purpose: court has required a Rx fit for what the law is and what the purpose is…so law must be narrowly tailored.
Not as highly protected a non-commercial speech. Non-commercial speech, like advocacy of unlawful activity and misleading speech, is protected by the 1 st amendment. Last 3 requirements = intermediate test Commercial speech is entitled to a high level of protection under the 1 st, but it is an intermediate test. Non commercial speech gets CSI Hypo: Law bans commercial ads for smokeless tobacco products near schools No unlawful and not misleading Interest in keeping kids from smoking and advances that interest Problem is that it hurts free speech too much! Law that bans ads below 5 feet does not advance anything. Exceptions (Where CS regulation has been upheld) Law: Puerto Ricans couldn‟t advertise casino services to locals, only to tourists (b/c they didn‟t want the locals to be poor). ct upheld b/c passed intermediate test – advanced gov interest of protecting locals from evils of gambling FCC law: prevents radio and TV from ads for lottery where lottery is illegal. VA (illegal gambling) was advertising neighboring state‟s legal gambling Ct upheld the law. If private casino is legal in state, the court cannot ban. Content neutral time, place and manner of speech regulation will get an intermediate test. The regulation must be narrowly tailored to advance a significant/substantial gov‟t interest. Look at alternatives and balance the harm to FS and the gov‟t interest. If the regulation considers content then you apply the CSI test. If the law is content based, apply one of the strict test (CSI – fighting words.). Public Forum: Hague v CIO It is important to protect the sidewalks as a traditional place of free speech b/c those are often minority points of view that do not have other outlets.
Mosley case: no picketing near school, except for labor picketing. This law is content based b/c there was an exception for labor. Snyder v NJ: no distribution of leaflets…ok b/c prevents littering. Content neutral so apply intermediate tests considering Rx adequate alternatives. Court said prosecute the litterer not the party handing out the paper. Ban on billboards near telephone polls – no Rx alternative to getting rid of unsightly litter. Total ban on residential neighborhood….too much damage to FS Ban on focused picketing…passes intermediate test.
4/11/06: Class Notes Time, place and manner of free speech: Initially decide if the regulation is content based or content neutral (T/P/M). CN get the intermediate test. McG likes the Word against Racism Test. The regulation in advancement of the non-speech gov‟t interest (i.e. noise) had to be narrowly tailored to advance a significant gov‟t interest. Also must consider if there are Rx alternative ways to advance the state interest w/o curtailing speech. Approach: balance the competing interests. Cases: Madsen: 36 foot buffer zone where protestors cannot be to allow ingress and egree to clinic. Buffer zone is content neutral…is it narrowly tailored to advance the gov‟t interest of ingress/egress? Court applied the balancing test back and side entrance was different than front entrance. Also regulated amount of noise at certain hours, this is not an attempt to regulate content. Court said the concern for noise outweighs the harm to free speech. What was content based was the regulation on what the signs could say…hurt feelings of women getting abortions is content based regulation. Also banned approach of anyone w/in 300 feet is way too much and hurts speech. Hill: 8 foot approach limit w/in 100 feet. Shank: 15 foot interval struck down. Too far away. Boos v Berry: Nature of the forum can be part of the balancing process. Traditional forums have been held as places for public speech (sidewalk, public parks). As the place changes, FS may have to give way. All speech in public places is not protected. Adderly v Fl: nature of the place, a jail, and its special concerns for security, outweighed any harm to speech. This is CN, so then analyze the place.
Spock: protest at military base. Extra concern for security. Library: its very nature is to limit speech. Other factor in applying test: w/ regard to non-public forums (like LAX) Airports – regulation still needed to be CN, if content based still get CSI, if CN, then the test si Rx basis test. CN regulations of non-public forums must Rx relate to legitimate or permissible gov‟t interest. Very low level of protection. Thus LAX could prevent the Krishna from selling materials, but giving away was valid. Types of forums that get RB and Intermediate test: Assuming CN Intermediate Test: traditional public forums, designated public forums (those that gov‟t has designated as a place for public meeting and protest. Non-public forum: regular level of speech is incompatible with the principle function of the place, like airports, military basis, post office grounds, gov‟t offices, Arkansas Education TV/ forbes v Arkansas: gov‟t owned tv station excluded forbes from participating in debate. Court said it was content neutral – excluded b/c not a viable candidate. Note that presidential debates are run by private entities – no state action. They said this was a non-public forum so test was Rx basis. Linmark associates: city law banned for sale sign in front lawn of home. City of Ledoux: could have had a more Rx t/p/m regulation.
4/13/06: Class Notes Gov‟t as speaker: Normally the rule is that when the gov;t gives funding they can regulate speech, but in this exception case, when the gov;t allows the atty to file case but limits the argument that can be made, the gov‟ts limitations are in violation of the C. American library case: childrens internet protection act CG require all public libraries receiving a certain type of federal funds had to install filtering systems to protect children using library computers. Restrictions were overbroad, excluding unprotected and protected speech. This restriction was claimed to be a violation of free speech. Court took 2 approaches: nonpublic forum so test is that the regulations must Rx relate to legitimate gov;t interest and alternatively the case is covered by Russ v Sullivan case saying that if accepting funding then have to follow restrictions. 5. fed gov is providing funds and once you accept these funds, you become gov as speaker and gov can regulate it as it wants to (normal rules don‟t apply)
Can universities restrict military recruiters on campus?
Freedom to Believe: Another FS doctrine You cannot be compelled to say what you believe Right not to speak Freedom of Association: Part of FS…there has to be a CSI to justify laws which hurt freedom to associate. Persons involved in a private demonstration that turned violent are still protected, as long as they were peaceful. This changes when the group has illegal aims, you know of them and it is your intent to accomplish those aims. Peaceful participant in demonstration that turns violent.
4/18/06: Class Notes
NY State Pub Association: corrolary of FS. Any harm to FOA must be justified by CSI, no less restrictive means and unrelated to suppression of ideas (content neutral). 1. Limits on Association Membership Policies Roberts v US JC: local law prevented gender discrimination by restricting private associations. There are different types of association. Not all are entitled to protection under 1 st, b/c only those that are expressive in nature deserve protection. Expressive Associations: one of purpose is to espouse a particular point of view Societal association: come together b/c of common affinity gov‟t just needs RB. JC: purpose was to promote pro-business…seems expressive, but court said not expressive. Requiring them to admit women does not impact message. (a) this means where there is a state law that limits private groups (b) there are two types of associations, expressive and societal, and only regulations on expressive associations get a high level of review (meaning that laws regulating them must survive strict scrutiny) state attempts to regulate an associationask if the regulation is expressive in nature or societal in nature. if it regulates the expressive portion then it must pass CSI (poreventing discrimination based on sexual orientation will not pass test) if societal in nature, then test is RB –
organization partly exp and partly soc – regulation impacted express – regulation must pass CSI preventing gender disc – CSI preventing discrimination based on sexual orientation is not a CSI
1. Freedom of Association: part of fundamental right to privacy. a. Basically... (1) There is freedom to Associate with those of like-minds in order to promote idea. (a) Peaceful concerted action is protected by freedom of association (but not if violent) (2) Can’t be taken away, UNLESS government has a CSI. (a) NAACP v. AL: AL required that all associations turn over membership list including contributors; SC said CSI. b. NICE ISSUE: State Laws banning the Association of Private Organizations if they practice racial/gender Discrimination: (1) Two categories of Assoc. Groups: (1) Expressive; and (2) Societal. (a) Regulations of Expressive Associations must be justified by CSI = protected by 1st (b) Regulations of Societal Associations get RB (2) Problem: How to decide which type of Assoc in partic facts? Look at size, purpose, policies, selectivity, congeniality, etc. (a) Roberts v. US Jaycees: Jaycees didn‟t admit women as “regular” members. State law prevented gender discrim; SC said Jaycees have pro business point of view, which is Expressive, but has nothing to do with banning women, and for those purposes which are societal get RB level of review. (b) Hurley: Group wanted to be in parade. Veteran‟s Council said no; SC said no b/c Parade was an Expressive Association and thus could exclude whomever they want.
Note that the gov‟t can compel you to be associated with a particular organization (think Bar) See gilian outline for compelled association What if members of these associations challenge politically expressive activity or the association? o Any member who objected ot fees being spent in a way unrelated to purpose of organization, can get refund on proportion of fees. Example: if CA bar spend money on activities unrelated to profession… Southworth case: students do not get portion of fees back b/c everything related to educational process.
Compelled Speech: Cannot be compelled to give a 3 rd parties point of view. See gilian outline Hypo: is there such a thing as inappropriate compelled speech?
Mushrooms and Prunes Private shopping centers are not state actors and can discriminate. Requiring them to make public space available is not compelled speech. Free Speech Rights of Gov’t Speakers: If your speech as an EE relates to the internal activity of the gov;t office, then you have no free speech rights and can be fired for making critical statements about boss or office. If your speech as an EE is a matter of public interest, then it is protected speech. Also, see Republican Party case you cannot be compelled to be a particular member of a political party in order to hold a job, unless the nature of the job is such that it is required to be a member of the party.--> unless you are involved in policy making… Cannot be denied a job and cannot be promoted/demoted based on political affiliation… Public School and FS Those schools you are required to go to. Not public universities. Since gov‟t compels kids to go, has a responsibility to protect kids. In the FS context, PS can regulate student speech on school property related to school activities if Rx related to legitimate pedagogical concerns. Special Rules for Broadcast Radio Indecent speech not protect, neither is obscenity Special rules… Gov‟t division and licensing holds gov‟t responsible. See electronic media in Gillian Indecent speech had to be in certain safeharbor hours to protect kids. 10pm-6am Test: League of women voters federal law says no endorsing political candidates. o Content based regulation of radio and tv must be narrowly tailored to advance a substantial gov‟t interest. o Key about broadcast radio and TV court used intermediate test w/ regard to content based regulations. o Regulation od indecency upheld….right to reply upheld League test does not apply to cable, satellite…those get normal level of protection under 1st Religion: 1st amendment 2 clauses: Establishment clause: CG nor the state can make no law establishing a religion Free exercise clause: guarantees the right to the free exercise of religion. Establishment Clause: Approach: Lemon Test o Any law which advances religion must have a secular purpose. Easily satisfied
Laws that mandate prayer has no secular purpose. Chaplain required to led a student prayer before games – no SP. Even a law requiring a moment of silence. Religious displays are allowed on public property, even schools, as long as there is a balance b/n the religious (baby jesus - minorah), tradition and history. if have a baby jesus, need also have some historical or traditional aspects. Balance must be at 1 site, not b/n 2 different sites. Marsh v Chambers: allowed to have chaplain long been recognized as acceptable. “Under God” challenge: historically accepted Ct more tolerant of civil religion then aid to actual religious institutions. o Primary effect must be secular, neither advance nor inhibit religion Most involve aid to public schools: aid to religious schools must have principal purpose of advancing education. Ct more tolerant of aid to colleges than aid to elementary and high school. Aid must be to secular wing of school, not chapel. Receive federal funds to promote abstenancy – not a violation of E clause b/c principal effect was to address problems of illegitimate birth…e/t paralleled religious beliefs. Aid to religious schools: Allowed grant of state books (not atlas or globe), free bus transportation to school (not to field trips). Why? More likely to be used for educational purposes and not religious OLD RULE As long as aid is meant to advance education, then it does not matter if aid is on or off campus. Distinction b/n on and off campus activity is no longer relevant (books, computers…). NEW RULE Tuition voucher – not a violation of E clause. Aid went to parents and not school and the parents chose where to send kids, and most of the aid went to public schools. 3 main colleges v. high school: o nature of the aid: number of factors considered Aid directly to parents is viewed as being less likely to violate E clause. Important that it is aid to all schools, public and private, less likely to be a violation that way. o Form of aid: aid to private religious schools is ok if eye test, but not a psychological counselor. Cannot be reimbursed for grading of tests. o Amount of aid: if too high then court concerned. o No excessive entanglement any aid to religion must not be of type/variety that requires too much oversight or supervision by gov’t to prevent its misuse.
Aid that requires too much oversight to prevent misuse – if form requires too much oversight, then too much entanglement. Church cannot be involved in zoning decisions.
Banning religious groups from public forum case: viewed as FS content based and no CSI b/c no violation of E clause I guess.
4/20/06: Class Notes Lemon Test: only test the majority has agreed upon. FREE EXERCISE OF RELIGION Key case: Smith Distinguish b/n laws of general applicability having an incidental impact and laws passed with the intention of restricting religious beliefs. The latter have to pass a CSI, which is unlikely. Banning the sacrifice of live animals for religious purposes – not CSI Unclear what the test is for former example…most likely intermediate test. Peyote case: Less drastic alternative: provide exceptions