CONSTITUTIONAL LAW OUTLINE: INDIVIDUAL RIGHTS
Introduction 1. Bill of Rights: the first ten amendments are read as if they apply only to Congress, but the 14th Amendment (Due Process Clause) extends these rights to the States 2. The Due Process Clause Under the 14th and the 5th a. Cannot take away life, liberty, or property without Due Process of law b. The Due Process Clause of the 5th and the 14th amendment protect substantive rights. (1) The 5th is read as if Congress will not deny Due Process rights (2) and the 14th says no State shall deny Due Process rights c. The Due Process clause protects substantive interests. This means that it protects things that you want to do – might want to take the bar exam without going to law school.
THE RATIONAL B ASIS TEST AND SUBSTANTIVE DUE PROCESS
1. the level of protection given by the Due Process clause is Rational Basis 2. Any time the government limits your ability to do things without due process, you can challenge it, but the government need only pass the rational basis test 3. the Rational Basis test is a very low level of review, the presumption is in favor of the constitutionality of the legislation 4. Rational Basis Test-any laws limiting substantive interest must rationally relate to
some legitimate or permissible governmental end.
5. Two parts to the test: a. there must be a legitimate end b. the law must rationally relate to a legitimate end - merely has to be conceivable Perform test in that orderlook for a legitimate governmental end, then look for the link to that end 6. Ask: a. does the law rationally relate to a legitimate governmental end? b. Does it conceivably advance that end? 7. Note that in using the RB test, all the court cares about is whether there is a legitimate end whereby it is conceivable that the law advances that end. a. Thus, even if there is evidence that a law is being passed for a bad reason (ie, the reason for a law is to please lobbyists), the court will not bother to look at that evidence if the two factors of the test can be satisfied. b. Also, the court can and will speculate as to what the legitimate governmental ends may be – the law might not say why a law is being passed
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c. Remember: If there is any conceivable advancement of a legitimate purpose, it is likely to pass the Rational Basis test. d. To defeat rational basis, must show that there is no possibility of any connection to legitimate ends. 8. Sometimes referred to as “permissive scrutiny”
CONTRACT CLAUSE: Public Purpose Balancing Test
1. Article 1 §10 of the Constitution imposes limits on the States. The principle motive was to protect economic interests, it says that : no State shall impair obligations of contract. 2. in essence, no state shall impair obligations of contract unless doing so is to advance some legitimate public purpose. 3. ONLY APPLIES TO THE STATES; ONLY APPLIES TO PREEXISTING CONTRACTS a. the state cannot retroactively impair State contracts or contracts between parties b. the Contract Clause only applies to State laws that retroactively impair preexisting contractual rights. c. The Contract Clause is not applicable if the law applies prospectively. d. Note that if it is a federal law impairing contractual relations, then the law does fall under the Contract Clause, but rather gets a Rational Basis level of review. 4. Public Purpose Balancing Test: a. The test where obligations of contract are impaired is the public purpose balancing test which consists of three elements: 1) there has to be substantial impairment, 2) if there is, there must be some significant and legitimate public purpose which justifies such impairment, 3) and any new conditions imposed on pre existing contractual rights must be reasonable and those new conditions must reasonably advance whatever the public purpose might be. b. in essence, no state shall impair obligations of contract unless doing so is to advance some legitimate public purpose. c. The elements: (1) there has to be substantial impairment (a) the court will look at the severity of the impairment – some impairment is not enough, but does not have to be complete destruction of contractual rights (b) the court will look at reasonable investment based expectations (c) and the degree to which the subject has been regulated in the past I. parties should expect changes in regulation II. and it is harder to show substantial impairment where the industry is heavily regulated
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(d) this is usually not the debated part, the court will usually find substantial impairment (2) if there is substantial impairment, there must be some significant and legitimate public purpose which justifies such impairment (a) the question is how necessary is it to abridge contracts? (b) Modern cases say that that this purpose does not have to be very strong (c) The court is very permissive in this area – most cases find that the governmental interest is sufficient (d) Exception: the court will require a stronger purpose where the government is impairing its own contract. Example: State wants to improve conditions for commuters and wants bond
holders to pay for the improvements. While this is a valid public purpose, why should the bond holders have to pay for it—what is the relationship? There is no valid reason why the bond holders should bear the cost to advance commuter transit.
(3) any new conditions imposed on pre-existing contractual rights must be reasonable and those new conditions must reasonably advance whatever the public purpose might be (a) must assess the degree to which the court reasonably balances the harm done to the contract versus promoting the public interest
NO TAKINGS CLAUSE
1. The government, neither the States nor Congress, may take private property for a public purpose without just compensation. 2. “for public use” a. if the government wants to pay for it, then it is for public use b. 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. The court has never held a compensated taking to be proscribed by the Public Use Clause” 3. “just compensation” means the fair market value prior to the government taking your property 4. what is a taking? Direct and Indirect Takings a. When the Government Takes Property For Government Use = Compensation. (direct taking) (1) historically, a taking was when the government would pay you the fair market value of your property and then use it for whatever they need – this constitutes taking that requires just compensation (2) there will not be a dispute re compensation in these types of situations b. The Government Takes Your Property For Use By Others = Usually Compensation (direct taking)
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(1) not going to be much of a dispute re compensation here either (2) remember that property can have a broad definition (ie, trade secrets) (3) example: case where Aetna developed a private marina for members only and the
govt came in and said that the public was entitled to access in this privately funded marina. The court said that the govt was taking from marina developers so they were entitled to compensation.
c. Indirect Takings: Regulations That Indirectly Take Your Property (1) Restrictions on property use: Property may be regulated to a certain extent, but if the regulation goes too far, it will be recognized as a taking (2) 2 categories of regulatory action which are compensable without case specific inquiry (two situations that are best for finding takings) (a) the government physically invades your property or allows the physical invasion of your property I. regulations that compel the property owner to suffer a physical invasion of his property II. can be dust, smell, noise III. examples: sick chickens case. Noise from planes during WW2 made chickens
nervous and they laid thin shelled eggs that had a lower value. The noise affected the value of the eggs laid by chickens. They claimed it was a taking of business without compensation – the Fed government’s noise invaded Ps personal property Teleprompter: the city of NY required that condo owners make available the apartment house for installation of cable. The court said that is a physical invasion that the cable company is allowed to run its cable along the side of the side of the building and thus requires compensation.
(b) the government takes all (or substantial amount) of economically viable use of your property I. where a regulation denies all economically beneficial or productive use of land II. must take all economically viable use - if the regulation takes the value of 75% of property, then it is not a compensable taking III. example: case where guy pays big bucks for property with the intent to
build a beachfront retirement home and then a regulation is passed that prohibits building homes on the land. The court said the economic use had been taken away and thus he was entitled to compensation. Note that harmful or noxious uses of property may be prohibited by government regulation without the requirement of compensation, but this was not the case here.
IV.
V.
exception: can take all economically viable use if necessary to abate a nuisance or some other government interest (cause serious harm to neighboring property) examples: this area of the law is very vague
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owner of several cedar trees was required to cut down his trees bc
the cedar dust was harming apple orchards nearby. Owner argued that this was a compensable taking, but he court held that they were addressing a nuisance – allowing the taking of the cedar tress in order to protect a nearby property. State law banning production of alcoholic beverages making valueless a particular factory and hence they said it was a compensable taking. The court said not a compensable taking but rather an abatement of a nuisance.
(3) 3-factor test for indirect taking: there is a third possibility if you cannot fit within one of the above 2 indirect taking categories – Penn Central Case sets forth 3 factors to decide whether something is a compensable taking or not (a) look at the economic harm. Look at economic effect on the owner of the property. It may rise to the level of a taking even if it is not a taking of all of the viable economic use. (b) Asses the harm to reasonable investment based expectations. Look at I. whether the law is prospective or retroactive in its application there is no law against retroactive law, usually just gets a rational basis review, but it is relevant here. II. The reason the investment was made (c) the court will look at the nature of the taking itself. Looking at the general fairness of the taking (zoning restrictions are less likely to be takings) I. example of no taking under 3 factor test: Penn Central purchased
Grand Central Railroad Station and Penn Central wanted to develop the air space above the Station (make it a hotel). The commission would not allow this bc said it would destroy the dramatic nature of the building. Penn Central sued claiming that this was a taking of their property. The Court found no taking. They said that NY law gave you airspace elsewhere in the city if rights were taken away, so the economic impact was not as great as it would have been. Second, with regard to reasonable investment based expectations, Penn Central was buying a rail station, and thus their central use remained viable –their investment based expectation of a railroad station was not harmed. As for the nature, the court said that it is common for the government to protect historical structures
(d) note that if government engages in a taking and then later changes its mind, it has the right to change its mind but must still compensate for the time in which it had taken property. I. example: County of LA imposed moratorium on a church recreational
area and thus the church couldn’t rebuild. This was deemed a compensable taking, so the city said they didn’t want it anymore. The city had the option of not going through with the original purpose, but had to pay for the 8 years of restrictions on the use of the property .
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5. Exactions a. form of taking that gets a different test b. an exaction is a condition imposed for the change in use of property (ie, having to make the law school handicap accessible upon expansion) c. 2 part test: if the exaction does not pass the test, then the exaction rises to the level of a taking and thus requires compensation. (1) there must be an essential nexus between the exaction and the reason for the taking (must do what you said you were doing) (a) the exaction must bear some essential connection to the reason for the taking (b) there is no reason for a government entity to fail this part of the test bc they just have to draw a connection = just have to do what they say they are doing (c) example: Nollan case – family wants to remodel their beachfront home, but
required to deed to CA frontal access bc of alleged ―visual access‖ they want to give to people, but really they wanted the land bc they wanted to join all of the public beaches. Thus, the CA Coastal Commission did not do what they said they were doing, and thus a compensable taking.
(2) the exactions must bear a rough proportionality to the harm (a) this means that if the purpose for the exaction is reduce traffic (harm), then the requirement to build a bike path must rationally relate to traffic reduction (b) must take into account all of the facts (City of Tigard Case)
FUNDAMENTAL RIGHTS : CSI TEST
1. we are back to the Due Process Clause – with regard to some certain
fundamental rights you have to satisfy the compelling state interest test 2. fundamental rights a. right to privacy b. right to vote c. right to travel interstate
3. CSI Test – 1) there must be a compelling state end and 2) the law limiting fundamental rights must be narrowly tailored to accomplish those ends. In assessing whether or not the law is narrowly tailored, the court will consider whether there are reasonable adequate alternative ways of addressing the problem without hurting the fundamental right involved.
4. Often it will be the case that there is a compelling state interest, but that the relationship part of the test fails because there are other ways of doing it. The Right To Privacy – a Fundamental Right 1. considered a fundamental right that is found in the penumbra of enumerated constitutional rights – specific guarantees in the bill of rights have penumbras formed
by emanations from those guarantees that help give them life and substance
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2. what is included in the right to privacy? Several things are protected by the Constitution despite the absence of specific language recognizing them a. Right To Privacy in the Martial Relationship – the Right to Marry (1) Reasonable regulations of marriage that do not significantly limit the right to marry get a rational basis test. (2) Unreasonable regulations of marriage that significantly limit the right to marry get a compelling state interest level of review. (3) but the court gives us no indication of what is reasonable and what is significant in terms of marriage (4) ask (a) is it an unreasonable restriction? (b) that significantly limits the right to marry? (5) areas not considered worthy of CSI test (a) laws forbidding marriage to 1st cousins (b) marriage license laws (c) requirement that one of each sex (perhaps this does violate the fundamental right to privacy) (6) example from old test: law allowing same sex marriage, but not allowed if
going to marry first cousin. The level of review would be Rational Basis, but the purpose of the law was to prevent the passing of inherited common traits leading to mental retardation. With regard to gay marriages, this is not a legitimate concern. (7) Example from Zablocki: statute provided that a resident having minor issue not in his custody and which he is under an obligation to support by court order was not allowed to get married. in this case D had an illegitimate child from high school and never paid child support, that child is on welfare, and now he wants to get married. The court applied CSI and found that it was unconstitutional, but note that this could have been struck down even with RB – would fail the relationship prong of the test because it is enforcing its child support interest by limiting the right to marry.
(8) b. Right To Make Child Rearing Decisions/Contraception (1) The right to privacy protects the right of all adults to use contraception and make procreation choices (2) Contraception (a) Married persons have the fundamental right to use contraception (b) single persons have the fundamental right to use contraception (c) minors and contraception: Rational Basis Test (I think, need to ask
MC)
I. II.
The reproductive rights of the woman are constitutionally protected even if she is a minor. However, the court, recognizing the greater interest in protecting immature minors, has applied a less stringent
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standard of review in cases involving minors and allows a greater degree of state regulation. (3) Child Rearing is a fundamental right (Moore), but this right is limited and otherwise will apply the Rational Basis Test (Michael H). (a) The institutions of marriage and family life are deeply rooted in our nations history and traditions. Through them, basic moral and cultural values are passed down, and thus they are fundamental rights thereby affording a CSI Test. (b) However, even though decisions concerning child rearing including family living arrangements are entitled to CSI test, but the scope is limited. Not all relationships and associations are within the “marriage” and “family life” that are protected by due process liberty. The claimed interest may be defined by the Court in such a way that it does not qualify for constitutional protection.
(c) CSI Test: Moore-laws limiting personal choice in matters of marriage and family life are subject to CSI. Zoning ordinance prohibited cohabitation of nonfamily members, which included cousins and other members of the traditional ―family. This was considered a child rearing decision and thus got CSI test. Are living arrangements a fundamental right? Moore tells us that no proper government interest is being served by regulating the traditional family and that ―when a city undertakes such intrusive regulation of the family the usual judicial deference to the legislature is inappropriate‖. A city may restrict unrelated persons from living together, but it may not interfere with traditional family relationships. (d) RB test: Belle Terre-A local ordinance limiting dwellings to a single family, but defining a family to mean not more than two unrelated persons, does not violate due process. The law excludes land uses such as boarding houses, frat houses, communes, etc. No fundamental right of privacy or association is involved. The law is rationally related to permissible government objectives of controlling population density and preventing noise and congestion. (e) RB Test: Michael H. A state statute establishing a conclusive presumption that a child born to a married woman cohabiting with her husband is a child of the marriage does not violate the substantive due process rights of the natural father or the child. In this case, any children born during a legitimate marriage creates an irrebuttable presumption when the child turns two the husband is the father. Even if this precludes the natural father from seeing his kid, it is constitutional to deny a father the right to see his kid-it is not a fundamental right, and thus gets a rational basis level of review. The tradition of a natural father having certain kinds of rights is trumped by the bigger decision to protect marriage. It is the relationships that develop within the unitary family that have tradtionally been protected as due process liberty interests.
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c. The Right to Refuse Medical Care (1) There is a right to refuse medical treatment; to be distinct from a right to physician assisted suicide (not necessarily fundamental, but it may be associated with the right to privacy)
(2) Example: state law that if there is clear and convincing evidence that a person does not want to live in irreversible vegetative state then they will not have to stay on life support (ie, says it in your will). Parents wanted to take daughter off of life support, but there was no evidence, so she stayed on it. Parents challenge law, and the standard is CSI.
d. Fundamental Right to Choose Whether or not to Give Birth (abortion) (1) A woman’s right to choose is fundamental – pre viability State laws regulating abortion must not impose an undue burden; post viability, the State may regulate abortion, except where it is necessary to preserve the life and health of the mother
(2) Undue Burden Test: Laws regulating pre viability abortion cannot place an undue burden on a woman’s right to choose: An undue burden exists and therefore a provision of the law is invalid, if its purpose of effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. The law must be designed to inform the woman’s choice, not hinder it.
(3) The court rejected Roe’s trimester framework in Casey and replaced it with the point of viability: (a) Pre viability- regulation only allowed if does not impose undue burden: Before the point of viability, the woman’s right to choose is dominant. Laws regulating the abortion decision pre viability cannot place an undue burden on a woman’s right to choose. (b) Post viability – state can restrict abortion after fetal viability, so long as it provides an exception for the mothers life or health: after the point of viability the State may regulate abortions, but must account the life and health of the mother. To challenge such laws, the appropriate standard is ______? (CSI) (4) Common Regulations on the Abortion Decision – Note: adding to the trouble and expense of an abortion does not necessarily constitute an undue burden (a) spousal consent = undue burden on a females freedom of choice (b) spousal notice = undue burden (c) parental notice = only constitutional if the law has an adequate judicial bypass I. in order to be constitutional, the bypass procedure must provide two procedures for the judge to use
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1) maturity exception: the court must have the authority to determine that the minor is sufficiently mature to make her own decisions AND 2) best interest exception: the judge must have the authority to determine a) that the minor is not mature enough to make her own decision and thus b) the judge has the discretion to determine that having an abortion is in the best interest of the minor or that it is in the best interest of the minor not to tell her parents II. if the law does not have both options, then it is unconstitutional. (d) Record Keeping Requirements = generally constitutional I. the court has held that most record keeping requirements are constitutional as long as they are reasonably related to the maternal health of the female. II. What is reasonably related to the maternal health of the female? Anything that might help medical research, or that relates to health of females in the future III. 2 exception where record keeping is unconstitutional: 1) breaching confidentiality of the female: the name of particular persons must be kept confidential – if the state requires such detail that if it is made public individuals would be exposed is not ok 2) reporting as to why the female did not seek the consent of the husband: the government cannot require you to explain why you did not give notice or consent – this would be an undue burden (e) Regulation Of Medical Procedures = generally unconstitutional (1) where regulation of medical procedures are intended to make getting an abortion more difficult (which most do) the regulation is in violation of undue burden or CSI test. (2) There are two exceptions, both to protect the life of late 2nd term fetuses which might be 3rd term I. late 2nd term abortions: the court has upheld regulations requiring that there be additional procedures taken to make sure that it is not in fact an illegal 3rd term abortion that is after the point of viability
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second doctor requirement: the requirement of a second doctor to make sure not aborting a viable fetus in the case of late second term abortion (3) NOTE: all medical regulations must have exceptions for the life and health of the mother. (f) Funding Decisions = Rational Basis (1) all funding decisions get a rational basis level of review bc funding decisions do not place an undue burden on any particular individual (2) examples:
I. Missouri banned all abortions from being performed in State hospitals bc if in a state hospital, then the State is funding and thus the ban was viewed as a funding decision getting a rational basis level of review Russ v. Sullivan - Regan issued an executive order that Planned Parenthood can tell client about abortion at all if they get any federal funds. The executive order went to the SC and it was upheld despite undue burden and free speech claims, bc the court called it a funding decision, thus a rational basis level of review
II.
II.
(g) informed consent = constitutional (no undue burden) (1) when informed consent is being used to influence the female to carry the fetus to full term as opposed to getting an abortion (2) informed consent procedures, even though they appear to go beyond the normal limit, do not impose an undue burden. The fact that the government tries to influence adds complexity but does not unduly burden. (h) 24 hour waiting period = constitutional (not an undue burden) even though this adds to expense, anxiety, etc, the court said it is not an undue burden. 3. What The Right To Privacy Does Not Include a. There is no fundamental right to engage in homosexual sodomy (gets RB test) (1) Bowers v. Hardwick – law against sodomy was challenged as it applied to homosexuals. The court did not have to address the intimacy of the martial bedroom and thus the holding is limited to homosexual acts. (2) There was no attempt to show that the law was irrational – it may have failed the Rational Basis test. b. There is no fundamental right to physician assisted suicide (1) the court has not recognized the right to die as a fundamental right but they have recognized the right to refuse medical care
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(2) an individuals interest in personal autonomy is outweighed by the State’s interest in preventing coercion of patients and discrimination against the terminally ill (3) the level of review is rational basis where there is a law that makes it a crime for doctors to assist in the suicide of others
EQUAL PROTECTION
1. States: the 14th Amendment provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. 2. Fed: While there is no corresponding provision applicable to the federal government, unreasonable classifications by the federal government violate the 5th Amendment due process clause which is said to be broader than the 14 th thereby making applicable to the states the equal protection component of the 14th. Therefore, where you have an equal protection issue with the federal government, call it the equal protection component of the Due Process Clause. 3. with equal protection issues, our focus is classification: instead of focusing on the law, focus on the classification within the law 4. not all classification violates equal protection since law generally involves different treatment of persons. Only when a classification is unreasonable, arbitrary and invidious, does it violate equal protection. 5. the level of review depends on the type of legislation: if 1) ordinary social and economic legislation, the level of review is rational basis, 2)if it is classification based upon gender, it is mid level of review and 3) if it is race based classification then the standard of review is compelling state interest (strict scrutiny). ORDINARY SOCIAL AND ECONOMIC LEGISLATION = Rational Basis 1. One who challenges a law on the basis of equal protection has the burden of showing that the classification has no rational relationship to a permissible governmental end and is essentially arbitrary 2. ask: is there some rational reason for the different treatment? 3. in determining the appropriate level of review, ask: is it a suspect classification? Is it a fundamental right? If not, then the level of protection is rational basis. 4. Classifications that are not suspect ( some of these we will see later as getting a
“more focused” RB test, but it is important to note that these classifications are not suspect)
a. b. c. d.
mental retardation classifications based upon age (disadvantaging the elderly) classifications based upon wealth (disadvantaging the poor) homosexuals
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6. The difference between the rational basis test under due process and equal protection: a. Due Process issues: the limitation on substantive interest must rationally relate to legitimate governmental ends b. Equal Protection Issues: the classification must rationally relate to legitimate state ends 5. Examples of legislation that classifies getting RB level of review a. truck advertising case: a city ordinance prohibited ads on the side of trucks but
made an exception for those who owned their trucks and used their vehicles to advertise their own business. The challenge was that the law drew an arbitrary line between advertisements of products sold by the owner of the truck and other truck and general outdoor advertising. The governmental concern was distracting ads on the roads. The Court held that city may have reasonably concluded that those who advertise their own business on their trucks do not present the same safety problems in view of the nature or extent of the advertising in which they use. * Note: this case could also be assessed as a Due Process issue, but is more appropriately addressed as an Equal Protection issue. Either way, it passes rational basis. The distinction is not critical, but it does matter. b. Different standards for mentally ill v. mentally retarded: Procedures that differed for involuntarily committing mentally retarded individuals and mentally ill individuals to state institutions did not violate the Equal Protection Clause. There were different procedures imposed for involuntarily committing mentally retarded people and mentally ill people to state institutions. For mentally retarded people, the statute required a showing of clear and convincing evidece that such individuals were dangerous to themselves, could reasonably benefit from commitment and that placement in a facility was the least restrictive alternative. For mentally ill individuals, the statute required proof beyond a reasonable doubt. The purpose of the law is to confine those who are dangerous to themselves and to others. The Court held that it is rational to use different procedures since mental retardation is easier to diagnose, it is a more static condition and commitment is less harsh for them than for mentally ill persons. It is harder to diagnose and discover mental illness, and mental illness can be treated with medication. No violation of equal protection. c. Alaska Case: an Alaskan law whereby income derived from the state’s natural resources is distributed to Alaskan citizens based on the length of residence violates equal protection. The Court found it unnecessary to determine whether a more stringent standard of review should apply since the law failed to satisfy even the minimal rationality test. While Alaska may have an interest in encouraging residents to remain in the state, and in promoting the prudent use of the state’s resources, these ends are not rationally furthered by distinguishing among past residents. Rewarding citizens for past contributions is not a legitimate state purpose
SUSPECT CLASSIFICATIONS GET AN ELEVATED LEVEL OF REVIEW: Gender=mid level test; Race = CSI test: 1. when a law employs suspect classification or significantly burdens the exercise of a fundamental right, the Court will strictly scrutinize the relation of the classification to the government purpose. 2. When the Court uses strict scrutiny, the burden is on the government to demonstrate that the classification is necessary to achieve a compelling
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state interest. There must not be a reasonable adequate alternative for achieving the government objective. 3. It is extremely difficult for the government to satisfy this burden. Race Based Classifications are Inherently Suspect and get CSI 1. The purpose of the 14th Amendment is to prevent race based classification 2. In order to justify a classification based upon race, there must be a compelling state end independent of discrimination and the law must be narrowly tailored to accomplish that end 3. Examples:
a. A state anti interracial marriage statute, discriminatory on its face, violates equal protection. Racial classifications are suspect and cannot be upheld when there is clearly no legitimate overriding purpose- invidious racial discrimination is not a legitimate objective which justifies the classification. b. mixed marriage statute that grants custody to same race parent based upon a state interest re adjustment problems. Even if court accepts this is as legitimate concern (adjustment problems for child) this is not enough to justify the statute. Private racial bias cannot be given legal effect.
4. Racial Segregation in Schools and Other Public Facilities (beaches, parks) a. an important line to draw in the school cases is the distinction between de jure segregation-intentional race based segregation by the government, which the constitution forbids and de facto segregation – segregation resulting from private choices, which is not a constitutional violation. (1) de jure = intentional, constitution prevents; intentional racial segregation in public schools is inherently unequal and violates equal protection. (2) de facto = segregation which is not intentionally created by government action and thus does not violate equal protection. b. 2 part analysis: 1) is there intentional segregation(de jure = constitutional violation, thus allowing for a remedy), and if there is 2) what is the appropriate remedy? (1) is there intentional (de jure) segregation? (a) today often still find de facto segregation due to societal and socioeconomic conditions. There is no right to remedy de facto segregation (b) for a remedy, must show that there was at some point an intentional act by the school borad or some other governmental body that created the segregation. (c) AND that there is currently segregation (continuing harm)
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(2) appropriate remedies: must be Reasonable, Feasible, and Workable (a) the Feds can order desegregation at any time if they find that a school was never desegregated – it can be 25 years old (b) partial desegregation is possible – if a district fixes part of the problem, they can be released as to the completed part. (ie, grades k-6 not under desegregation order anymore) racial quotas I. the use of race as a classifier to remedy race based wrongs is ok – if it was used to segregate, then it can be used to desegregate. II. BUT the use of quotas is not allowed bc they suggest a firm, inflexible concentration on numbers. III. Can use quotas as a starting point, but must be flexible and must frame the numbers more as a goal. single race schools I. some single race schools may exist after desegregation and are not necessarily evidence of failure and does not by itself establish an equal protection violation II. a school district once under a judicial decree to desegregate can implement a new busing plan which would result in one race schools if the school district had complied in good faith with the initial decree and traces of past discrimination had been eliminated to the extent possible the changing of traditional attendance zones I. site selections, teacher selections, and zoning can be used to remedy the situation II. are also used to maintain desegregation the problem of mandatory busing I. Federal court may order busing in order to achieve desegregation II. can sometimes be overly harsh, but as long as reasonable, feasible and equitable, it is ok III. anti busing laws: the court has not taken a clear position on the validity of laws designed to prohibit busing. If the anti bus law restructures the govt decision making process for racial reasons or adopts different govt processes for decisions involving race, it is likely to violate equal protection. (c) a remedy that was seen as beyond power: A federal court may not order salary increases and funding of remedial programs designed to increase “desegregation and attractiveness” as a
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remedy for past discrimination. Kansas tried to make a school district so nice that it would draw white kids from other areas in as a means to promote integration. The court said that the authority is to desegregate not to order extra money – this is beyond constitutional power (Jenkins). Gender Based Classifications Get a Mid Level of Review 1. the application of the mid level test varies: when laws are viewed as being protective of women, even in an old fashioned way, the Court tends to apply it in a more permissive way. When women are being hurt, the Court applies it very strictly, more like CSI. a. protective gender law mid level test applied more permissively (closer to RB) b. harmful gender law test is more strictly applied (closer to CSI) 2. 2 parallel mid level tests used by the Court – essentially the same Mid Level Test(s)
Classifications based upon gender must substantially relate to important government interests OR the justification for gender discrimination must be exceedingly persuasive.
3. 4.
5.
6.
In application: two parts to the test a. justification for the classification must be important b. and the relationship part of the test; consider reasonable adequate alternatives in judging whether gender based classification is necessary or not. Note that can be gender based in a way that hurts men – the SC is opposed to gender based discrimination as a whole. Classification Based Upon Pregnancy does not constitute Gender Based Classification and thus gets RB level of review. a. pregnancy is considered a medical condition – so it would be considered a classification based upon a medical condition b. thus, classification based upon pregnancy gets RATIONAL BASIS level of review. Statutory Rape Laws: A State statutory rape law which makes men alone criminally liable for the act of sexual intercourse with a female minor does not violate equal protection. 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. Draft Laws: a federal statute authorizing male only draft registration does not violate the 5th amendment equal protection guarantee bc such a classification realistically reflects the fact that the sexes are not similarly situated in regard to the need to provide combat troops. MC says that plaintiffs should have argued that also need support personnel and women could do this.
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Neutral Classifications that Have A Disproportionate Impact and per se Invalidity 1. Neutral classifications that have a disproportionate racial impact get a Rational Basis level of review. a. The fact that a law has such an impact does not change the level of review, unless you can show that the law was passed out of a racially hostile motive. b. If it can be shown that a law was passed with deliberate hostile intent, then the law is per se invalid. 2. How do you know if a neutral is in fact a racist law? a. Must look at the facts; basically looking for evidence of racism. b. NOTE: you need overwhelming kinds of facts or obvious kinds of racial/gender based classifications for per se invalidity; otherwise, going to get Rational Basis test. c. Thins to consider (1) Disproportionate Racial/Gender Based Impact. Disproportionate impact may be relevant as evidence of a discriminatory purpose, but such impact is not the only factor taken into consideration and standing alone “it does not trigger the rule that racial classifications are to be subjected to the strictest scrutiny” (2) Pattern of behavior. Ask - is there a breach of normal procedural rules? Ie, all of a sudden a zoning decision is made in private (3) Pattern. What else have they done that seems shady? (4) Historical Background. Have they always been racist ignorant backwoods assholes? (5) Specific sequence of events leading up to the decision. (6) Legislative or administrative history. (7) Actions having a foreseeable and anticipated disparate impact are relevant evidence of a forbidden racial purpose. 3. voting/race: held per se invalid to have at large voting which leads to absolute exclusion based upon race (15th Amendment: Race cannot be a basis of who can vote) 4. gerrymandering Race/Gender and Juries 1. 6th Amendment is the right to a jury trial. 2. The court reads this as the right to a jury trial including having a fair cross section; you are entitled to a jury trial from jurors selected from a fair cross section of the community 3. Cannot use race or gender as a basis for excluding people for jury service, doing so is a violation of equal protection.
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“Benign Disrimination”- Affirmative Action, Quotas and Preferences Based on Gender or Race 1. Benign gender based classifications get a mid level of review and benign race based classifications, after much struggle, now get a compelling state interest level of review 2. Gender Based affirmative action programs can more easily pass the mid level test than race based affirmative action programs can pass the CSI test. 3. Race Based Affirmative Action: Classifications Advantaging MinoritiesCompelling State Interest Test a. The CSI test for benign race based classifications is broken down into 4 factors – The government must establish that race based classifications are narrowly tailored to accomplish some compelling state interest. (1) narrowness of the purpose a) this is the most important part of the test bc it tells us what is and what is not a valid purpose for affirmative action laws b) look for: narrowly drawn race based programs designed to remedy specific identified illegal racial discrimination. c) making up for historical societal discrimination as a purpose for affirmative action does not pass CSI: the purpose of affirmative action when applying CSI is not valid – calling it historical discrimination is not precise enough to pass CSI, if it were a mid level test, making up for historical classification would pass d) race can be used as a remedy for race based wrong: the more specific the remedy, the more likely to be constitutional. e) unresolved whether “racial diversity” is a valid purpose. The majority has found that CSI is the proper test for this issue, but has never said whether racial diversity is an acceptable purpose for legislation. (Racial diversity passes the mid level test, but that is not the right test, and the court has never said whether is passes CSI or not.) (2) the degree of advantage to racial minorities (a) an absolute advantage does not pass the CSI test (ie, quotas) but a consideration of goals and objectives in terms of race is acceptable. (b) ie, if UCLA says they have to have 20% minority, they would just change that to a “goal” instead of a “quota” and it would be ok (3) the disadvantage to majority persons (a) the general harm of any affirmative action program might pass the CSI test – any kind of affirmative action program is going to disadvantage majority persons to some degree (b) the full burden of an affirmative action program may not be placed on a particular group of persons.
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(c) A program which leads to racial majorities being actually fired b/c of race fails the CSI test a person cannot be fired because of race (4) and the overall flexibility of the overall law (a) the more flexible the affirmative action program is, the more likely it is that it will pass CSI (b) one of the reasons racial quotas do not pass CSI is bc they are too inflexible (c) the issue comes up a lot in terms of race based advantages in government contracts (ie, give 10% of work to minorities to make up for past discrimination against minority companies) b. Example: A city ordinance requiring prime contractors awarded city construction
contracts to subcontract at least 30% of the dollar amount of each contract to minority businesses did not pass the CSI test and thus violated equal protection. The court said that elimination of government’s passive support for private racial discrimination would be a compelling interest.(purpose ok) But the city ordinance was not based on sufficiently specific statistical findings that the city was actually remedying the effects of specific identified past illegal racial discrimination in the city’s construction industry (remedy not specific enough-relationship to past discrimination not shown) Further, the city’s plan was not narrowly drawn. Racially neutral alternatives must be considered. (reasonable adequate alternatives) Racial quotas may not be used where case by case consideration is available (not very flexible, advantages minorities to a high degree). The city must consider the effects of its program on 3 rd parties and must limit the program in duration and scope (harm to majority high).
c. You will find that the legislative body is looking to socioeconomic disadvantages as a way to advantage races bc the court so disfavors race based classifications. 4. Gender Based Affirmative Action: Classifications Advantaging Females a. Using the mid level test, the court is more likely to uphold affirmative action programs advantaging women than the compelling state interest test would allow for race based affirmative action programs b. Classifications based upon gender must substantially relate to important governmental ends (making up for past gender based discrimination). Must take into consideration reasonable adequate alternatives. (1) Making up for historical societal economic discrimination against women does pass the mid level test (2) When determining if there is an important government interest/purpose is valid make sure that the past discrimination allegedly being remedied is an area wherein there is a history of gender discrimination (ie, medical school v. teaching) (3) Importance of reasonable adequate alternatives (a) look to see if there is another way of advancing the purpose other than simply preferring women over men. (b) Even though the court accepts making up for past economic societal discrimination as being a valid governmental end, it does not mean
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that all gender based classification will pass the test bc in some instances there are reasonable adequate alternatives. (c) Often it is the case that making an individualized determination is a reasonable adequate alternative. c. Examples
(1) if male and female are equally qualified for a job, and it is a position where women are historically underrepresented, and female gets position bc of gender, this satisfies the mid level test bc the purpose is valid and hiring the female over the male in this situation is rationally related to that purpose. There is no reasonable alternative. (2) A state statute authorizing courts to award alimony to wives but not husbands violates equal protection. Sex is not a necessary classifier in this situation bc individualized hearings on financial need already occur – actual dependency could be determined on a gender neutral/individual basis. The law was not narrowly tailored to achieve any important state interest. (3) A state university’s policy of denying admission to its nursing school to otherwise qualified males does not pass mid level test and thus violates the equal protection clause. The classification cannot be justified as compensating women for past discrimination, since women do not otherwise suffer a disadvantage in this area (not a valid purpose). The classification actually tends to encourage the traditional stereotype that nursing is a woman’s job .
Classifications Based Upon Alienage: the “sometimes suspect” classification 1. classifications based upon alienage either get a rational basis test or a compelling state interest test 2. State laws as to State benefits = CSI: most state laws classifying based upon alienage as to state benefits must pass the compelling state interest test a. ie, welfare b. State laws re all government employment c. A state court rule restricting admission to the bar to US citizens violates equal protection bc the state failed to show that the classification was necessary to the accomplishment of its purpose. 3. Political Function Exception = RB: State laws classifying for the purpose of state jobs related to the political function of the state must only be rational a. cannot regulate as to all government jobs, if this is the attempt, the level of review is CSI, and it will fail bc not narrowly tailored b. State Governmental jobs that are important and wherein those who hold them have a high level of discretion, get a Rational Basis level of review (all other jobs get CSI). There are three elements (1) state job (2) of some importance (3) involving a high level of discretion c. Police officers, school teachers, probation officers fit within this rule d. certain government jobs that are not that important or that do not involve a high level of discretion get CSI
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e. other jobs - attorneys get CSI bc not gov’t job; notary public gets CSI bc not a lot of discretion and not gov’t job 4. All Federal Laws re Immigration and Naturalization = RB: Because of Congress’ power to regulate immigration, all federal laws must only be rational a. citizens as a group being treated better than aliens as a group bc only citizens qualified for medical benefits unless they have lived in the US for 5 years – this gets RB bc Federal law re immigration and naturalization, the conceivable basis being to benefit those who are more likely to have a tax payer base and there is a conceivable connection to that govt interest b. basically, all federal laws discriminating against aliens which are challenged under the 5th amendment will pass Legitimacy of Birth = random mid level test: 1. Classifications based upon the legitimacy of one’s birth must substantially relate to some permissible state end. (this test does not consider reasonable adequate alternatives) 2. The more likely it appears that a law is based on prejudice against illegitimate children, the more likely it is that the law will be held unconstitutional. 3. Here we are talking about classifications disadvantaging out of wedlock children 4. The test is lower than mid level test but higher than RB 5. Some types of Laws that get this level of review a. inheritance rights and intestate succession laws of illegitimate children (the concern is fraud b. illegitimate children and dependency 6. laws re establishing paternity must give the minor until they reach age 18 to do so, otherwise does not pass the test. 7. Example - A state law that illegitimate children can inherit by intestate succession only if a
court has, during the lifetime of a father, made a finding of paternity is constitutional. The burden placed on illegitimates substantially furthers the important state interest in assuming the just and orderly disposition of property at death. The law aids in the difficult task of establishing paternity.
8.
Parental Rights and illegitimate Children: mid level test or RB a. any classification that treats mothers different than fathers has to pass the mid level test bc it will be considered a gender based test – (1) that is classifications based upon gender must substantially relate to important government interests (2) A law which discriminates against fathers and in favor of mothers where the parents are similarly situated except for their gender violates equal protection under the mid level test. b. Apply the Rational Basis test if classifying based upon the relationship with the child – “custodial based”
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(1) if classifying based upon the relationship with the child (ie, those custodians who have a financial, emotional or custodial connection to the child) then get Rational Basis bc it is gender neutral (2) this might have a disproportionate impact bc fathers of illegitimates are usually deadbeat assholes. c. example: a state law permitting the mother, but not the father, of an illegitimate child
to block the child’s adoption by withholding consent, violates equal protection. The classification was based on the overbroad generalization that the maternal role is invariably more important for children, regardless of the child’s stage of development. Nor did the law bear a substantial relation to the states interest in securing homes for illegitimate children
The “more focused” Rational Basis Test – politically powerless groups 1. in a few cases in what the Court considers to be a politically powerless group, the court has applied the rational basis teat in a stricter way than the mere rationality approach that we have previously studied. This is often referred to as the “more focused” rational basis test because the Court will focus more closely on the actual reasons for passing the law as opposed to any conceivable reasons 2. The test different than the normal rational basis test basically bc it is a stricter application of it - the Court will focus more carefully upon the purpose for which the law was passed (instead of assuming a conceivable legitimate purpose) and whether or not the law addresses this purpose. 3. Apply the more focused Rational Basis Test when: a. There is a law addressed against a politically powerless group/sympathetic underclass (classifications disadvantaging the poor, retarded, homosexuals and the elderly may get this test.) b. and where applying a stricter test may make a difference (that it might get stricken down) 4. examples: a. Congress changed the law in regard to food stamps and said that only people related to
those receiving food stamps could get food stamps for themselves as a member of the household. The actual reason the law was passed was to deter hippies and their ways. The law was hurting others who were not hippies and the particular law was not rationally related to any governmental interest bc the law was not there to advance any legitimate end at all. b. Law said that no group homes for mentally retarded people, but sorority houses and the like ok. The court looked to the actual purpose that the law was passed and concluded that it was because of fear and bias of the mentally retarded and does not rationally relate to any legitimate governmental end. Usually the court would accept the purposes given or think of some, but here the court evaluates the purposes given and concludes that they are not sufficient.
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EQUAL PROTECTION AND FUNDAMENTAL RIGHTS
1. When a classification significantly burdens the exercise of a fundamental personal right, the government usually must prove that the classification is necessary to advance some compelling state interest. 2. significant burden: the fact that a classification has some effect on the exercise of a fundamental right does not necessarily mean that a stricter standard of review than rational basis will be applied. In some instances, where the law does not deter, penalize, or otherwise significantly burden the exercise of the protected right, the Court has applied Rational Basis. The Fundamental Right to Vote=CSI 1. There is no right to vote recognized in the Constitution. However, the Court has recognized that the right to vote is one of the fundamental rights requiring a strict form of scrutiny. 2. The right to vote cases include issues related to apportionment, the qualifications for voting, and the right of a candidate to be on the election ballot. 3. The standard for reapportionment: the Different Standard for State Houses v. House of Representatives a. each house district must be the same size: one person, one vote. The power of your vote must be equal. A voting district which has twice as many voters as another district is entitled to twice as many representatives. b. it used to be that the Senate is based on geography and the House is based upon population. Now, both houses in a state have to be apportioned by population c. the Court has said that the constitution permits only limited variances from numerical equality for which there is substantial justification. d. but the variations allowed for state legislative bodies can be greater than those allowed for the house of representatives (1) 16% deviation allowed for State Houses (a) greater flexibility is constitutionally permissible with respect to state legislative apportionment than in congressional districting. (b) A state must make a good faith effort to construct districts as nearly of equal population as is possible, but it may rationally consider traditional political subdivisions and make the necessary minimum deviations from numerical equality. (2) 8% deviation allowed for House of Representatives 4. the shape of the district: Gerrymandering In order to violate equal protection, must show that gerrymandered districts consistently degrade the political power of an identifiable group of voters (1) a mere lack of proportional representation will not be sufficient to prove unconstitutional discrimination
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(2) rather, unconstitutional discrimination occurs when the districts are drawn up in a way which will consistently degrade a voter or a group of voters’ influence on the political process as a whole 5. The Qualifications for Being a Voter: Who Can Vote a. when the government significantly burdens the right to vote by imposing qualifications on voting beyond age, citizenship, wealth, and residence in the jurisdiction, CSI usually applies b. examples: (1) poll taxes: are seen as a wealth based classification that has no relation to voter qualification (no compelling state inteterst to justify poll tax). It is important to note that the court has never specified wealth, per se, as a suspect criterion subject to strict judicial scrutiny and requiring a compelling state interest to be justified. Rather, the Court has consistently held that classifications based upon wealth will only be struck down where, as here, they materially burden the exercise of some other fundamental right (ie, voting, transcript on criminal appeal, interstate travel) (2) durational residency requirements: there is no compelling state interest justification for requiring a one year durational residency before you can vote, but can a have a durational residency requirement that is long enough to get an accurate voter list (50 days) c. special interest elections: (1) if a district has such a special limited purpose that it is not truly a government body and if the districts affected have a disproportionate effect on certain segments of the populace, the right to vote can be reasonably limited to the affected group. (2) The court allows the possibility of special interest elections, but does not really apply it. (3) Example: A law permitting only landowners to vote in water storage district
general elections and apportioning votes in those elections according to the assessed valuation of land was said to be constitutional. The court reasoned that the water storage district by virtue of its special limited purpose and of the disproportionate effect of its activities on landowners justified the voting power being apportioned .
d. it is constitutional to take away the votes of felons 6. The Qualifications for Getting Your Name on the Ballot a. The right to have your name on the ballot, which the Court says is part of the fundamental right to vote, does not get a compelling state interest level of review. b. The standard is that the judgements regarding who gets on the ballot must be reasonably related to making the ballot manageable (1) can’t have 5000 people on the ballot – the state has to regulate (2) the State has to make a judgement call
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(3) “laws dictating who can be on the ballot must be closely scrutinized and be found reasonably necessary to the accomplishment of legitimate state objectives” 7. Information on the Use of Race, in particular, the Affirmative Action Use of Race to Aid Minority Candidates a. When race is used in drawing a district purposely to exclude racial minorities from effective political participation, it violates equal protection and the 15th Amendment. b. BUT it is constitutional to use race for the benign purpose of giving minorities the better change to get elected for office. (1) some use of race in drawing the boundaries of each election district is ok when race is used to put a majority of minority voters in a district so that there is a greater chance of a racial minority candidate being elected. (2) some consideration of race as a substitute for political affiliation is ok. If race is being used as a substitute for political affiliation, this is allowed (most black voters vote democratic). For example, if you say that we want more democrats in this district and they end up mostly being black, this is allowed. (3) Note that if this is done, however, the districts must still be contiguous. c. However, race alone cannot be used simply for the purpose of getting a minority candidate elected bc race gets a compelling state interest level of review and this would not pass the test. 8. the Bush v. Gore decisions supports and reinforces the proposition that the right to vote is fundamental and different standards as to the crucial votes is a violation of the Equal Protection clause under a compelling state interest level of review. The Fundamental Right To Travel = CSI 1. the right to travel interstate is a fundamental right 2. the scope of the right is limited and has very little to do with actual travel – in order to have a right to travel issue, there are two factors that must be present a. there must be some sort of durational residency requirement (a residency for a fixed period) b. AND there must be an impact on a necessity of life or other constitutional right 3. The Court says that durational residency requirements which penalize the fundamental right to travel by impacting necessities of life must survive strict scrutiny. 4. examples a. durational residency requirement as to the receipt of violates the fundamental right to travel
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b. durational residency requirement for voting violates the fundamental right to travel c. durational residency requirement to receive non emergency medical care violates the fundamental right to travel d. BUT a one year durational residency requirement to get a divorce does not violate the fundamental right to travel. 5. If do not have a durational residency requirement that impacts a necessity of life (welfare, medical care, survival, voting) then will get a Rational Basis level of review. Ie, a law only affecting welfare requirements gets rational basis. 6. Laws Involving Residency Only: Note that residency itself (you have to be resident v. durational residency) gets a Rational Basis level of review a. resident before you can be a fireman b. resident before you can receive welfare c. resident before you can vote d. all of the above get RB 7. Laws “something like: Durational Residency: Be aware of the possibility of a split court striking down a law for different reasons: a. sometimes the court cannot agree whether or not a law involves the right to travel, but they all strike it down for different reasons. Some chose a more focused rational basis test and call the law irrational and others see it as a right to travel issue and strike it down with CSI. b. Examples:
(1) a state statute granting tax exemption only to the Vietnam veterans who resided in the state before May 1976, violates equal protection. It was a classification based upon veteran status, but only as to those who resided in the state at the time they became a veteran. Some members of the court felt that the fundamental right to travel was involved and the law cannot pass the CSI test. Others said that it did not involve the right to travel. In the end the Court held that the law’s distinction between resident veterans is ―not rationally related to the State’s asserted legislative goal‖ of expressing its appreciation to its own citizens for honorable military service and thus does not satisfy rational basis. (2) The court invalidated Alaska’s scheme for distributing state income derived from its natural resources among its citizens on the basis of duration of residency on equal protection grounds using a rational basis standard. The court could not agree whether or not this violated the right to travel, so some thought CSI was the appropriate test.
8. Privileges and Immunities: a. Absent substantial justification, the state is required to treat all citizens alike, resident and non resident, with respect to those privileges and immunities which are fundamental to the nation as a single entity. Nonresidents must be shown to be a particular source of a problem and the law must bear a substantial relation to elimination of the problem b. If you have laws that seem to make it harder to mover interstate the court may find that it violates the privileges and immunities clause of the 14 th
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amendment. In Saenz v. Roe, the court reaches an unusual conclusion to almost forgotten privileges and immunities clause to accomplish a similar result to the right to travel cases. c. Example: CA enacated a statute limiting the maximum first year welfare benefits
available to newly arrived residents to the amount they would have received in the state of their prior residence. CA argued that they should be entitled to a rational basis level of review bc they are not denying welfare to newly arrived residents and that the saving of 10 million a year is a legitimate state interest. The issue found by the court was the right of newly arrived citizens to the same privileges and immunities enjoyed by other citizens in the same state – the court did not have to deal with the necessities of life issue bc framed it as privileges and immunities issue that affects the right to travel. Court was concerned solely on the actual deterrence to migration, and found the law unconstitutional (Saenz v.Roe)
Wealth Based Classifications 1. this is an area which has some level of confusion because the court has various approaches 2. the court will apply procedural due process issues and equal protection principles combined together in a not very clear and consistent way and that certain types of classifications based upon wealth will be shut down 3. criminal cases a. access to the courts for a criminal defendant is of fundamental importance. Wealth differences should not determine the kind of criminal justice a person receives, at least when the initiative of the criminal proceedings comes form the government b. thus (1) criminal Ds have the right to a free trial transcript for appellate review (2) indigents have the right to free representation up to first appeal 4. civil cases a. in some civil cases, such as termination of parental status for unfitness, equal justice requires that litigants not be denied access because of their inability to pay core costs. b. examples (1) the state has to waive divorce filing fee for indigents (bc involves fundamental right to marry) (2) BUT a $50 filing fee for bankruptcy was upheld under RB (3) and so was a $25 filing fee for hearing for welfare termination (4) in civil cases where paternity is at issue, indigent persons must have their testing paid for (5) where “rights of basic importance to our society” are involved, ie, termination of parental rights, then the state must provide free attorneys (a) a parent about to totally and permanently lose his or her child has a right to an attorney (b) treated like criminals in this regard
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Education 1. not fundamental, thus gets Rational Basis level of review: while education is an important social and individual interest, it has not yet been held to be a constitutional right. Thus, the Rational Basis test is usually the appropriate level of review 2. even though education is not a fundamental right, the total deprivation of it education might be. When education is totally denied to a discrete underclass of children while it is freely provided for other classes, the Court has applied a stricter standard of review, that only a law furthering a substantial state interest will satisfy equal protection. 3. examples
a. use of local property taxes to finance local education does not violate equal protection even though there are wide differences in the value of property, and hence, educational resources, among school districts. There was no showing that the state was not providing at least the minimal skills necessary for the exercise of constitutional rights, such as speech and voting. The state financing scheme bears a rational relation to the state objective of promoting local control of education. b. A Texas statute that denies free public education to children of illegal aliens while providing it to children of citizens or legally-admitted aliens violates equal protection. While illegal alien children are not a suspect class, they do constitute a politically powerless/sympathetic underclass. While education is not a constitutional right, it ―has a fundamental role in maintaining the fabric of our society‖. The state failed to show that the discrimination was justified by a substantial state interest.
PROCEDURAL DUE PROCESS AND THE DOCTRINE OF
IREBUTTABLE PRESUMPTIONS 1. the government cannot take life, liberty, or property without procedural due process. 2. timing: if you are entitled to PDP, the hearing must occur before the deprivation of the liberty or property interest. The only exception is that in exigency situations, the deprivation can precede the hearing. For example, a sexually abused child, then you can take the kid away and have the hearing after the fact. 3. need 2 things in order to have a right to notice or a hearing, and the level of procedural due process to which you are entitled is infinitely variable
a. The Right Kind Of Taking: Adjudicative Judge Like Decision
(1) individualized case by case judge like decisions raise procedural due process issues (2) the key is to ask whether there is something to have a hearing on. If there are no issues to have a hearing on, then it is not a procedural due process issue. (3) NOTE: if the “procedure” is to make a decision without consideration and without a hearing, then it is NOT an adjudicative judge like
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decision, it is something else (substantive due process, equal protection, etc) (a) example: state law that if police officer declares bankruptcy he will be fired due a concern for corruption (b) automatically fired, no notice, no hearing, just fired as a matter of statute (c) there is NO case by case determination here – beware of equal protection issues that mask themselves as procedural due process issues (and not suspect so gets RB test and passes) (d) MUST HAVE A NOTICE OR A HEARING – it is the individualized judge like decision that gives rise to procedural due process issue (4) the “judge” can be the Vice Principal, the DMV, the Court
b. A Taking Of A Liberty Or A Property Interest
Assuming that there is the right kind of taking, the key is knowing how to define a property or liberty interest (1) property interests (a) property interests are strictly dependent on law :you have a property interest in something if the law says so (b) if the law creates it, then before it can be taken, some level of procedural due process is required (c) examples: I. can only be fired for cause v. holding your job at the discretion of the police chief. The former creates a property interest in your job and thus are afforded some level of PDP whereas the latter does not create any property interest in your job. II. The law gives you the right to attend public school for free if you live in the state and thus suspending you is a taking of your property which requires some form of PDP III. The general entitlement law that if you are indigent you get welfare, or medical care or public housing is a property interest. IV. Debt collection – if the govt is going to collect you are entitled to notice. (2) liberty interests (a) liberty interests can be implicitly protected in the constitution or by a State law that says a certain liberty interest is protected (b) liberty interests that are implied from the Constution or that are created by State Law are protected by the Constitution I. the interest to be free from institutional confinement II. the whole field of juvenile delinquency cases
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civil commitment to the mentally ill transfer from being a prisoner to being put in mental institution bc the nature of the confinement is so different V. reputation alone is not liberty interest: must be closely tied to some other interest to be considered a liberty interest VI. freedom of speech VII. freedom of privacy VIII. Parental rights IX. Right to refuse medical treatment X. Right to travel XI. Right to vote XII. does not include negligent deprivation bc it must be an intentional taking XIII. prisoners rights: even if state law creates certain rights for prisoners, it does not violate procedural due process to take away those rights unless however the treatment of the prisoner imposes an atypical harsh quality of life that is different from just being a prisoner. A. once they discovered their rights, they were always suing B. ie, suing bc no meatloaf C. unless there is a fairly significant taking of a known right, no PDP violation will be found (c) example: State does not have to give a property interest to a state job if it does not want to, but one it defines it such interest as a matter of state law, then the level of process is a constitutional issue, and if the state does not give you notice or hearing before being fired, then that is a violation of Due Process rights.
c. The Level Of Procedural Due Process You Get Varies Depending Upon The Level Of The Interest At Stake
III. IV.
(1) once it is determined that a liberty or a property interest has been taken, the level of procedural due process required is infinitely variable, determined by a balancing of factors (2) usually the issue is not what is the right level of PDP, it is whether there is the right kind of taking or whether there is a liberty or a property interest at stake. (3) Nevertheless, it could be the case that there is an adjudicative judge like taking of a property or liberty interest but that the level of PDP can be challenged for being not protective enough, or that you need to asses what the appropriate level should be where there is non given. (4) 3 Factor Balancing Test: all of the various procedural possibilities (ie, formal or informal, counsel or no counsel, etc) are shaped by balancing 1) the importance of the private interests that will be
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affected by the official action, 2) the competing state interests, and 3) the risk of error if the wrong level is applied. (a) Importance of State Interests (b) The Competing State Interests (c) The Level of Accuracy The Doctrine of Irrebuttable Presumptions 1.an irrebuttable presumption classifies and usually raises Equal Protection issues 2.examples a. if you are not 21, you are irrefutably presumed that you can’t drink b. if the light is red, it is irrebuttably presumed that have to stop 3. the law are filled with them and most of them get a RB level of review 4. BUT sometimes irrebuttable presumptions present procedural due process issues – when the law makes something an issue that is worthy of a hearing (fault, residency, fitness of father), and there is a pre hearing deprivation of your right (your right is taken away before a hearing and then later on, there is a hearing scheduled on that issue 5. anytime you see the phrase “irrebuttable presumption” don’t be misled: Irrebuttable presumptions are just classifications and your job is usually to determine the appropriate level of review under an equal protection analysis. It is only occasionally that they rais PDP issues (as framed above). 6. examples a. making fault an issue: (1) if you are involved in an automobile accident without insurance the law presumes you are at fault based upon the fact that you don’t have insurance. (2) Your license is automatically suspended, and then a hearing is scheduled for sometime down the road re whether or not you are at fault (3) because fault has been made an issue, the hearing should take place before your license is suspended. (4) This is an irrebuttable presumption that violated PDP. (5) Do not confuse with a law where you license is automatically suspended if you do not have insurance. Here, the law is not making fault or any other issue something that you could have a hearing on. Would get RB bc merely a due process issue. b. Making parental fitness an issue: (1) law says that fathers of illegitimate children are presumptively unfit (2) kids are removed, then later there is a right to a hearing on the issue of unfitness
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(3) you are entitled to a hearing on the issue of fitness before they take your kids away, a violation of PDP. (4) GLA: couldn’t this also be an equal protection issue wherein mothers are being favored over fathers? c. making fraud an issue: (1) an irrebuttable presumption that if married for less than 9 months your relationship is a fraud (not entitled to benefits due to concern for fraud) (2) the court looked at it as an equal protection issue (a) classifies, marriage less than 9 months = no benefits, marriage longer than 9 months = benefits (b) passes rational basis (3) but it could have been PDP when looking at it as a presumption issue in that you are denied the benefit if less than 9 months and thus should be able to have a hearing pre deprivation on the issue of whether or not your marriage is legit
STATE ACTION
1. the 14th amendment begins: “no State” may take due process and equal protection rights. 2. Our focus is the “state” part 3. The 14th Amendment only reaches state actors 4. State Action includes all forms of acts by the government or its employees in their official capacity. a. any level of govt in the state: the state or any political subdivision therein (1) DMV (2) County (3) Cal Trans (4) The city (5) State agencies (6) Public schools 5. If you have a government employee, or city action, then you do not have a state action issue. You are told you have it, so move on.
6. you have a state action issue when a private person does it: the issue in this area is when is the state liable for private acts?
a. Basic Approach only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed to its true significance b. need to do 2 things to show that State is responsible for Private Action (1) government blame/government culpability which you find by sifting and weighing the facts
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(2) and find the facts to do so by looking at precedent. c. We use the precedents as we see them to find the kinds of facts that show state culpability. (1) not a very helpful test, but it is the only one we have (2) the reason it is not helpful is bc the Court never tells us what kind of blame, responsibility or culpability we are looking for. All we are told is that we looking for it, but we are never told the level of culpability we are looking for. 7. “under color of law” is a synonymous phrase used in various federal laws. The real key is determining when the state is responsible for private acts.
8. There are three major categories wherein the state may be found liable for private acts when the state allows a private entity to perform a public function is it a or is it just performing a public function to be considered as one of several relevant factors where there is government enforcement of private decisions is the government enforcing a neutral law is there involuntary enforcement is the ultimate effect of a neutral law to encourage racial discrimination or is there limited public involvement: govt funding, licensing or regulation of private activities, etc. funding? Licensing? Regulation? Symbiotic relationship? does it give the impression of a public entity?
When a State allows a Private Entity to Perform a Public Function 1. the State can become responsible for a private person performing a public function where the State allows a private entity to perform a public function. 2. Look at why (PDP, EP,etc) someone is claiming state action in determining if there is state action bc sometimes an entity is a State actor for some purposes and not for others a. if claiming PDP violation, less likely to find State action b. if claiming equal protection, more likely to find state action c. example: A private group running a continuation high school that gets 90% of its
revenue for the government, gives off the impression that it is a State entity and is performing a public function was not considered a State actor for purposes of alleged PDP violations. The court was looking for state responsibility and state culpability in terms the hiring and firing of teachers and found that the state was not responsible in regard to the schools’ employment policies, but may have been a State actor for other purposes.
3. Some activities are so public in character that the government will not be allowed to disclaim responsibility – where a private entity has been
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delegated an important governmental function, the State should not be allowed to avoid culpability for constitutional violations a. primary elections (1) primary elections are an important function relating to the exercise of sovereignty by the people (2) even where the primary is administered by private groups, the action remains that of the government (3) example: State turned over the running of primary elections to the political
parties, which are private actors. The Democrats only allowed white people to vote thus resulting in a white candidate that would be on the ballot. The turning over of this right by the State was allowing a private entity to perform a public function, and thus the State was liable for the equal protection violation (the Democratic party became a State Actor for purposes of the 14th Amendment).
b. company towns (1) if a privately owned place becomes the functional equivalent of a public forum, such as a municipality, it may become part of the public forum (2) A company town is a town that is owned by private individuals (3) example: A company owned town was restricting the free speech rights of a
Jehovas witness minister. The company town looked like a regular town and acted pretty much as a regular town. The issue was whether the company town was a state actor. It was held that giving the authority to the company to run something like a public entity was considered state action .
c. shopping centers (1) there was an argument that if company towns are state actors, then private shopping malls should be considered State actors as well– that the mall is the equivalent to a downtown (performs the same function) (2) the current state of the law is that private shopping centers are not state actors under the constitution d. parks (1) the court has suggested the operation of a park could constitute a public function (2) where a State is maintaining and operating a park, it is state action bc official supervision, control, or management of a facility, even when the government is only indirectly entwined in the management, constitutes state action. (3) but where a private person owns and operates the land, even if it is a “park” it is not State action 4. Modern cases say that in order to find state action using the public function theory the private entity must be exercising powers traditionally and exclusively reserved to government. a. If this rule can be satisfied, then it is conclusive that there is state action.
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b. However, if this rule cannot be met, use the fact that a private entity is performing a public function as a building block in conjunction with other factors to show that there is state action. The older cases are still relevant, they have not been reversed. 5. Under the modern rule, looking for the kind of things that used to be the exclusive province of the State (1) prisons (2) schools for bad kids 6. example: Operation of a nursing home which houses medicare patients, who are
challenging their transfer or discharge without notice or hearing, does not constitute state action. The fact that the state has legally assumed financial responsibility for the nursing care of such patients does make the activity state action. The decisions made in the day to day administration of a nursing home are not the kind of decisions ―traditionally and exclusively made by the sovereign and for and on behalf of the public‖ .
Government Enforcement, Authorizaton and Approval of Private Decisions 1. when the government is helping a private entity discriminate or otherwise violate a right 2. whether state enforcement of a policy with police, prosecutors, courts, etc is state action 3. Applications Of Neutral State Law Are Not In Violation: Generally, the neutral enforcement of its laws by state officials, will not, without more, constitute state action. In the absence of any encouragement, authorization, or approval of the challenged act, the state is not responsible for the conduct. a. where a private person wants to exclude persons not racially like them, and they are charged with civil or criminal trespass, the state is not liable b. examples: (1) set up cy pres trust wherein you are giving a park for whites only and trustees are operating and maintaining the park. The fact that it is for whites only is merely an application of trust law and thus can be enforced without state blame. (2) a private home and you don’t like black people and they refuse to leave, and the police come and haul them off, is there state responsibility? 4. Involuntary Discrimination : Where someone is forced to discriminate who does not want to = State Action. a. A neutral enforcement of a state law by a state official cannot be used to force racial discrimination on unwilling parties. b. Example: A willing seller may not be barred from selling there house to a black person bc of state enforcement of a restrictive covenant designed to discriminate based upon race. (Shelley v. Kramer) 5. Significant Encouragement: when the challenged private actions are overtly or covertly encouraged by public officials or government measures, state action is present.
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6. Authorization and Approval a. the fact that the government acquiesces in the wrongful acts of a private party does not make the government responsible for conduct. Only if the government authorizes or compels the particular conduct being challenged, thus making itself responsible for the action, is there a sufficient nexus to satisfy the state action requirement. b. examples: (1) Dismissal of employees by a privately owned school because of their speech activity
does not constitute state action. Even though the school was heavily regulated, there was no showing that the personnel decisions were ―compelled or even influenced‖ by the state action. (2) A warehouseman’s enforcement of a lien by the sale of stored goods, as authorized by the State commercial code, did not constitute state action. Action by a private party, without any action by public officials, did not make the person a public actor. In the absence of ―something more‖, there was no state action.
Limited State Involvement: Symbiotic Relationships, Funding, Licensing, Regulation 1. Here we look at factors that if taken together with other factors will aid in finding state action, but usually by themselves are not sufficient to find state action 2. The inquiry is whether there is a sufficiently close nexus between the state and the challenged entity so that the action of the latter may be fairly treated as that of the state, and we can find this by considering some of the factors set forth below 3. symbiotic relationships: a. the fact that the government and a private party are in a close working relationship or even in a contractual relationship does not necessarily establish State action. b. Seem to be looking for “pervasive entwinement” (1) the focus is on state responsibility by way of involvement of State activity in some cases (2) There must be sufficiently close relationship between the government and the private party that the acts of latter may be fairly treated as the acts of the state itself. c. examples: (1) NCAA case: even though the NCAA runs the intercollegiate program for every
university in America, the NCAA is not a state actor bc private entities make up the bulk of its members (private schools). Coach was suing the NCAA for violation of PDP rights for being fired (no notice or hearing granted), but the NCAA policy for misconduct was ok bc not a state actor. (2) Olympics Committee Case: Congress had turned over the use/rights of the term “Olympics” to the US Olympic Committee, and thus that committee got to decide who could use the term. The SF arts and athletics committee wanted to use it for the Gay Olympics, and they were refused. The gays claimed that the denial was a
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violation of their EP rights, but the threshold issue was whether the US Olympics Committee was a State actor so that the 14 th could apply. Even though they were authorized by the Federal Government to make the decisions, the committee was found to be a private entity and thus not bound by the 14 th Amendment. (3) Wilmington Parking Authority: A privately owned restaurant, located within a municipal parking authority, which refused to serve a black man solely bc of his race was held bound by the rules of 14th amendment. The land and building were publicly owned, acquired, constructed, and maintained. Guests of the restaurant were thereby afforded a convenient place to park their cars and the restaurant’s convenience for diners may well have provided more business for the parking authority. In short, the state had so far insulated itself into a position of interdependence with the restaurant that the state had to recognized as a joint participant in the challenged activity. Therefore, the restaurant could not be viewed as purely private as to fall outside the scope of the 14th amendment.
4. Government Regulation and Licensing a. Regulation: even extensive regulation of a private activity or the provisions of public benefits on a neutral basis is not, without more, sufficient to constitute state action. b. Licensing: the fact that the state licenses the actor does not make the state partner to the actions of the licensee. c. However, in conjunction with other factors will help point to a finding of state action. d. Ie, grant of liquor license is not enough to find state responsible 5. Government funding a. the fact that government provides financial support for a private actor does not necessarily make the conduct of the private action into state action b. numerous privately owned businesses and institutions rely on government contracts, and government grants and subsidies flow to numerous persons and institutions. c. Only if the assistance somehow makes the government a partner to the challenged conduct by encouraging, authorizing, or approving it is it likely to constitute state action. d. Typically just a factor to consider 6. another thing to consider - does the public think it is a state actor – does it look like a public entity
CONGRESSIONAL POWER: CONGRESSIONAL LEGISLATION IN AID OF
CIVIL RIGHTS AND LIBERTIES
1. Congress has the ability to regulate private individuals 2. Ie, Congress prevents discrimination by restaurants that server interstate travelers under the exercise of commerce power 3. Our concern is whether Congress can, by legislation, prevent private acts in violation of various constitutional rights.
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Enforcing The 13th Amendment: Federal Power to Regulate Private Conduct under the 13th 1. Congress can enforce the 13th Amendment by appropriate legislation under section 2 2. The guarantee of the 13th is against the imposition of slavery or involuntary servitude. 3. There is no state action limitation under the 13th : a. no person can have a slave b. Congress can pass laws in this area that regulate private persons 4. To base it on the 13th, you must have some classification based upon race and a badge of slavery (or slavery itself) 5. Badges of Slavery a. Congress has power under section 2 of the 13th to enact direct and primary legislation which is necessary and proper for abolishing all badges and incidents of slavery in the US. b. Thus, Congress can pass appropriate legislation to prevent private slavery, but they can also punish the imposition of badges of slavery. c. Slavery refers to all kinds of slavery (1) black (2) white (3) Dutch (4) French d. Any race based classification plus any badge of slavery would be within Congress’ enumerated power. e. As long as the legislation is a rational means of achieving that end, Congress has power to act under the 13th, subject only to rights and liberties guaranteed by the Constitution. f. Badges of slavery refers to the kinds of disabilities that were imposed on slaves (the kinds of things that they were not entitled to do). It is a disability imposed bc of your race. (1) vote (2) education (3) travel interstate (4) capacity to contract (5) ownership of property g. example: refusal of property owners to sell to blacks. Congress can pass a law necessary to abolish this kind of behavior. Thus, can pass a law that says no discrimination in the sale or rental of property, private as well as public. Enforcing The 14th Amendment
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Section 5 of the 14th Amendment provides that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article” 1. This provision gives Congress the power to enforce the privileges and immunities, due process and equal protection guarantees of the 14th Amendment. 2. in essence, Congress can make the state abide by the 14th amendment where there is 1) State Action, 2) denying someone a) equal protection, b) privileges and immunities or c) due process. 3. For Due Process and Equal Protection, Congress can only regulate State acts, but for privileges and immunities, can reach private acts as well. (sailing the navigable waters, travel interstate, travel to DC to petition for grievances, right to protection while in custody of a federal marshall) 4. As long as Congress could rationally conclude that legislation is appropriate to securing the guarantees of the 14th Amendment, the legislation is constitutional. 5. Scope of the Power a. Remedial or corrective power: The power to enforce 14th Amendment guarantees is a remedial or corrective power, not a power to define the substantive rights b. In order to be an appropriate preventative or correctional measure under the 14th section 5, the means adopted must be proportional to the injury that Congress seeks to prevent or remedy. c. Congress can pass legislation that is connected to existing rights, but cannot change those rights. If something is not already protected by the Constitution, then Congress cannot pass legislation that says the States have to recognize d. Congress is limited to enumerated powers and only address issues within those powers. e. Examples:
(1) Congress passed legislation granting the right to vote. This was challenged with regard to State elections bc states have the power to determine the qualifications of their own voters for state officers. Congress claimed section 5 and said that the law was to give that age group equal services. But age discrimination with regard to voting does not violate the EP clause and thus Congress cannot grant the right to vote. (2) Congress passed law to protect the free exercise of religion by saing that free exercise cannot be taken away unless CSI, but the free exercise clause does not require CSI, so Congress cannot change it. Congress is limited to protecting the substantive provisions and cannot go beyond them. Congress does not have the enumerated power impose a higher standard of review than granted by the constitution.
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FREEDOM OF SPEECH
The first amendment says that Congress cannot abridge freedom of speech, the 14th says that states can’t. There are various tests used by the Court to protect free speech. Void for Vagueness and Overbreadth and the Prior Restraint Doctrine 1. These are alternative approaches to a wide variety of free speech issues 2. These apply to both content based and content neutral regulations Void For Vagueness 1. any kind of law can be declared void for vagueness, but this is an especially important free speech doctrine because the Court is afraid that vague laws will have a chilling effect on speech. 2. Vagueness means that there are no reasonable ascertainable standards 3. All vague laws are overbroad to some degree, but not all overbreadth laws are vague (ie, no more than 4 people on the sidewalk at once – this is overbroad but not vague) 4. MC does not like this doctrine and does not put it on the test, but know that only vague when lacks reasonable ascertainable conduct. MC likes overbreadth better. Void for Overbreadth 1. overbreadth means that the law reaches both protected and unprotected speech. 2. The concern here is that the law is going to reach illegal as well legal speech 3. Any type of law can be overbroad, but there are particular concerns in regard to freedom of speech 4. Good key for litigators who have bad facts and bad clients bc get the litigate the law on its face and how it might be applied 5. The key is that a person engaged in unprotected speech (ie, pornography) has standing to challenge how the law might affect those engaging legal speech (other kinds of sexual speech).
6. 2 things you must do in an overbreadth analysis a. identify why your clients activity is not or may not be protected by the first amendment b. then argue that the law might be applied against other people who are engaged in activity that is protected and say why to show that the law is substantially overbroad. (looking for substantial overbreadth, that there is a substantial possibility that the law might be applied to reach protected activity)
7. Look at the law on its face, and challenge it as it might be applied to others. Example: a. law says that can’t hang out on sidewalk and behave in an “annoying fashion”. b. Ignore the vague part of it (assume they are spitting on people – something
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c. not protected by the first amendment and is clearly, quite annoying). d. The challenge of the law would be on its face, not on how it might apply to the people who are spitting, but how it might be applied to others. The law might reach (1) talking too loud (2) looking ugly (3) street ministers (4) people insisting that you take a leaflet e. thus bc there is a substantial possibility that the law might be applied to reach protected activity(ie, street preaching, etc), the spitters get to escape their bad facts and litigate the law on its fact and how it might be applied to deem it void bc it is substantially overbroad. Prior Restraints 1. prior restraints means some form restraint before the publication, some sort of prior approval. Only have a prior restraint is there is some pre publication approval process: a. the most common and modern form of a prior restraint is the injunction. b. also includes licensing and permit schemes 2. Even with regard to speech not protected by the first amendment, prior restraints are presumptively invalid. This means that prior restraints are presumptively invalid, even when the speech can be punished after publication. a. Applies even where there are important governmental interests. b. The only exception is where there is a danger that cannot be prevented any other way than restraining speech (ie, soldiers at sea and cannot be published bc will endanger the soldiers). This is usually referred to as a compelling state interest meaning that the compelling state interest is that there is no other way to prevent the danger. 3. Only applies if you have some legal restriction on publishing something 4. v. self restraint: if the law says if you publish the nudey Gillian photos, you are going to jail for 20 years, this will keep you from publishing, but this is self restraint. Self restraint is not prior censorship. Prior censorship is when the govt says you have to submit it to us before it is published. 5. Rationale: free speech protects the marketplace of ideas, and if you punish someone after they make the statement, their idea is running free. If you issue a prior restraint, you prevent ideas from getting into the marketplace – so you are in jail, but your idea runs free. 6. If the licensing or permit scheme is limited to content neutral regulations, then the court will apply a balancing test, and in applying the balancing test, the court will usually uphold a permit or licensing scheme.
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a) The balancing test: the importance of the non governmental speech interest must be balanced against the impact on free speech taking into account whether are reasonable adequate alternative avenues for the communication b) Licensing schemes for use of the public forum if the permit scheme is limited to non speech concerns (litter, traffic, noise) are not presumptively invalid: ie, if a permit is required to use a park for a protest and it is based upon content neutral factors like traffic, litter and noise, then the court will apply a balancing test and usually uphold the permit scheme c) but if it allows the administrator of the permit scheme to consider content, then it is presumptively invalid: ie, if the permit scheme says says that you can use a public park for pro government demonstrations, this is content based. d) There are two random things that flow from this that we have to know that are likely to be on the MC 1) If you have valid licensing or permit that is applied in an invalid way, then you must obey it and try to appeal (a) If the permit scheme is valid (related to legitimate non speech concerns) then the overall test is balancing (b) If it is valid, you have to obey it and try to appeal (c) Example: if you a permit scheme that you can have a demonstration on the
public streets provided that you take care of noise and traffic, and the sheriff in charge says I don’t like your message so no marching, this is a valid permit scheme applied in an invalid way, but you can’t simply ignore it and have your march, you have to obey it and appeal to a higher court .
(d) The logic for this is the respect for judicial order which the court requires 2) If you have an invalid licensing or permit scheme but a valid decision is made based upon that crap scheme, can ignore the permit scheme. (a) If the scheme is invalid (it allows for consideration of content) you can ignore it even if properly applied (b) The only exception is that if authorities get word that you are going to ignore it and have your march, and they get an injunction, this has to be obeyed or appeal (for the logic of respect for judicial order) Time, Place and Manner Regulations 1. Content neutral regulations of the time, place and manner of speech that are content neutral get a balancing test 2. this is called a balancing test because the because the importance of the non governmental speech interest must be balanced against the impact on free speech taking into account whether are reasonable adequate alternative avenues for the communication
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3. The Balancing Test For Content Neutral Speech Content neutral laws regulating time, place and manner of speech must substantially relate to important non speech governmental ends. As part of this balancing test, the court will consider reasonable adequate alternatives for both the speaker and the government.
4. As part of the consideration of the balancing test, the court will look at a. reasonable adequate alternatives of advancing the governmental ends b. and whether there are such alternatives for the speaker; some other place where the speaker could have gotten his message across 5. If the regulation is content based, then you get a CSI test: that the restriction of speech is narrowly tailored to accomplish a compelling state interest. this is the distinction you have to make at the beginning so that you use the right test. 6. Instances where you have content based a) one viewpoint over another viewpoint b) the preference for group over another group c) preference for one speaker over another speaker 7. what does it mean to be content neutral? a. government regulations that are unrelated to the content of speech c. sometimes difficult to recognize-this is usually the challenge d. examples
(1) DC had a regulation of speech in front of foreign embassy’s with two distinct parts a) cannot demonstrate in front of an embassy with a sign that mocks the visiting nation, the concern is that we do not want to bring foreign officials into town and have them read signs that hurt their feelings. This is content based, CSI applies, govt loses. The second restriction was b) no signs within 50 feet of the embassy . This is content neutral, the interest is to protect the security of the officials and now we are doing a balancing test. In balancing, the harm to free speech is not that bad, can still get your point across from 50 feet away. The harm to free speech is not significant and is not outweighed by the important government interest. (2) A city ordinance said no “for sale” signs on front lawns, could have other kinds of signs, but not “for sale” signs. The reason for the law to protect the integrity of the community: the community was a good mix of black and white families and they were afraid that realtors would incite fear and encourage white flight (bc others would see the for sale signs and put their own house up for sale). The court looked at this as content neutral, but in balancing, said that the message “For sale” was the single most effective way of selling your house, and thus disallowing such signs hurts speech too much and outweighed the governmental interest. (3) Regulations imposed re abortion (a) there must be a 36 foot buffer zone protecting the entrance and the driveway of the clinic this gets balancing test because it is content neutral, just re ingress and regress constitutional because protects the interests of ingress and regress and this is legit and important and outweighs the harm to free speech
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but did not pass as to the private entrances in the back – no legit interest in protecting the back (b) no loud demonstrations between 7:30 am and 12 noon Monday through Saturday what approach with regard to this: content neutral as well, concern for noise passes the test, early in the morning don’t be noisy, can have quiet demonstrations by passing out leaflets, can be loud in the afternoon (c) ban on offensive images observable from the abortion clinic disturbing photographs of fetus graphic offensive images content based 1. purpose is so that does not offend people 2. level of review is CSI or other strict test, but in these cases they apply CSI and thus little chance that the government has a chance of winning (d) protestors cannot approach someone within 300 feet content neutral Fairly restrictive – does it pass? Too restrictive: distances can be important .
8. The Importance Of The Traditional Public Forum a. when balancing, the court will give a lot of weight to the traditional public forum bc where there are restrictions on speech in a public forum, minority points of view are hurt significantly and it is important that these points of view are protected b. traditional public forum (1) sidewalk (2) parks (3) town square (4) case where restriction on picketing outside of state capital – this deserves a high level of protection bc it is where people traditionally make their points c. the public forum is often used by minority points of view – it hurts the underdog types/not mainstream (1) the odd voice (2) the religious voice (3) the labor voice d. there are not adequate alternatives for this kind of speech in terms of a place where they can get their message across as effectively 9. The “limited” public forum: reasonable basis test when content neutral a) if a limited public forum, one whose main use is inconsistent with free speech, is being regulated in terms of content neutral speech, the government must only show a reasonable basis for the regulation, a standard less strict than the balancing test
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b) for a place that is a public forum to some degree, but its intended use conflicts so dramatically with full free speech that the court adopts a different test c) note: if content based speech in a limited public forum is being regulated, then still going to be subject to compelling state interest test. It is only content neutral regulations in such forums that get the lower standard. d) examples 1) prisons – security of jailhouse concern outweighs concern for free speech 2) public library (not conducive to protest, but if silent protesting, probably ok) 3) airport – concern today would be security, in cases it was foot traffic 4) govt owned commercial educational TV station: station sponsored a
congressional debate, and only invited the most prominent of the candidates, and excluded one of the candidates bc he had no chance of winning. He was not excluded bc of point of view, he was excluded bc he was not a realistic candidate, thus content neutral. This was found to be a limited public forum, so the test was reasonable basis, and making decisions re who was to appear is a reasonable limitation.
d) problems with the reasonable basis test: 1) what is a public forum/ when to apply? 2) The court is not helpful in regard to what a reasonable basis test is exactly – it is quite clearly significantly below balancing and above rational basis, but still ambiguous. 10. The Designated Public Forum: Balancing Test (when content neutral) – treated the same as a traditional public forum A. a designated public forum is a forum that, through government action, is treated as though it is a traditional public forum (designated public forum = non traditional public forum made traditional by the government) B. both the traditional public forum and the designated public forum get a balancing test. C. if content based, then get CSI D. example
1) State college classrooms could be used by student groups for meetings. Thus, the state has designated the classrooms as public forums. The university of Missouri excluded religious groups from the classrooms, and this was said to be content based regulation and thus CSI that did not pass. Example of non traditional public forum that became one. 2) content neutral would have gotten balancing
11. In some instances, the Court will allow some considerations of content particularity and still give a balancing test if the following 3 factors are met
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A. where the regulation is message or viewpoint neutral (despite that there is some consideration of content) B. and there is a non speech governmental interest (ask: is there a non speech concern?) C. the regulation directly relates to the non speech interest recall that instances where you have content based are usually where one viewpoint over another viewpoint, the preference for group over another group or preference for one speaker over another speaker 12. Regulation of Symbolic Speech: if content neutral, O’Brien Test, if content based, CSI test. A. The issue with regard to symbolic speech is when does the regulation of conduct rise to level of expressive conduct (speech) that is protected under the first amendment, and what is the appropriate level of that protection B. the only real difference with regard to symbolic speech from regular speech issues is that you must determine that you have a speech concern to begin with – this is the first step C. what is speech: “In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether an intent to convey a particularized message was present, and whether the likelihood was great that the message would be understood by those who viewed it‖ D. thus, ask the following questions about the conduct 1) closely akin to speech – is it easy for people to accept this as speech? 2) communicative aspect 3) does it communicate a particularized message? 4) and is it a message that people would understand? E. once you determine it is speech, if it is content based, then it gets CSI, if it is content neutral, it gets the 4 factor O’Brien Balancing Test F. the O’Brien test is another form of the balancing test that is used for content neutral regulations of symbolic speech – 4 factors; regulation of symbolic speech is permissible if 1) the regulation is not related to the suppression of speech 2) it is within governmental power to regulate – there is an important governmental end that justifies suppression of speech 3) the regulation further a substantial or important governmental interest 4) if the incidental restriction on speech is no more harmful to free speech than is necessary to advance the government interest (are there reasonable alternative avenues for communication?) G. conduct that the court has said is speech
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1) flag burning: if the law says no flag burning this is content based bc flag burning is a form of political protest any time you prohibit it you are distinguishing based upon conduct 2) dancing and nude dancing is speech H. note: the balancing test may differ based upon the symbolic aspects 1) the symbolic aspect can affect the balance either pro or con, it may be that the symbolic aspect is more or less harmful of the government interest 2) ie, wearing black armband is not disruptive than normal speech, but flag burning creates more of a concern bc it can contribute to fires/hurts the government interest more 13. the Regulation of Commercial Speech: Central Hudson Test A. commercial speech used to be viewed as economic social legislation not protected by the first amendment and thus getting a rational basis level of review B. today, Commercial speech is protected by the first amendment, but it is not protected to the same degree as regular speech. That is, a) commercial speech as to unlawful acts or commercial speech that is misleading is not protected b) and we use a balancing test whether or not it is content based or content neutral regulation. C. We use a balancing test for both content based and content neutral regulations of commercial speech and that test is the Central Hudson Test D. 2 part test: (1) is it commercial speech? (a) an advertisement of some sort (b) the proposing of a commercial transaction – the buying and selling of things (c) it is NOT I. speech for profit – does not make it commercial speech (movies, adult book stores, newspapers are NOT) II. limited to a particular variety of things III. think of NY Times v. Sullivan – an ad to support civil rights effort: they tried to call it commercial speech but it is not IV. speech that you are being paid for is NOT commercial speech (2) If it is, then it gets the Central Hudson Test 4 factors-just another version of our balancing test (a) lawful activities – the speech must not be misleading or related to unlawful activity (only certain types of commercial speech are protected) (b) govt regulation of commercial speech is in promotion of substantial governmental interest
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(c) the government regulation must further the substantial governmental interest asserted (d) and the regulation must not be more extensive than necessary to advance the substantial governmental interest I. this is the most important part of the test II. this is where it will win III. the court is willing to assumed the first three, but ultimately the court says that you hurt too much speech and should do it some other way E. If it does not qualify as commercial speech, then analyze as speech issue as normal. F. examples:
1) The court upheld a ban on casino gambling ads on the grounds that the ads advanced the evils of gambling. 2) Regulation that prevented TV stations from accepting ads for the state lottery in states where lottery was illegal was upheld on the grounds that it advanced the government interest of limiting the lotto. 3) Tobacco companies had entered into consent decrees not to advertise in certain kinds of ways and Mass passed laws that went beyond the consent decree; they said that they could not advertise certain kinds of tobacco products (snuff, chew, etc) within 1000 feet of public schools and parks. The Court said that there was a substantial interest, and the law furthers it, but the particular regulation hurts too much than it should bc in some urban areas it would mean that there are no ads at all. Thus, it violates the Central Hudson test.
14. The Government As A Speaker A. The government can have a message, a point of view: there is no requirement that this point of view be content neutral B. It may be a rational basis test or it may be no limit whatsoever, but no balancing test-the normal free speech tests do not apply C. ie, the government is allowed to be in favor of full term pregnancies and favor the Contras in El Salvador. D. Subsidized speech: The government is also allowed to act as a speaker expressing a particular message itself or by funding private groups to express its message. In doing so, it can choose to favor one program over another. For example, the case where the government funds the National Endowment for the Arts, the government was allowed to impose on the group the provision that they must consider “general standards of decency and respect for the diverse beliefs and values of the American public” in awarding grants. E. Library censorship: The court has held that the First Amendment does impose some limits on the power of a local school board to remove books from the school library. A plurality of the Court concluded that books could not be removed from public high schools for the purpose of
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restricting access to ideas with which the board disagreed. The justices generally agreed that books could be removed bc they were historically inaccurate or educationally inappropriate. 15. Regulation of Speech in Public Grade and High Schools : Reasonable Basis Test A. college speech is the same as speech generally – there is really no govt influence here B. but in public grade and high schools, the power to require mandatory attendance implies a responsibility for those who have to attend C. Students rights of free speech at public schools are not coextensive with the rights of adults in other settings and thus speech in the school setting gets a reasonable basis test D. Reasonable Basis Test - speech in public grade and high schools can be regulated by the government if reasonably related to educational pedagogical goals. E. Examples:
1) The wearing of a black armband in school to protest the Vietnam war was “akin to pure speech” and hence protected by the First Amendment. In the absence of evidence that the symbolic conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school, the school could not forbid the kids from wearing them. 2) But, where kid made a sexual speech during his campaign to be a school representative and was suspended, the Court held that he could be punished bc the school had an overriding interest in teaching students the boundaries of appropriate social behavior. Illustrative of the fact that this kind of speech would have been protected anywhere else, but not at school.
16. Speech Of Government Employees A. Protected free speech for a government employee includes speech regarding matters of public interest B. Thus, government employees have the right to speak on matters of public interest, but the government as an employer maintains the right to fire you if you say things that irritate them or are offensive to their position as a government office C. the question is whether what the person said is a matter of public interest or if what was said is merely offensive to general employment policy for which one can be fired D. examples
1) assistant DA was fired for sending around a questionnaire re what he co workers thought about their employment and their boss. This was viewed as being critical of the DAs office and she was fired. It was held that she could be fired for her actions bc the questionnaire was not a matter of public interest, but rather an employment policy for which she could be fired.
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2) When the Sheriff heard that Hinkely tried to kill Reagan she said she hoped that he got him next time, and she was fired bc it was said to be an inappropriate statement for a government employee. This was held to be protected speech bc it was a comment regarding a matter of public interest and thus it is protected free speech and cannot be fired speech of that sort.
E. political affiliation: you cannot be fired bc of your political affiliation, unless the nature of the job is one that requires membership in the party. (political in nature or confidential in nature) 17. Electronic Media A. private broadcasters are private. They have government licenses, but the license does not convert them into state actors, they are private actors and can make their own choices about their programs. B. the government has a greater power to regulate speech on broadcast radio and TV than it does elsewhere. This is bc TV and Radio is pervasive (it enters our homes in the dead of night) the government has a greater justification to regulate it and thus it is afforded a lower level of protection. C. For content based regulation of radio and TV the court applies a balancing test: regulation of TV and radio must substantially relate to important government interests. (weigh the harm to free speech against the government interest); Content-neutral regulations get the RB test D. “safe harbor” provisions 1) laws that say “indecent speech must be between 10pm and 6 pm 2) this limit would be unconstitutional any place else, but not for TV and radio bc of the strong state interest – the lesser standard for content based regulation allows for more regulation E. Regulation of Cable: normal tests apply here 1) not viewed like regular broadcast TV bc you chose it so not as pervasive 2) the normal tests apply a) Content neutral = balancing test b) Content based = CSI test F. Internet: 1) the court said that you have may have a compelling state interest in protecting children, but when the internet is regulated, it impacts everyone. 2) So when judging law re internet regulation, must consider how it affects everyone, which means that unless it is hardcore porn under the Miller Test, it is protected as usual. G. Dial A Porn 1) Congress has the right to prevent pornography, but most phone sex is not porn 2) Thus, to the degree a regulation re phone porn restricts anything that is not hardcore porn, it is restricting free speech.
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18. Election Speech A. disclosure requirements 1) exposing from who and how much candidates get from various people is for the most part constitutional. 2) Exceptions: with regard to political groups that are peculiarly unpopular (ie, socialist workers party) it is a violation of their free speech rights to make them disclose who their contributors are bc then no one would contribute bc they are freaks. B. limitations on contributions to candidates: usually constitutional (ie, can’t give more than 25 grand to various parties is constitutional) C. limitations on contributions to various causes: cutting edge area of the law. Known as “soft money” when you give to certain groups like pro life or the NRA. There is an attempt to regulate soft money more and more, and this will give rise to numerous constitutional issues. D. Limits on expenditures: 1) The court has upheld conditional limits on expenditures 2) It is constitutional to say to somebody that you can get federal funding only if you agree to limit your expenditures 3) But the court has struck down overall expenditure limits – “wealthy people cannot spend as much as they want to get elected” found to be unconstitutional. Content Based Regulations 1. content based regulations get strict test 2. the reasoning is that when the govt is controlling the content of speech, it is important for the court to step in b/c important for marketplace of ideas. 3. Note that content neutral laws that are applied in a way that is content based, then the law will get the stricter test.
There are several specific Strict test for content based regulations : Radical Political Speech: Clear and Present Danger Test Sexually Explicit Speech: CA v. Miller test – all but hard core porn is protected Defamation: NY Times v. Sullivan, Gertz or Dunn and Bradstreet Fighting Words: Otherwise apply CSI to content based regulations: that the restriction of speech is narrowly tailored to accomplish a compelling state interest
The Clear and Present Danger Test for Radical Political Speech 1. must meet three elements to punish radical political speech, if one of the elements is missing, then the speech is protected by the 1st Amendment. a. words of excitement (1) advocacy of unlawful acts (2) inflammatory not enough
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b. where the speaker has specific intent of inducing illegal action c. and the likelihood of success in achieving the illegal or unlawful end 2. prior restraints are valid if there is a clear and present danger of evil. This is rare. Ie, an injunction to have a rally. It is a prior restraint, but would be upheld if it passed the clear and present danger test. Sexually Explicit Speech (porn) – Miller Test 1. Historical analysis may be important when dealing with Changes in the Court: a) Historically porno was beneath constitutional protection, some tried to argue that the test was clear and present danger, but because Porno was beneath constitutional protection and they didn’t need to classify it as C&P danger. b) Later the court looked at the prurient interests of porno, the itching longing lustful thoughts. c) You had to judge porno based on the impact on the average reasonable person. TARP. They could not base it on the impact of children, but on the average reasonable person. This was important. d) Judge looking at the material as a whole, not just the obscene parts. e) Eventually the warren court protected all sex explicit material unless it involved non-consenting adults or children. They said that consenting adults could view what they wanted to.
Porno in the Home: A combo of free speech and the fifth protected you if you have porno in your home, but that is the only place that you are protected. 3. NOW: Miller v. California: MILLER TEST: Three-part test - Each element
2.
of the three-part test must be satisfied in order to consider sexually explicit material as obscene. . The first two parts you have to look at contemporary standards.
a) Whether TARP, applying contemporary community standards, would
find that the Material taken as a whole appeals to the prurient interest of TARP?
b) Is material patently offensive as specifically defined by the
(1) Look at material as a whole. Is there natural curiosity of sexual matters, don’t just look to those people in society that can be harmed (children). (2) Look to Contemporary community standards. This does not mean that you can use these standards to preclude people from making movies that are offensive in the community, it must only be applied to porno. (Jenkins case) (1) Because it is vague, they have to spell out what is porno, so now each state has statutes that spells it out.
applicable state law?
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(2)
c)
Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific values. So it has to have serious value. (If it lacks
SLAPS Value)
Look to Contemporary community standard: NY might be different from Utah, and that is OK, there can be variance in the states. The communities can decide.
1) It is this part that is less protective of sex speech than the other court. Before it was utterly without revealing value. 2) Look to the Nation wide standard, not contemporary. 3) Example
Jenkins: Georgia found that movie “Carnal Knowledge” was without
serious value in their community. This was not a porno, it was a mainstream movie that used profanity. SC said “in Miller, when we said to apply contemporary community standards that does not mean that you can apply to whatever you want, it only applies to the first two parts of the test, but part three is a nationwide standard. We meant hardcore porn was not protected if it failed test, but everything else is.
4. CHILD P ORN: Never Protected,
a) not even when you get it in your home. Reason is the production of child porn means that kids are victimized. b) Government has interest in protecting children from victimization. c) Child porn argument re Women Victimized: Tried to use child victimization rationale with women, court said no too bad, this is just sexual explicit material and must fail the Miller test. Profanity and Fighting Words 1. Big issue: Level of protection given to profanity, not the same as porno, porno is protected unless you satisfy Miller, Profanity is protected unless they are fighting words. 2. Fighting words. There have to be three things. a) Right kinds of words, those that by their very utterance inflict harm or call for a physical response if you are capable of it. Profanity, vulgarity, swear words: 1) Ex: City regulated hate speech, burning cross in the lawn of black family made illegal by statute. Court said burning cross was protected by the first because it protects offensive speech. There was no profanity here. Hate speech absent profanity, or vulgarity is protected by the first amendment. 2) Swear words in attacking other’s religion, this is protected by the first amendment. b) Face to face confrontation. 1) Not broadcasting over TV. (This is Not face to face.) 2) Has to be in a situation where if you were capable you would respond.
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(i) “Fuck the Draft” on the leather jacket was protected by the constitution. c) LAW must be limited to fighting words, 1) You have to use those words, it has to be face 2 face, and law has to be limited, can’t be overbroad. 2) Example
Huston v Hill: profanity to police officers in a face to face confrontation with police that were harassing the gays, but the statute was not limited to fighting words so this is protected.
Defamation: The libelous/slanderous statement is beneath constitutional protection. – Ny Times, Gertz or Dunn and Bradstreet 1. Free Speech interests (a) “If you too easily convert general Gov’t criticism into defamation of an individual than you have made it impossible to criticize the Gov’t.” (b) “It is not sufficiently protective to political speech to limit protected speech to true speech. Otherwise we would not be able to talk to each other, speech implies exaggeration.” (c) Speech needs room for rhetoric. (d) Needs to be robust and uninhibited 2. Public Official and Public Figures: NY Times Standard: (a) Standard: ACTUAL MALICE: Before a public official can maintain action for defamation, they must show “actual malice” (intentional falsehood or reckless disregard for the truth). 1) Reckless disregard: entertaining serious doubts about the truthfulness of the statement and not verifying. (SUBJECTIVE) 2) Test Hypo: Allan makes false statement out of hatred ill will about Betty, is this actual malice? This is here to mislead you that malice was relevant, and It is NOT. You need intentional falsehood or Reckless disregard. That is the key, you don’t have to show that a person intentionally lied about another. 3) Case: DA upset with local judges who approved expense accounts. He was unhappy with the refusal to improve these accounts and said there should be an investigation for the racketeering influence of these vacation minded judges. Defamation in two ways. Vacation minded and racketeering. Was there was a personal belief that Garrison thought that they were really vacation minded and racketeering influenced? Maybe, so not A.M. 4) Damages: can get actual damages, presumed, and punitive. 5) Public Figure: People that invite publicity and voluntarily avail themselves into the fray.
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6) Public Officials: anyone who holds any type of elective office, running for office, but not all gov’t employees (not the postman), but all high level gov’t officials, elected or appointed. (a) Assistant superintendent of a public ski resort was found to be a public figure. 7) Burden of Proof: Plaintiff’s burden to prove statement is false. (M.T.) 3. Private Figures in public View: (a) Standard: NEGLIGENCE is the minimum standard when private people in the public view are defamed. NY Times case does not apply. Gertz. (b) Damages: i) If negligence is shown, must show actual damages, cannot recover presumed damages or punitive with negligence. ii) If Actual malice is shown, can recover punitive. (c) Private v. Public figure: ex. Gertz was a prominent attorney, in a high profile civil lawsuit against the police. And was claimed to be a communist sympathizer. And the court said that he was a private figure. 1) Wife of Firestone owner in divorce case, Mrs. Firestone a private figure. No indication that she thrust herself in the limelight. (d) Involuntary Public figure? May be Possible to be involuntarily drawn into becoming a public figure. 1) Guy that saved the presidents life. Paper called him gay. (e) There are two types of public figures. 1) Those for all purposes: actors, sports stars. 2) Limited public figures: for the purpose of a controversy: President of the MADD, she is a public figure if she got a DUI herself, but if you said she was a shoplifter that is not a public purpose. (f) Burden of Proof: plaintiff has the burden of proving falsity. (M.T.) 4. Private person not in public view: (a) Standard: Probably it is a standard of STRICT LIABILITY. i) Dunn and Bradstreet: credit reporting agency falsely reported a bad credit report that defames a company and individual. The issue is whether a private person not involved in public concern can get presumed damages. There was no discussion about whether they had to prove negligence in private individuals in matters not in public concern. (b) Damages: If you meet the Gertz standard, you cannot get presumed, but those that are not in the public concern can get presumed damages and punitive damages. Might only get punitive damages if you can prove actual malice in negligence standard case. May be punitive if just negligence though, it is unclear. (c) Burden of proof:
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i.
ii.
iii.
CL: Defendant’s Burden to prove no defamation: if you made a defamatory statement it was presumed false and the burden of proof was on D to prove that the statement was true. MT: Plaintiff’s Burden to prove defamation: first amendment says that the plaintiff should have to show that the statement was in fact false. Private/Private: may be back to defendant’s burden to prove it is true.(from Torts)
5. False light case: making any person (public/private) look like something they are not. These cases are looked at like defamation cases and you must show actual malice even for private individual. Under the NY times case, or maybe Gertz. a. But the court uses an actual malice standard for private individuals because of the uncertainty what the level of harm would be for the false light. 6. Misappropriation: when you take a likeness for commercial purpose or gain. a. Zucchini case: the Misappropriation claims were consistent with the first amendment. The broadcast of his act of being shot out of a cannon was consistent with the misappropriation claims. 7. Intrusion: some type of illegal act to gather information. The court is sympathetic to these claims and not sympathetic to the free speech of it. Recently the court said that the media is not protected by the constitution to participate with the police in the ride along cases. a. Not protected by the first amendment 8. Revealing private facts: a. Private fact not of concern to the public. b. Fact is of an offensive nature. Where the info is “so private and it shocks the conscious.” Or of such limited news value that it shocks the conscious. c. Other instances where reveling private info was published and in all cases the court found that the private info was protected by the first amendment. 1) If media reveals the name of minors, rape victims, judge under investigation, protecting them is not a CSI. In all of these cases the private info was protected by the first because it was said to have public concern, the state could not punish the revealing of the information. 2) Example Barticki v. Boifer: Facts: Law preventing the electronic seizure of conversation. Union people were talking on the cell phones and conversation recorded They were threatening to blow up porches. Considered private speech public interest. The seizure was illegal and it was a crime to disclose the contents of an illegally obtained recording.
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(a) Congress cannot make it a crime for the disclosure of illegally obtained recordings by a party who did not first illegally obtain it. So people that broadcast illegally obtained material are not liable if they did not illegally obtain it if it is a matter of public concern. Privacy of our conversations, affecting private speech. Info was a matter of public concern, advancing public speech. (b) If private speech private concern, not known if the broadcast by a different person would be legal, but two members of the court said that if it was private speech it would not have been ok. It would be protected absent matters of public concern, because matters of public concern is less important to protect. The Freedom to Believe/Freedom From Compelled Expression 1. the court says that the Freedom to Believe is a corollary of free speech 2. The first amendment includes both the right to speak freely and the right to refrain from speaking at all. 3. in essence, no one can compel you to talk about what you believe 4. if freedom from compelled expression is significantly burdened by government, the regulation must be narrowly tailored to serve a compelling or overriding state interest. 5. ie, case re Pledge of Allegiance the court said you have the right to affirm or not to affirm you respect for the flag. The Freedom of Association 1. Also a corollary of Free Speech – the freedom of speech includes the freedom of association, that is, the right to band together and espouse a particular point of view 2. The Freedom of association cannot be taken away unless there is some overriding compelling state interest. 3. Limits On Association Activities a) In order to be held liable for the activities of a group with which you are associated, you must 1) Know of the illegal aims 2) And share the goal of those illegal aims b) this might be relevant today in re the American Taliban 4. Limits on Association Membership Policies (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)
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1) expressive associations are those that band together for the purpose of a common message and get CSI test I. regulations on these kinds of groups is protected by a compelling state interest II. ie, a state law that prohibits sexual orientation discrimination, but the church is anti gay in that it does not allow gays to be members of the congregation. The church is expressive bc it has a pro family message and thus the State must have a compelling state interest to stop this III. in the same way, the boyscouts are expressive for purposes of pro family values and thus there must be a compelling state interest to stop the discrimination against gays in the boyscouts. 2) societal associations are those that band together for the purpose of hanging out together – no goal in mind, get RB test I. ie, a sorority, or Ians internet porn club II. this kind of association is not entitled to the same level of protection III. gets rational basis 5. Compelled Association A. The court has upheld rules that require individuals to pay dues to unions or other groups or even rules that require you to be members of certain groups (ie, the state bar) B. This gives rise to free speech issues when a group that you have to pay dues to or be a member of supports a particular belief that you do not C. Thus, the right to compel you to pay dues has given rise as to how the government can spend it: if the association is spending your dues on things unrelated to what you think you are paying for, then you are entitled to reimbursement D. example: The CA bar adopted a freedom of choice campaign and those paying dues
that were pro life were funding a political message that was contrary to their views. The Court held that if the compelled dues were used for activity not related to what were appropriately activities promoting lawyers, then the members were entitled to reimbursement (ie, if using 10% of its funds for issues other than promoting lawyers, then you get a proportional amount of your dues back)
6. Compulsory Speech for Third Parties A. a particular individual cannot be espoused to hold someone elses point of view B. examples
1) A state law permitting the use of privately owned shopping centers for speech purposes does violate the property owners rights of belief and association. Since the shopping center is a public place, there is no likelihood that the property owners will be identified with the views being expressed and they can expressly disavow any such association. Finally, government is not prescribing the message being expressed.
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2) State of CA had a comprehensive marketing scheme for no the not so plentiful CA fruits (prunes, plums, nectarines, apricots) requiring that growers of such fruits contribute some portion of their revenue to a central marketing scheme, the focus being that this stuff is really good (like the CA cheese lobby). One of the growers did not want to be identified with all of the others bc he felt his nectarines were superior, and that he was being compelled to espouse a point of view that was not his own. The Court said that this does not violate your free speech rights bc you can have your own personal commercial that says yours are better. 3) However, note that recently a similar issue came up in regard with mushrooms, and the court said that it did violate free speech rights bc the mushroom scheme was strictly a marketing scheme to “buy mushrooms” without more (and thus totally free speech) whereas the apricot case was a comprehensive marketing scheme that did more than relay a message to the public.
THE ESTABLISHMENT CLAUSE
1. don’t confuse with the Free Exercise Clause, they are different 2. The Establishment Clause provides that the government may not pass laws which aid one religion, or prefer one religion over another religion. 3. The operative test for determining when government aid to a religious institution violates the Establishment Clause is the three fold Lemon Test which provides that 1) the principal purpose of the aid must not be to advance religion, the 2) primary effect of the government action must not be to enhance or inhibit religion and 3) the government action must not foster an excessive entanglement with religion. a) Principal purpose of the aid must not be to advance religion 1) The government aid must have as a purpose the advancement of some secular end (non religious) 2) The court is willing to assume that aid given to parochial schools is to advance the education of the kids that go there (and not to advance religion). 3) Ie, mandatory prayer in schools would have the purpose of advancing religion 4) The courts treatment of a moment of silence is a good example: Alabama
had a law requiring prayer in schools, this was struck down, so then they changed it to a moment of silence for prayer, which was also struck down. Finally, they changed it to a so called neutral “moment of silence” but the court said that if the evidence is clear that the state passed it for the purpose of advancing religion, then it is in violation of the Establishment clause .
b) The principal effect of the government action must not be to enhance or inhibit religion 1) The focus is that it should not advance religion 2) The principle requirement is that the aid be limited to secular aspects (aid for a science building is cool, but aid to build a chapel is not) 3) The determination here is what advancement of religion is too much? This is always going to be a difficult call, but in making the distinction
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there are several factors that are going to be important in helping you resolve: I. Is the aid in a form more likely to advance a religious goal than can be easily diverted from a religious goal (b) for example, the court found that private schools can get reimbursed for standarized multiple choice exams but not for essay exams bc on essay exams students can get extra credit for integrating their religion into their exam. (c) The school board can provide bussing to school for both public and private, but not for field trips for religious schools II. Aid that is given to students directly is more likely to be upheld than aid given to the school itself III. Is the aid given to all schools, private and public alike, or just to religious schools? If the latter, less likely to be upheld.
example: state gave tax break to expenses related to education (backpack, pens, three ring binders in the public school). if you are a private school student, this meant that your parents got to deduct that stuff and all of your tuition. But the advantage overall was felt by public schools bc there are more of them so the court upheld it.
Aid to college students is more likely to be upheld bc it has less of an impact on students of this age c) The government action must not foster an excessive entanglement with religion 1) in making sure that the second part of the test is not violated, there must not be excessive entanglement between the church and state 2) this means that any aid in a form which requires constant oversight to not be misused religiously will violate the EC 3) it is important to note that any kind of aid to religious schools might be misused in some way, but if the court finds that the secular part of the test is to advance the secular end they will not be that concerned with this part of the test. 4. Note however, that the Lemon Test is under attack and the court has increasingly used 2 different developing tests: the endorsement test and the coercion test. These alternatives to the Lemon Test are considered more tolerant of government accommodations of religions and have the potential to replace the Lemon Test, but the Lemon Test is still the operative test. a) the endorsement test: makes it harder to aid religion, stricter of the two 1) this test provides that the government violates the Establishment Clause when it endorses religion 2) by endorsement, the court means symbolic endorsement (?) 3) a majority of the court is not bought off by this test b) the coercion test: more conservative test, makes it easier to aid religion
IV.
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1) the coercion test provides that government aid to religion ought to be constitutional unless the government goes too far and coerces people to do what they do not want to do 2) the basic premise is that the government should be able to help, just not overdo it to the point where it feels like coercion. 5. Random EC Issues that Don’t Get the Lemon Test; “other Establishment Contexts” a) Religious Displays on Public Property – “balance” 1) the court has employed history and tradition in upholding governmental recognition of holidays 2) however, government may not recognize a religious holiday in a way that has the effect of endorsing religious beliefs 3) any religious displays on public property must have the appropriate balance of all aspects of heritage. 4) For example, if there is a nativity scene on public property, also should have a menorah and a Christmas tree and shopping bag displayed, and can’t have the nativity scene at the courthouse and then the menorah and shopping bag a block away – the balance of heritage must be present together. b) Paid Chaplains and Legislative Prayer 1) This issue arises from a case wherein a paid chaplain at the opening of Congress was in violation of the Establishment Clause. 2) Congress has had a paid chaplain leading a commencement prayer since its establishment and thus the court said this was not in violation out of respect for tradition. The drafters of the First Amendment had not perceived legislative prayer as a threat to the EC. c) Social Welfare Programs 1) the fact that religious institutions are incidentally benefited as participants in a generally applicable, secular governmental social welfare program does not violate the Establishment Clause 2) example: Congress established a program for addressing the problem of
illegitimate children. In many cities, churches asked for funding to pay for their programs addressing this problem (by way of promoting abstinence before marriage), so in essence, the churches were getting money to promote a tenet of their religious beliefs. The Court upheld the legislation bc it was addressing illegitimate children and just bc this paralleled the views of many religious institutions did not mean that it was in violation of the establishment clause .
d) Concern for the Establishment Clause is not a Compelling State Interest 1) concern for the establishment clause as a means to suppress free speech has been held to not survive strict scrutiny 2) example: Winmar Case I. A state university allowed student groups to use the classrooms for student association meetings, but not for religious student groups
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The exclusion of religious groups was seen as a content based regulation for use of a designated public forum and thus the level of review was CSI The issue then became whether or not concern for violation of the Establishment Clause was a compelling state interest and the court found that it is not. Thus, classifications for religious and non religious speech for the use of public property get CSI and the establishment clause is not a CSI.
FREE EXERCISE CLAUSE
1. if the government undertakes to burden persons bc of their religious beliefs, there is a violation of the Free Exercise Clause. 2. Most laws, however, only incidentally burden or coerce religious beliefs while pursuing a secular public welfare objective. Coercion of religious belief is the essence of a free exercise claim 3. There is a 2 part approach to dealing with Regulations on Religion a) if a law is passed for the purpose of regulating religion, then it must survive the compelling state interest test 1) if the burden is significant, the government must demonstrate that the law is narrowly tailored to achieve a compelling state interest. 2) it is appropriate under this test to provide exemptions for certain religions where necessary bc an exemption is looked at like a reasonable adequate alternative. b) if the law is a neutral law of general applicability which incidentally impacts religion (a law that is intended to regulate a general problem in society) it is NOT compelling state interest. The cases do not tell us what kind of test it is, MC says apply a balancing test. 1) By balancing, you balance the government interest against the harm to free exercise. 2) the fact that a religion neutral, generally applicable law imposes a burden on a religious group does not, without more, require an exemption under the Free Exercise Clause. 3) However, if the burden is great – “a uniquely religious impact” , then an exemption must be made even when balancing. 4) Such exemptions do not violate the Establishment Clause (even though favoring one religion over others) bc if the only favoritism of religion is necessary to protect free exercise rights there is no violation. 5) Note, however, that such exemptions will violate the EC if they are unreasonable in terms of favoring religion. Wish MC a nice summer for an extra point
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