Con Law - Outline Sinner

CON LAW OUTLINE – INDIVIDUAL RIGHTS – MCGOLDRICK – SPRING 2006 I. HISTORY – DUE PROCESS CLAUSE (DPC) A. 5th A: applies DPC to Congress (so reference when any Federal issues) B. 14th A: applies DPC to States (so reference when any State/Local issues) 1. Doctrine of Incorporation: Ct took the 14th A DPC and made applicable to the States the most important parts of the 10 Amendments (all but part of the 5 th A and 7th A). So, we will say it is a 1st A and 14th A issue to cover the doctrine of incorporation. SUBSTANTIVE DP & THE RATIONAL BASIS (RB) TEST A. Generally: The level of protection given by the DPC is Rational Basis. 1. Anytime the gov limits your desire/ability to do things w/o DP, you can challenge it, but the gov need only pass the RBT. 2. RBT is a very low level of review 3. Presumption in favor of constitutionality of the legislation. 4. Always the fall back test. B. Rational Basis Test: Laws restricting substantive interests (desire to do things) must rationally relate to some legitimate/permissible governmental end/interest/purpose. 1. 2 Parts a. (1) END: Is there a legitimate governmental end?  Easily satisfied. Speculate if necessary. Ct will always invent one. b. (2) RELATIONSHIP: Does the law rationally relate to or advance that legitimate governmental end?  Consider both  The actual reasons for the law, AND  Any other conceivable legislative reason for the law.  ―Rational‖ = Is it conceivable that the law would advance the governmental reason?  Something can still be rational even if it is not necessary.  If the two factors can be satisfied, then ct will not bother to look at evidence that the law was passed for a bad reason (e.g. to please lobbyists).  To defeat RB, a person has the very heavy burden of showing that there is NO conceivable justification.  Easily satisfied b/c all that cts require is that it conceivable that it advances the legitimate governmental ends, not whether it actually advances them. 2. Level of Review: Deferential/Permissive Scrutiny. 3. Carolene Products: Congress may prohibit interstate shipment of food substitute product that is deems injurious to the public health as long as it has a RB to do so. Here, the court said it did. 4. Williamson v. Lee Optical: State law prohibited the fitting and selling of eye lenses and frames without a prescription from an ophthalmologist or optometrist. a. Ct applied RBT: Legitimate gov ends were to regulate eye health and protect local optometrists. The law advanced the gov interest b/c regular visits to optometrists will ensure eye health. Thus, the law passed the RBT. 5. ROAD MAP: CONTRACT CLAUSE (KC) A. Article 1 § 10: No State may impair obligations of K unless a legitimate public interest out weights the current K interests. 1. KC Issue Only When State/Local Laws Retroactively Impair Pre-Existing Ks a. The KC is NOT applicable to the Federal gov.  If it is a Federal law impairing K relations, then the law does not fall under the CK, but rather is a DP issue which gets a RB level of review. Watch out for this on the exam!! b. KC is NOT applicable if the law applies prospectively. II. III. Sinner -1- 8/12/2008 B. c. Pre-Existing Ks include both State contracts and contracts b/w parties. 2. Motive: to protect economic interests. Public Purpose Balancing Test: Balancing pre-existing K rights w/ current public purposes. 1. 3 Parts a. (1) Must be substantial impairment to the pre-existing K rights; AND  Ct will look at…  Severity of the impairment: some impairment is not enough, but it does not have to be complete/total destruction of K rights.  Rx investment-based expectations  Degree to which the subject has been regulated in the past  It is harder to show substantial impairment where the industry is heavily regulated b/c if high regulation in past, further regulation should have been expected, so not a substantial impairment.  The ct will usually find ―substantial impairment.‖ This is usually not the debated part. If Substantial Impairment, then… b. (2) Must be some significant and legitimate public purpose which justifies such impairment; AND  Modernly, ct does not require a strong purpose. Ct usually finds that the gov interest is sufficient.  BUT: Ct will require a stronger purpose were the gov is impairing its own K.  A slightly higher level of review than RB. c. (3) Any new conditions imposed on pre-existing K rights must be rx and those new conditions must rxly advance the public purpose  Look for rx balance b/w competing interests—gov interest of promoting the public interest v. K interest of preventing harm.  Presumption in favor of state legislation. d. To survive a KC challenge, a state statute must either:  Deal w/ a broad, generalized economic social problem;  Operate in an area already subject to state regulation when the K was made;  Effect a merely temporary alteration of K relationships; OR  Apply to a broad class of persons e. V. difficult to establish a violation of the K clause. 2. Examples a. US Trust of NY v. NJ: NY and NJ enacted covenants to protect interests of its bond holders. This balancing test was made so that states do not impair their own K based on its own determination of rxness and necessary. This is inappropriate. T/f the court must engage in this balancing test. Here they found that ▲‘s repealing act harmed Ps K interests and t/f could not be upheld.  What was the impairment? People still go their $$! b. Blaisdell: State passed a law that said if you failed to pay your mortgage, you could keep you property and have a longer time to cure the defect than the K required, but you must pay interest or fair rental value. Ct applied PPB and said that this was a proper balancing of competing interests. c. El Paso v. Simmons: Law said you no longer have unlimited time to pay, but 5 years to pay the default on a home. Ct did a public purpose balancing test and said that the valid public interest outweighed the current K interests. Allied Structural Steel: ASS entered into Pension plans w/ their employees where money would invest in 15-20 years. State passed a law that provided for vesting in 10 years. Ct said that this violated the KC b/c changing the vest is a substantial change that is inconsistent w/ a pre-existing K right. d. Sinner -2- 8/12/2008 e. f. Energy Reserves Group: State came and regulated natural gas prices, which were different in their K. Ct applied the Public Purpose Balancing Test. Exxon: State changed K to say that energy companies had to pay a tax. Ct said that this was a substantial change to a pre-existing K right, but justified it by the states interest to allocate tax. IV. NO TAKINGS CLAUSE (NTC) A. 5th A: Neither the States nor Congress may take private property for public use without just compensation 1. Remember: because the Doctrine of Incorporation made the 5th A applicable to the States, the analysis must say that both the 5th A and 14th A are implicated. Then, just analyze the 5th A issue. B. ―Property‖ 1. Broad definition, which includes real property, trade secrets, etc. C. ―Public Use‖ 1. If the use rationally relates to a legitimate governmental interest, then it is for public use and gov can take it. 2. If the gov wants to pay for it, then it is for public use. 3. So, public use even if gov takes private property and gives it to another private entity. D. ―Just Compensation‖ 1. FMV at the time prior to the gov taking your property. 2. Once the ct finds a ―taking,‖, then the State or Congress elect whether to buy the property or not. a. If they choose to buy, then they have to compensate the FMV. b. If they choose to not to buy, then they have to compensate for the time in which they had taken the property, i.e., the ―period of denial of use.‖  Ex: LA imposed a 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 thru w/ the original purpose, but had to pay for the 8 years of restrictions on the use of the property. 3. If something is NOT considered to be a compensable taking, then it is simply a DP issue that is governed by the RB test. E. Direct ―Taking‖ 1. Gov Takes Your Property For Use By Gov = Compensation a. Historically, a taking was when the gov would pay you the FMV of your property and then use it for whatever they needed – this constitutes a taking that requires just compensation. b. There will NOT be a dispute re compensation in these types of situations. 2. Gove Takes Your Property For Use By Others = Usually Compensation a. There usually will NOT be a dispute re compensation in these types of situations. b. Ex: Aetna developed a private marina for members only and the gov came in and said that the public was entitled to access in this privately funded marina. The ct said that the gov was taking from marina developers so they were entitled to compensation. F. Indirect ―Taking‖ 1. Regulatory Taking: Property may be regulated to a certain extent, but if that regulation goes too far (e.g. it is so severe and damaging), then it will be recognized as a taking. 2. Modern Approach a. 2 Per Se Categories with regard to regulatory action or zoning laws, where the ct will most likely find a taking.  (1) PHYSICAL INVASION: the gov physically invades your property or allows a physical invasion of your property (Loretto)  Physical Invasion can be of any type—noise, smell, dust, use by others, etc.  Examples  Sick Chickens: Noise from planes that flew over chicken farm made the chickens produce less quality eggs. The noise affected Sinner -3- 8/12/2008 b. the value of the eggs laid by chickens. This was a taking b/c the noise invaded P‘s personal property.  Cable Lines: City of NY required condo owners to allow cable companies to run wire up their complexes to a box on the roof. The ct held that this was a compensable taking b/c it was a physical taking. The city had to pay for the value of that piece of roof of the apt complex that it is taking.  (2) TAKING OF ALL ECONOMICALLY VIABLE USE: zoning/regulation denies all economically viable/beneficial/productive use of the property (Lucas).  Nuisance Exception: Gov can take all economically viable use of your land (by regulation) w/o the requirement of compensation if necessary to abate a nuisance (i.e. an unlawful use of property that interferes with the lawful use of another‘s property or some other governmental interest (e.g. cause serious harm to neighboring party). You can run your property the way you want, but you can‘t make it a nuisance which effects other peoples‘ property. The scope of this is far from clear.  Example  Lucas: Coastal council prevented L from building homes on his beachfront property. Ct found this to be a taking even though he could still sun bath and kick people off.  1 Overall Approach that applies when the 2 per se categories do not.  (3) PENN CENTRAL BALANCING TEST: 3 principal factors to balance to determine whether there is a regulation which requires a RB review, or a taking which requires Just Compensation. Use if there is a partial taking.  3 Factors  Extent of Taking  Look at what % was taken?  Look at the economic effect on the owner of the property. It may raise the level to that of a taking even if it is not a taking of all viable economic use.  Nature of the Taking  Look at the general fairness of the taking.  Zoning restrictions are less likely to be considered compensable takings than other things.  Taking away zoning that made property more valuable is NOT a taking.  Regulation of societal ills (alcohol, minimum wage) is NOT a taking.  Biz regulations are less likely a taking.  Takings can be retroactive and still not be compensable. BUT, it ay make the court pause a bit longer.  Harm to Rx Investment Based Expectations:  Look at the reason why the investment was made.  Do they still have some use of the land?  Look at the effect on the business purpose behind the property.  Ex – Penn Central: Apply 3 Factors—Regulation Not Taking Found so apply RB.  Must rationally relate to some legitimate governmental interest.  Extent of Taking: they did not take the full value of their air rights b/c they gave them right to build elsewhere. Not a complete taking.  Nature of Taking: zoning, so least likely to be a taking. Also, common for gov to protect historical buildings. Sinner -4- 8/12/2008   Rx Based Expectations: couldn‘t build the hotel, but still had use of the building as a RR station, which was the central use. Not a complete taking.  SUM: No taking. Since no taking, then apply RB. If there was a taking, then you would require compensation. Ex: Fed law forbids the sale of eagle feathers. П argued that this was a compensable taking b/c he had a collection of these feathers, and all his economic use was taken away by this law. Ct said this was not a taking b/c the feathers still have value even though you can‘t sell them—you can admire them, decorate w/ them. All other ownership interests remain, so this is not a taking. Ex – Yee v. City of Escondido: A city rule created rent control, and a State rule said that you could not kick tenants out. The LL claimed that his was a taking and that he should get compensated for the diminished value of the building (e.g. not being able to get higher rent). Ct said that this was nowhere near a physical invasion. LL should have argued Penn Central Balancing (even though he probably would not have won).  G. Exactions 1. Definition: conditions imposed for a change in the use of property. a. Ex: If you want to rebuild part of the Law School, then the gov or planning agencies will impose exactions which state that the bathrooms must have handicap access, etc. 2. 2 Part Test: if the exaction does NOT pass the test, then it rises to the level of a taking and will require compensation. a. (1) ESSENTIAL NEXUS: there must be an essential nexus b/w the exaction and the reason/purpose for the taking; AND  Does the exaction bear an essential nexus to the purpose/reason that they are taking it for? Easily satisfied.  This means that if the purpose is to create a bike bath, then a taking of the property could be used as a bike path.  Ex – Nolan: N wanted to remodel beachfront home. Upgrades require approval. In return for approval, gov wanted a lateral public easement (running parallel to the beach). They wanted the land to join all the public beaches, but said that they wanted it to provide beach access to the public (which required a perpendicular easement). Ct said that there was no essential nexus b/w the lateral easement and providing beach access. Thus, a compensable taking. Had the gov stated that it wanted it for the purpose of connecting all the beaches, then it would have passed the essential nexus test, and would NOT have been a compensable taking. b. (2) ROUGH PROPORTIONALITY: there must be a rough proportionality b/w the exaction and the harm caused by the change in use.  This means that if the purpose for the exaction is reduce traffic (harm), then the requirement to build a bike path must rationally relate (i.e. bear rough proportionality) to traffic reduction.  Basically, does this exaction offset the harm?  Must take all facts into account.  Ex – Dolan: Hardware store wants to expand. The city imposes two exactions: (1) give up piece of property to the city b/c it is a flood plain area, and (2) use piece of land for pedestrian bike way. Ct held that the taking of the property for flood control and for a bike path both pass the essential nexus test. However, the ct held that both failed the Rough Proportionality test because: (1) taking of the land for water run off and giving it to the city was unnecessary to prevent add‘l development b/c the city could build on it. All they had to do was restrict her from building on the land. (2) Bike path will not really relieve the problem of traffic b/c people will probably be driving cars, not riding bikes. V. FUNDAMENTAL RIGHTS & COMPELLING STATE INTEREST (CSI TEST) A. Fundamental Rights Sinner -5- 8/12/2008 B. C. 1. Right to Privacy 2. Right to Vote 3. Right to Travel Interstate Compelling State Interest Test: the laws that limit fundamental rights (as opposed to substantive interests) must be narrowly tailored to advance State interests. ARE THERE OTHER PHRASINGS??? 1. 2 Parts a. (1) END: There must be a compelling state end; AND b. (2) RELATIONSHIP: the law limiting the fundamental rights must be narrowly tailored to accomplish those ends.  Is the law necessary to advance the compelling state interests or it is narrowly tailored to advance that state interest?  ―Narrowly Tailored‖: The court will consider whether there are rx adequate/less drastic alternative ways of addressing the problem without hurting the fundamental right involved. Requires a close fit b/w the law and the purpose.  There must not be a rx adequate alternative for achieving the government objective. c. Often it will be the case that there is a compelling state interests, but the relationship part of the test fails b/c there are other ways of doing it. 2. Level of Review: Strict Scrutiny Right to Privacy 1. Enumerated Provisions: Considered fundamental rights that is found in the penumbra of enumerated constitutional rights. 2. Non-Enumerated Provisions: Specific guarantees in the bill of rights have penumbras formed by emanations from those guarantees that help give them life and substance. Several things are protected by the Constitution despite the absence of specific language recognizing them: a. Right to Marry – Right to Privacy in Marital Relationship – Intimacy of Marriage  Approach: Ask…  Is it a rx restriction that do not significantly limit the right to marry OR an unrx restriction that significantly limits the right to marry?  Reasonable + Insignificant = RB Test  Unreasonable + Significant = CSI Test.  Ex of Laws NOT Considered Worthy of CSI Test  Laws forbidding marriage to 1st cousins  Marriage license laws  Law requiring person of each sex (perhaps this violates the fundamental right to privacy).  Old Exam Question: Law allows same sex marriage, but does not allow persons to marry their first cousins. Level of review is RB. BUT, the purpose of the law was to prevent the passing of inherited common traits leading to mental retardation. W/ regard to gay marriages, this is not a legitimate concern.  Ex – Zablocki: Statute provided that a resident is not allowed to get married if he has a minor in custody, which he is under an obligation to support. In this case ▲ had an illegitimate child and never paid child support. The child was on welfare, and now ▲ wants to get married. The law said no. Ct applied CSI test and found that it was unconstitutional b/c it failed the relationship prong of the test b/c it tried to enforce a child support interest by limiting the right to marry. This also would have failed the relationship prong of the RB test. b. Right to Make Contraception Decisions  Right to privacy protects the right of all adults to use contraception and make procreation choices.  Married/Single Persons have the fundamental right to use contraception.  Griswold v. Conn: Married persons can make decisions w/ regards to contraceptive.  Roe v. Wade: Extends the right to make procreations decisions. Sinner -6- 8/12/2008 c. d. e. f.  Minors = RB Right to Privacy/Confidentiality  Whalen v. Roe: NY law required that all medical prescriptions be sent to a centralized database, which the gov has access to. П claimed that this invaded their fundamental right to keep quiet what their medical condition was. Ct said that the right to privacy might include the right to keep info confidential. Right to Make Child Rearing Decisions  CSI Test – Morre: Laws limiting personal choice in matters of marriage and family life, including some aspects of child rearing, get CSI test.  City law allowed persons to live together only if related, i.e. w/in the same direct family line. Here, grandmother lived w/ her son and grandson, which made the kids cousins and was contrary to state law. Ct applied CSI test b /c the fundamental right to privacy includes certain choices w/ regards to family matters. Here, the law served no useful or proper gov purpose. It was arbitrary and capricious. This law is different from Belle Terre b/c it does not restrict ―unrelated‖ persons, but cuts into the actual definition of family.  SO, any regulation of familial rights must be justified by a CSI and must be narrowly tailored so as to protect only the legitimate state interest at stake.  RB Test – Belle Terre: Local ordinance limiting dwellings to a single family, and defined family to mean not more than two unrelated persons. Ct said that this was a zoning decision, which requires a RB level of review. Ct said that the law did rationally relate to promote family needs and family values.  RB Test – Michael H: State statute establishing a conclusive presumption that a child born to a married woman cohabitating with her husband is a child of the marriage does not violate the substantive due process rights of the natural father or the child. Right to Refuse Medical Care  Ex: 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. Parents wanted to take daughter off life support, but there was no evidence, so she stayed on. Parents challenged the law, and the ct applied the CSI test. Fundamental Right to Choose Whether or Not to Give Birth – Abortion  Undue Burden Test: an undue burden exists if the purpose of the law is to place a substantial obstacle in the path of a woman seeking an abortion previability. The law must be designed to inform the woman’s choice, not hinder it.  Most Abortion Cases = Undue Burden Test  Funding Abortion Cases = RB Test  Point of Viability  Pre-Viability: Regulation only allowed if it does NOT impose an undue burden. The woman‘s right to chose is dominant.  Post-Viability: Regulation can restrict abortion, but there must be an exception when it is necessary to preserve the life and health of the mother.  Common Regulations  Note: adding to the trouble and expense of an abortion does not necessarily constitute an undue burden.  Spousal Consent = Undue Burden on a female‘s freedom of choice  Spousal Notice = Undue Burden  Parental Notice = Only Constitutional IF the law as an adequate judicial bypass  Bypass Must Include 2 Procedures (if the law does not have both options, then it is unconstitutional). Sinner -7- 8/12/2008      3. 1. Maturity Exception: Ct must have the authority to determine that the minor is sufficiently mature to make her own decisions; AND  2. Best Interest Exception: Ct must have the authority to determine that minor is not mature enough to make her own decision, but that the having an abortion or not telling her parents is in the minor‘s best interest. Record Keeping Requirements = Generally Constitutional  Constitutional if rxly relate to the maternal health of the female  What is rxly related to the maternal health of the female? Anything that might help medical research, or that relates to health of females in the future.  2 Exceptions Where Record Keeping Unconstitutional: IF EITHER  Breaching confidentiality of the female; OR  The name of particular persons must be kept confidential.  Reporting as to why the female did not seek the consent of the husband  Gov cannot require you to explain why you did not give notice or consent to the father. Regulation of Medical Procedures = Generally Unconstitutional  2 Exceptions  1. Late 2nd Term Abortions: add‘l procedures are ok to make sure that it is not an illegal 3rd term abortion.  2. 2nd Dr. Requirement: use of 2nd doctor is ok in late 2nd term abortions to make sure not aborting a viable fetus. Funding Decisions = RB Test (NOT Undue Burden)  Funding does NOT place an undue burden on any particular individual. Informed Consent = Constitutional (NOT Undue Burden)  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. 24 Hour Waiting Period – Constitutional (NOT Undue Burden)  It does not matter that this adds to expense, anxiety, etc.  Excludes a. No Fundamental Right to Engage in Homosexual Sodomy = RB Test  b. No Fundamental Right to Physician Assisted Suicide = RB Test  The right to die has not been recognized as a fundamental right.  If there is a law that makes it a crime for doctors to assist in the suicide of others, apply RB Test. VI. EQUAL PROTECTION CLAUSE (EPC) A. EP v. DP 1. Due Process (DP) a. Concern for overall substantive interest b. Can the gov restrict? c. Level of review depends on type of legislation  RB (permissive scrutiny)  Fundamental Rights = CSI (strict scrutiny) 2. Equal Protection (EP) a. Concern for classification Sinner -8- 8/12/2008 B. C. D. Similar situations should get similar treatment Level of review depends on type of legislation  Ordinary social and economic legislation = RB  Suspect classifications = Higher Level of Review  Gender = Mid Level  Race = CSI  Fundamental Rights = CSI (see above) APPROACH 1. Identify the Classification a. Level of Review Depends on the Type of Legislation  Ordinary Social & Economic Legislation = RB Test  Gender-Based Classification = Mid Level of Review  Race-Based Classification = CSI Test 2. State the Test 3. Does it relate to legitimate government ends? 4. Does the classification advance legitimate government ends? Analyze the facts. a. Heller v. Doe is a great example of this. Ordinary Social & Economic Legislation (NOT SUSPECT) = RB Test 1. Ex of Classifications That Are NOT Suspect (some of these will get a ―More Focused‖ RB Test) a. Mental Retardation b. Age (disadvantaging the elderly) c. Wealth (disadvantaging the poor) d. Homosexuals 2. Difference b/w RB Test Under Due Process v. 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. c. Ex of Legislation That Classifies Getting RB Test  Truck Advertising Case  Different Standards for Mentally Ill v. Mentally Retarded  Alaska $$ Case Gender-Based Classification (QUASI-SUSPECT) = Mid Level of Review = Intermediate Test 1. 2 Parallel Mid Level Tests (essentially the same) a. Mid Level Test(s): Classifications based upon gender must substantially relate to important government interests, OR there must be exceedingly persuasive justification for gender based classification. (State both tests, but apply the Intermediate Test—substantially relate—b/c that gives a fact pattern to follow.) Classifications based upon gender must serve important governmental objectives and must substantially relate to achievement of those objectives.  2 Parts  (1) END: Any important gov interests to justify gender classifications— must be important or significant or substantial, more than legitimate or permissible, but less than compelling.  Must be supported by exceedingly persuasive justification.  (2) RELATIONSHIP: Justification for the classification must substantially relate to important gov interests. In judging whether gender based classification is necessary or not, consider rx adequate alternatives (as opposed to conceivable alternatives under RB Test). b. Application of the Mid Level Test Varies  Protective Gender Law= Closer to RB: When laws are viewed as being protective of women, the court applies it in a more permissive way.  Ex: payment of $$ for time off during pregnancy. b. c. Sinner -9- 8/12/2008 2. 3. 4. Harmful Gender Law = Closer to CSI: When laws hurt women, the court applies it very strictly, more like the CSI Test.  Ex: Whether or not credit is given in terms of seniority while a women is absent for maternity leave. c. Example – Craig v. Boren: Ok law said that women over 18 could consume beer, whereas men couldn‘t until 21. END: The important gov objective was to prevent drunk driving. RELATIONSHIP: But, the court said that this objective did not substantially relate—it was close, but not substantial enough. There were rx alternatives, such as increase price, police, etc. d. Example – US v. Virginia: ―Virginia‘s public institutions of higher learning include an incomparable military college, Virginia Military Institute. The United States maintains that the Constitution‘s equal protection guarantee precludes Virginia from reserving exclusively to men the unique educational opportunities VMI affords. We agree.‖ Exceedingly persuasive justification came from this case. e. Example – Nguyen v. INS: Law that treated children of citizens and non-citizens differently depending on whether the citizen was a male or female passed the Intermediate Test or the EPJ b/c there was more certainty knowing that the child was born to the mother, and this certainty was sufficient to justify the different treatment. Classifications Based Upon Pregnancy = RB Test (Does NOT Constitute Gender Based Classification) a. Rather, pregnancy is considered a medical condition, so it is a classification based upon a medical condition. b. Ex: It is rx to exclude funding to pregnant women b/c of the high cost of including pregnancy as a disability. It is rational for the ct to exclude the voluntary condition of pregnancy and the classification rationally relates to the fiscal concerns. Gender Based Laws That Hurt Men = OK = Pass Mid Level of Review a. 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, and does pass the Mid Level of Review Test (both End and Relationship). The different treatment of males and females bears a fair and substantial relationship to the important governmental interest of preventing illegitimate teenage pregnancies, which is one of the purposes of the law. See Michael M b. Draft Laws: A federal statute authorizing male only draft registration does not violate the 5th amendment equal protection guarantee b/c 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. See Rostker v. Goldberg Preemptory Challenges a. Like race, gender cannot be used as a basis for preemptory challenges. See JEB v. Alabama  E. Race-Based/Ethnic Origin-Based Classification (INHERENTLY SUSPECT) = CSI 1. CSI Test: When a law employs suspect classifications or significantly burdens the exercise of a fundamental right, the ct. will apply CSI Test. a. In order to justify a race-based classification, there must be a compelling state end independent of discrimination (END), AND the classification based on race must be narrowly tailored to accomplish that end (RELATIONSHIP).  Ct will look to see if there are less drastic ways of advancing the legitimate gov interest. If there are less drastic alternatives, then the classification will NOT satisfy the relationship part of the test. 2. Historical cases a. Strauder v. WV: WV passed law that said had to be white, male, citizen, 21+ to serve on jury; gender classification passed, but race classification‘s review was raised b/c inherently unreliable/ inaccurate, there are better ways, 14th‘s commitment to prevent use of race-based classifications. Sinner - 10 - 8/12/2008 3. Plessy v. Ferguson: LA statute that allowed for separate seating on coaches for blacks and whites was upheld as constitutional;  Court used RB and found the separation reasonable.  ―Separate but equal‖ doctrine => equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate.  NOTE: This remained the law until Brown v. Board of Ed. c. Loving v. VA: VA statute made it illegal to marry someone of another race...L‘s married in DC, then moved back to VA...found guilty, sent out of state... they wanted to move back, so brought suit  Issue: whether preventing marriages between persons solely on the basis of racial classifications violates the EP and DP clauses of 14th amend?  Yes => ―the EP clause demands the racial classifications be subjected to the ‗most rigid scrutiny‘ and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination, which it was the object of the 14th amend. to eliminate.‖  CSI Test: Must be narrowly tailored to accomplish CSI.  When determining whether narrowly tailored look for rx adequate alternatives, or least drastic alternative.  It no longer matters that the law treated all races the same. d. Palmore v. Sidoti: FL court took custody away from mom b/c she married a black man; SC reversed b/c it didn‘t survive the strictest scrutiny (must be justified by a compelling gov‘t interest and must be necessary to the accomplishment of its legitimate purpose). Ct said that climate is a factor in considering what is in the best interest of the child, but it is not a compelling government interest that trumps the Fourteenth Amendment. e. HYPO that fails CSI: Forbidden to move to neighborhood where you were a racial minority or would create a clear and present danger of racial violence. This is a race based classification. Does not pass CSI test – because a rx adequate alternative is greater police protection for minorities. f. HYPO that Passes CSI: Prison situation where there is racial violence. Prison officials have tried all possible ways to prevent violence but cannot. After people start to die, the warden temporarily divides the prison race. This satisfies the CSI test because there is no rx adequate alternative.  Difference b/w this hypo and b/w Johnson v. CA where CA prison Wardens would not racially segregate person coming into prisons even though they were concerned about various gangs. Ct said that there are less drastic alternatives than separating by race. Here, there were not rx adequate alternatives. Court found race based classifications in the following cases a. Korematsu v. US: Evacuation upheld, even though US citizen and no question of loyalty: ―All restrictions which curtain the civil rights of a single racial group are immediately suspect...not ... all ...are unconstitutional... [but are] subject... to the most rigid scrutiny. Ct applied CSI test RULE: Pressing public necessity may sometimes justify the existence of such restrictions. b. Yick Wo v. Hopkins: (statute fair on face but administered in a way that results in racial discrimination). San Fran had permit scheme for laudromats that appeared to be racially neutral but really a race based operation that discriminated against Chinese. Court found to be per se invalid b/c based on racial antagonism.. c. Guinn v. US: (statute does not on its face make a racial classification in fact was designed to discriminate against a racial group). OK law required literacy test before voting unless direct descendent voted previously. The law was facially neutral but the Court found that it was a race based classification because it didn‘t allow blacks to vote. Court used per se approach. b. Sinner - 11 - 8/12/2008 d. Jefferson v. Hackney Law caused elderly and blind to receive more welfare than those with children (mainly Hispanic). RB Test. Found that just because there is a disproportionate distribution didn’t mean there was a race-based classification. 4. Racial Segregation in Schools & Other Public Facilities (beaches, parks) a. De Facto Segregation: Segregation resulting from private choices (not intentionally created by the gov—societal, economic, historical decisions), which is NOT a constitutional violation and does NOT violate EP. There is no right to remedy de facto segregation.  This is usually due to societal and socioeconomic conditions. It is more common than de jure. b. De Jure Segregation = PER SE INVALID: Intentional race based segregation by the gov, which violates the constitution and EP. There is a right to remedy de jure segregation.  Federal courts only have the authority to remedy Constitutional violations, such as State imposed or De Jure Segregation. Once de jure has been remedied, then federal courts lose their power. Cities, States, and Congress can pass legislation.  Ex  Keys v. Denver: State intentionally created segregation by drawing attendance zones, assigning teachers, funding schools, busing kids, etc.  Pasadena v. Spangler: State intentionally located high schools so that schools would remain segregated. c. 2 Part Analysis  1. Is there Intentional (De Jure) Segregation?  Must show that  (i) there was at some point an intentional act by the school board or some other governmental body that created segregation; AND  (ii) that there is currently segregation/continuing harm.  2. If so, what is the Appropriate Remedy?  Must be  (i) Reasonable,  (ii) Feasible, AND  (iii) Workable (This applies to all remedies, not just to desegregation).  A remedy must be limited to the constitutional violation, i.e. correcting the wrongs of de jure segregation.  A remedy can stop when: (1) Good Faith Compliance/Effort by the school board/state to eliminate the last vestiges of de jure segregation, AND (2) Substantial Success  Examples  Racial Quotas/Balances: Can be used as a starting point, but must be flexible and must frame the numbers more as a goal.  Single Race Schools: Might be Constitutional. 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  Remedial Altering of Attendance Zones: Site selections, teacher selections, and zoning can be used to remedy the situation and maintain desegregation.  Problem of Mandatory Busing: Busing of students to achieve racial integration or desegregation is ok.  Non-Remedy Example  Operating neutrally for a number of years is NOT a remedy. School have the affirmative duty to remedy all vestiges of de jure segregation. See e.g., U.S. v. Fordice. Sinner - 12 - 8/12/2008 F. Remedy Beyond Constitutional Power Example – Missouri v. Jenkins: A federal court may not order salary increases and funding of remedial programs designed to increase ―desegregation and attractiveness‖ as a 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. Ct first should order the $$ spent and let the state determine how to fund it. d. Preemptory Challenges  Like gender, race cannot be used as a basis for preemptory challenges. See Batson Neutral Classifications That Have a Disproportionate Impact and Per Se Invalidity 1.  VII. EQUAL PROTECTION CLAUSE & FUNDAMENTAL RIGHTS FUNDAMENTAL RIGHT TO VOTE I. Rule: EP issues relating to fundamental right to voteCSI a. Example – classification based on size of district; every legislative district for the Fed and State Houses must be equal in size in terms of population. b. Four Areas i. Access to ballot/Standard for being on the ballot ii. Right to Cast Ballot/Voter Qualification iii. Reapportionment iv. Use of Race in Voting 1. Standard for being on the ballot / Access to ballot c. Rx Relationship: Law must rx related to permissible/leg state ends i. Same Mid-Level test as legitimacy: Closer to balancing test than strict scrutiny, but still higher than RB 1. But getting on ballot is part of fundamental right to vote 2. So, the laws must be closely scrutinized a. Permissible Limitations on Access to the Ballot: i. May limit names to those who are legitimate candidates. ii. 3rd parties have to have petitions signed by certain amount of voters. 1. To keep name on ballot, one candidate for any office must get a certain number of votes in the previous year (usually 1%). b. Court requires fees be waived for indigent candidates. (B/c getting on ballot is part of fundamental right to vote). 2. Right to Cast Ballot  CSI a. Poll Tax i. The 24th Amendment prohibits poll taxes in elections for federal officers. Additionally, the SC in Harper v. Board of Elections held that poll taxes are unconstitutional as a denial of equal protection for all other elections. The Court concluded that limiting voting to those who paid a poll tax was impermissible discrimination. ii. Whenever a state makes the affluence of the voter or payment of any fee an electoral standard, the standard will fail the CSI test. Voter qualifications have no relation to wealth or paying tax.‖ b. Durational Residency i. Dunn v. Blumstein – 1 year durational residence req‘t struck down under CSI. Failed EP under right to vote and right to travel. While there is a valid interest, the 1-year interest was too long to be related. ii. Marston v. Lewis (1973), the SC allowed a 50-day residency requirement for voting to provide election officials sufficient time to check election rolls, prevent fraud, and administer the electionpasses test (Durational residence long enough to make sure there is an accurate voter list is OK) iii. Modernly, we move towards same-day registration. Sinner - 13 - 8/12/2008 3. 4. c. Race can‘t be used as a basis for denying the right to vote d. State can disqualify felons from voting Reapportionment a. Art I, § 2, cl 3: every 10 yrs there must be a census and reallocation of members of the House of Reps among the states according to population shifts. b. EP requires 1 person 1 vote Baker v. Carr (concerned w/population of district) i. Federal re-apportionment Standards: ―as nearly equal as is practicable‖ to one person = one vote to pass EP 1. Struck down variations in district size that is as little as 1% ii. State re-apportionment Standards: ―substantial equality‖ to one person = one vote to pass EP 1. Upheld variations in district sizes as much as 16% c. I.e. of when states did not reapportion: i. In Tennessee, at the turn of century, people lived in rural areas. As it become industrialized, people moved. So they did not reapportion based upon individual districts b/c they didn‘t want to lose their jobs (in regards to Fed and State Houses, rural areas would not vote for any changes that would shift political power to the urban centers) d. I.e. California: State assembly of the Senate paralleled how to allocate power b/w big and small states (protect small states w/ Senate and Big w/ the House) i. Assembly controlled by Southern California; Senate controlled by north 1. With one vote the Senate now gets controlled by the south e. Gerrymandering = the concern for the shape of the districts or the way they are drawn in order to emphasize political strength of the political party in power i. The mere fact that apportionment makes it harder for a group to elect who they want doesn’t violate EP. But it is possible that gerrymandering could violate EP (see Davis below) 1. Davis v. Vandaneer – republican state reapportioned an area by moving a large minority population to mix them w/ the suburban population, thereby indirectly moving democrats into suburban voting districts to dilute democratic strength and thus decrease the number of democrats elected (every state does the same thing, the party in power draws district lines to maximize its political power) P argued that this gerrymandering violated EP and level of review should be CSI. a. Ct upheld gerrym b/c Const doesn’t forbid the use of the normal political process-if this division is typical, it doesn‘t violate EP; b. However if you can show that the gerrym Constitutionally degrades a group of voters a fair chance to affect the political process, EP is violated  the only way to have a violation of EP is if the gerrym is outrageously egregious. 2. Supermajority: it takes more than 51% yes votes to pass legislation The Use of Race in Voting / Affirmative Action Voting a. Historically race was used to draw district lines to take away their right to vote. b. More recently it has been used to advantage minority racial candidates. c. Voting Rights Act of 1964: if state has been found to under represent racial minorities in voting, then any changes in voting must be approved by Attorney General of US i. Essentially in all states of historical south where blacks were undervoted, any significant change in voting, including any changes in the district as a result of reapportionment, must be approved d. Between 1993 and 1996, the SC decided 4 cases on the constitutionality of using race in districting to help racial minorities: Shaw v. Reno, Miller v. Johnson, Shaw v. Hun, and Bush v. Vera. In these cases the Court addressed 3 major issues: i. 1st, in each case the SC ruled that the use of race in drawing election districts  CSI test. ii. 2nd, the Court indicated two ways in which it can be demonstrated that race was used in drawing election districts: 1. If the district has a ―bizarre‖ (not contiguous) shape that, in itself, makes clear that race was the basis for drawing the lines. Sinner - 14 - 8/12/2008 5. Alternatively, if the use of race in districting cannot be inferred from the shape of the district, strict scrutiny is justified if it is proven that race was a ―predominant‖ factor in drawing the lines. iii. 3rd, the Court considered what justifications are sufficient to meet strict scrutiny. 1. For example, the Ct held that section 5 of the Voting Rights Act, which requires that the Justice Department approve changes in election systems in states where there has been a history of race discrimination with regard to voting, does not justify the use of race in districting. 2. In later cases, the Court has said that some use of race in districting can be allowed if race is used as a substitute for political background or affiliation. I.e., a district might be redrawn to include a majority of democrats since an overwhelmingly number of blacks are democrats e. Miller v. Johnson – GA had 10 districts, but w/the 1990 census they got an extra seat, so now 11. When there were 10, one was majority black; when 11, there were 2 majority black districts. Attorney General wanted 3 according to ACLU‘s max black plan. It was easy to add 1 more, but to get the 3, one had to take the black population areas throughout the midsection and make them contiguous. i. This is affirmative action use of race b/c majority of voters is more likely to yield blacks in Congress which would lead to racial diversity in Congress. 1. Held: unConst b/c race solely can‘t be used to determine the shape of district violates EP. Use of race (hostile or benign) violates EP. 2. Some use of race is OK: if it‘s used as a synonym for democrat f. Shaw v. Reno – NC adopted districting policy to make ―pocket districts.‖ i. Ct struck it down as being race-based; must draw contiguous districts. Bush v. Gore - (only case in history in support of the Fund Right to vote) a. Ct concluded that Florida‘s method of determining voter intent violated EP. i. In the recount of FL you had to appeal the voting of each county and the ct said each county had to determine voter intent (no state determination) ii. 3 election commissioners per county and each county had different standards; the end result  some counties were 3 times more likely to capture the undervote. This was found to violate the FR to vote. b. Undervote –votes that computer could not read, but by hand count a person could get the voter‘s intent. Rep lawyers argued EP violation not to count these c. Overvote- when two different people are marked as president d. The determination of under-vote is crucial, but to give them 3 times more weight than other votes violates EP e. Court also determine that failure to equally weigh the overvote violates the EP f. Multiple votes for same person (punched in for X and written in for X also), that cancels out that ballot i. However, if same person is voted, voter intent would be clear, so failure to count that was also EP violation 2. FUNDAMENTAL RIGHT TO TRAVEL 1. Overview a. The right to travel interstate is a fundamental right (strict scrutiny/compelling state interest). The difficulty is determining the scope of the right. The SC says that durational residency requirements which penalize the fundamental right to travel by impacting necessities of life must survive strict scrutiny. Saenz v. Roe reaches an unusual conclusion as to the almost forgotten privileges and immunities clause to accomplish a similar result. In addition to these cases, a group of cases will be covered involving other aspects of residency which some justices, but not a majority, believe fall w/in the fundamental right to travel. These justices together with a few justices who believe the laws are not rational control the judgment, but there is no majority rationale b. FR b/c relationship to other provision in Constitution, past precedents of supreme ct, and b/c the US values the right to travel interstate. Sinner - 15 - 8/12/2008 2. 3. 4. 5. 6. Constitution gives Congress the power to regulate commerce and from that power is the implied limitation on states to regulate commerce (individual states are limited to regulating interstate commerce and that limits protects interstate commerce including the right to travel interstaterelated to Commerce Clause) d. Any classification that serves to penalize the exercise of the right to travel, unless shown to be necessary to promote a compelling state interest, is unconstitutional The Fundamental Right to Travel gets the CSI test if it involves… i. Durational residency requirement AND ii. Impact on 1. Necessity of life or a. i.e. welfare, medical care (non emergency, i.e asthma attack) 2. Some other fundamental right a. i.e. voting b. ―If you have the above elements, a penalty exists on the fundamental right to travel; thus CSI is applied.‖ c. Apply Rational basis test if: (you have one or the other ONLY) i. Limiting welfare to bona fide residency (no durational) ii. Or you have only durational (no necessity of life) d. Ct struck down durational residency req‘s (of 1 year) when it affected: i. Welfare (i.e Shapiro) ii. Voting (i.e. Dunn) iii. Medical Care (i.e. Maricopa) e. Court did not strike down durational req‘t when it affected: i. Divorce (i.e. Sosna) ii. University education iii. Residency alone Shapiro v. Thompson a. Law: to get welfare in state, one had to be a resident for at least one year b. Normally this kind of law that treats out of state differently than in-state people would be a violation of Const Commerce Clause, but Congress has the ability to approve those kinds of burdens on interstate commerce. i. Rule – if approved by Congress, can‘t be struck down using Commerce Clause, but EP grounds may still be attempted. c. The Durational residency req‘t for welfare makes it hard for indigent to move from state to state. Affect FR to travel interstate and must be justified by CSI. i. State Interests: Concerns: 1. Fraud: make sure they are legit citizens before providing welfare 2. BUT Underlying purpose discouraging the influx of poor families in need  unconst, and administrative purposes are not compelling ii. Narrowly tailored: 1. A one year durational is over broad and fails this part of test b/c there is alternative a. Alternatives are genuine residency requirement and prosecuting for fraud iii. Held: Fund Right to travel CSI. Dura‘ residency + welfare is a fund right Dunn v. Blumstein a. One year residency req‘t to vote was in violation of FR to Vote and FR to Travel Sosna v. Iowa a. Durational residency req‘t before one could get a divorce b. Not involve the FR to Travel b/c different states have interests in the marriage, so the state from where you moved and where you now are both have interests. However, your original state has the dominant interest until you have established enough of a new connection w/ state you are now living in (so one year req‘t is OK) The next 3 cases are a hybrid of the CSI test and the ‗more focused‘ RB test. In each case 3 justices apply the CSI test and 3 apply the more focused RB test to strike the laws down, 6 to 3, but there is no agreement c. Sinner - 16 - 8/12/2008 7. 8. as to the proper level of review. (These are not binding precedent b/c they are pluralities, not majority opinions) a. Zobel v. Williams (1982): SC declared unconstitutional an Alaska law that distributed oil revenues to those in the state according to a formula that was calculated based on the duration of a person’s residence in the state. 3 members of the SC felt that the fundamental right to travel was involved while 3 others, not willing to go that far (probably correctly so) just felt the law was irrational, while 3 other applied RB and found it rational. b. Attorney General of NY v. Soto-Lopez (1986): NY law gave benefits to veterans, but only if they were residents of NY at the time they joined the military. 3 justices said fundamental right to travel was violated, 3 others said it was irrational to exclude all veterans except those who were residents of NY at the time of joining and 3 found it to pass the RB test. c. Williams v. Vermont (1985): Use Tax is a substitute for sales tax; a way to disallow people from avoiding sales taxes. Vermont gave you credit for the sales tax paid elsewhere only if you resided in Vt at the time of purchase and you paid tax on the purchase in another state. Thus, if you lived in NY when you bought your car and later moved to Vt, Vt wouldn‘t give you a credit for the tax already paid and you had to pay the additional use tax, in effect a double tax on the same property. Same events as last 2 cases, but here it is a stretch to say fundamental right to travel is involved but 3 justices made that argument. Unconstitutional. d. Thus, if you have something of a durational residency that doesn’t involve a necessity of life, some on the Court will still apply CSI test and others might apply the more focused rational basis test, instead of just the RB test. Saenz v. Roe (1999) Parallels Shapiro). & The Privileges and Immunities Clause a. CA law: if you move into the state and go on welfare, for the 1 st year you will get the same amount that your former state paid you and not CA‘s higher amount. b. Rather than using the Shapiro process, ct said this durational residency violates the privileges & immunities clause of the 14th Am. i. Art 4: no state may deny P&I of state citizenship when dealing w/ interests important to interstate harmony (protects important interests). 1. Ownership of prop, getting sued, occupation treat people the same 2. Hunting licenses and education  may treat differently ii. 14th Amend (protects lesser interests): ―No state shall make or enforce any law which shall abridge the P&I of citizens; nor shall any state deprive any person of life, liberty, or property, w/out DP; nor deny to any person w/in its jx the equal protection of the laws.‖ 1. This was only the 2nd time the P&I clause was used. The P&I clause protects four lesser rights: a. The right to petition the central government for grievances; b. The right to protection while in the custody of a U.S. Marshall; c. The right to sail the navigable waters; and d. The right to travel interstate. c. The SC could have easily just said that the law imposes a durational residency that impacts a necessity of life, but instead chose to use the P&I clause protecting travel interstate (as opposed to the EP‘s clause‘s right to travel interstate…see the distinction: FR to Travel has nothing to do w/travel, but this lesser interest in travel actually deals w/ traveling) Village of Arlington Heights – (level of review is RB unless discrim intent shown). a. It was also argued that restrictive zoning makes you harder to move state to state…thus necessity of life is w/ regards to housing. b. Ct reject this argument b/c no durational residency so no FR to travelapply RB. Principal approach: Shapiro v. Thompson & Memorial hospital is an EP Fund right approach. Durational residency requirements that impact necessity’s of life or Fundamental Rights hurt the fund right to travel. When the Fundamental Right to Travel is penalized in that instance you need a CSI level of review. Then say, this can also be viewed alternatively as a violation of the P&I of the 14 th amendment to the extent that the P&I protect the right to travel interstate. (Saenz v. Roe) Sinner - 17 - 8/12/2008 Finally, take into consideration (Zoebel, Attny Gen and William) - any time there is an issue of length of residency that doesn’t involve an issue of the necessity of life, some members of the Ct will apply the CSI test, while others might apply the more focused RB test. VIII. PROCEDURAL DUE PROCESS A. Procedural DP: Right to Fair Notice + Fair Hearing = Right to Fair Procedure 1. You have a PDP issue when the gov gives someone else the discretionary authority of taking away your liberty and property interests. B. 5th & 14th: ―There can be no taking [by Gov or State] of life, liberty or property w/o PDP.‖ C. Substantive v. Procedural 1. Substantive: Legislation that limits all (DP) or classifies everyone based on certain categories (EP) a. Substantive DP  Fundamental Rights (Privacy, Vote, Travel) = CSI (HIGH)  Normal Interests = RB (LOW)  Ex: Whether or not a woman can have an abortion is a Substantive DP issue and not a PDP issue b/c all the notice/hearings in the world would not make the law prohibiting it valid. b. Substantive EP (great # of variations)  If legislative type decision classifies people differently it is an EP issue.  Fundamental Right or Suspect Classification = CSI  Gender Classifications = Mid Level (Strict)  Legitimacy/Affirmative Action = Mid Level (Soft)  ? = Strict RB  Irrebuttable Presumptions are EP issues and get same level of review as they would under EP (see below). c. Ministerial Decisions are NOT PDP issues.  This is when responsibilities are turned over to administrators.  Ex: State law that suspends your license after 3 tickets. This is NOT PDP, but ministerial. 2. PDP: Concern for judicial/administrative-like takings. These are individualized, case by case decisions. a. Administrative bodies difficult b/c they perform legislative and judicial processes. b. When admin acts like legislature = Substantive c. When admin acts like judge = Procedural D. 3 Requirements To Have a Right to Notice or a Hearing… 1. Judicial-Like Taking/Decision? a. Case-by-case, individualized, discretionary, particularized decisions.  ―Judge‖: can be Vice Principal, the DMV, the Court—any gov official b. Key: Is there something to have a hearing on?  If NO, then there is not a PDP issue, but most likely a Substantive DP or EP issue.  If the ―procedure‖ is to make a decision w/o consideration and w/o a hearing, then it is NOT an adjudicative judge like decision. It is something else (e.g. substantive DP, EP, etc.)  Procedural Ex: Criminal and civil cases, and criminal-like cases (obvious).  Procedural Ex: DMV decides that your driving record indicates a high level of recklessness and they remove your drivers license; when principal suspends you from school; when electric co cuts off your power b/c sporadic payments; kicked out of public housing; food stamps taken from you; welfare taken away; when debtor goes to reclaim you possessions.  Procedural Ex: Law: If person convicted of crime involving gun then the housing rep has discretion whether or not to kick you out.  Substantive EP Ex: Law: Any person convicted of crime involving gun is removed from public housing. Gets RB test. Sinner - 18 - 8/12/2008 2. Substantive EP Ex: State law that if police officer declares bankruptcy he will be fired due to a concern for corruption. This law automatically fires w/o notice or hearing. There is no case by case determination here. This is a EP issue w/ no fundamental rights or suspect classifications, so gets RB level of review. The law possibly relates so passes RBT.  Is this at all PDP????  BEWARE: of EP issues that mask themselves as PDP issues. If these are not suspect, then they will get RB and pass.  CHECK OLD EXAM FOR EXAMPLE OF THIS!  Can there be both PDP and SDP? YES  More likely irrebuttable mistaken for PDP that was EP. Taking of a Liberty or Property Interest? a. Once it is determined that there is the right kind of taking, the key is knowing how to define a property or liberty interest. If property or liberty interest is created by the laws, then some level of PDP is required. b. Life: Mainly applies to capital punishment cases. c. Liberty  Created by State law, the Constitution, or K  Liberty Interests Include (look for Fundamental Rights)  Free speech  Parental rights  Free from Institutional Confinement  Ex: Mental person confined to keep them from hurting themselves; Juvenile placed in custody; Transfer from prison to mental institution (b/c dramatic change in confinement) etc.  Right to refuse medical treatment  Ex: Prisoner refused to take anti-psychotic drugs b/c then would be sane and able to be tried. Prison officials wanted to be able to give him drugs. RULE: Have a liberty interest to refuse medical treatment. That means that person had level of PDP. Low level b/c only 2 doctors had to agree—variable to the significance of the interest concerned.  Right to privacy  Right to travel  Right to vote  Right to contract  Right to engage in gainful employment  Right to marry and raise children  Right to acquire useful knowledge  Reputation: At any level, even combined w/ something else, is NO LONGER A LI.  At first SC wanted to recognize, but evolved to not being recognized  Paul v. Davies: police sent out list of known shoplifters at Christmas... local newspaper reporter was on the list, even though never convicted (just picked up)... he was fired... alleged sending out his name was a liberty interest without PDP => SC said reputation is not LI.  Prisoners Liberty Rights: Under state law, prisoners are not given a liberty interest unless they are treated in a way that is seriously beyond the level expected for a prisoner.  Hypo – ―good time‖ that prisoner earned was taken away for bad conduct. Prisoner claimed that GT is a liberty interest that can‘t be taken away w/out a hearing to show that he engaged in bad conduct.  Sinner - 19 - 8/12/2008     d.  Property  Defined Strictly by State Law or Federal law or Common law or Independent Source (e.g. employment contracts, valid K entered into w/ the gov.), but NOT Constitution  ―Property‖ includes:  Entitlements (e.g. food stamps, welfare, gov jobs, notice for debt collection, public schooling, etc.) Ct said prisoner is correct…it is a liberty interest created by an independent sourcethe law, not the Constitution, and the taking of it requires P DP.  Is this really seriously beyond the level expected for a prisoner???? Hypo – a person was transferred from prison to mental institute. He asserted that this transfer was the taking of a liberty interest that req‘d a hearing. State law allowed it, but he argued that it was protected by the Constitution.  Ct said it was a liberty interest b/c when you change the very nature of the confinement, it requires a hearing. Hypo (no liberty interest) – prisoner accused of misconduct and transferred from med to max security prison w/out any hearing.  Held: No liberty interest in being in a med prison over a max prison; as such, no level of process is needed when transferred. Unless state or fed law says differently, at the discretion of PO. Connor– Prisons didn‘t write down the rights of the ‗inmates b/c they knew w/out it, prisoners can‘t complain about P DP violations.  Ct said we are encouraging prison officials to do things that don‘t make sense, so we will not easily find liberty interests of prisoners. They are confined in prison, so their liberty interests are already taken away.  RULE: If the penalty imposes atypical and significant hardships from what one should expect from being in prison, then the violations of prison rules and regulations requires a notice and a hearing…P DP.  Even if state law creates procedural due process for prisoners, taking it away will not violate their procedural due process rights unless in taking away the rights the state created an atypical harsh quality of life that is different than just being in prison.  I.e., there needs to be a significant deprivation of a known right.  There is a significant deprivation to a prisoners procedural due process rights when the taking is intentional and not merely negligent. SDP in prisoner cases: they don‘t have the same protection of liberty interests as other people  Test = is it rx related to correctional concerns/prison rules—this is correct—rx basis test  I.e. – if prisoner is denied the right to marry or get mail, the test is still this, even if normally it would get a higher level of review: Gov would win this case. Is this correct?  Sinner - 20 - 8/12/2008  e. Property Interest & Gov (is it just gov or any job?) Jobs?  ―At-Will‖: NO Property Interest  Fired Only ―For Cause‖: YES Property Interest  Board of Regents of State Colleges v. Roth: R was hired for one year at U (no tenure). R was not rehired. U complied with rules for terminating R (i.e. notified by Feb. 1), but did not provide a reason terminating, or have a hearing;  3 Step Analysis:  Judicial Like Decision? YES b/c case by case individualized determination.  Do we say just this or say how we know case by case??? This is ok.  Taking of Liberty or Property Interest?  NO Prop Interest b/c ―at-will‖ employee. State law for first yr teachers said didn‘t have to rehired (based on dean‘s decisions). No state law rights given (if there had been tenure- there would have been prop. interest under state law b/c could only be fired for egregious conduct)  NO Liberty Interest. IF he had been able to prove he had been fired for exercising free speech, he would have been entitled to PDP b/c this fundamental right to free speech is a liberty interests found in Const.  So don‘t have to look to see if any level of PDP was provided  H: Did not infringe on his 14th amend. PDP rights  Cleveland Board of Educ. v. Loudermill: OH statute said that civil service employees could keep position during good behavior/efficient service and could only be dismissed for misfeasance, and if removed must get (1) order of removal giving reasons (2) appeal to state board- subject to state court review  Court held that PDP was implicated b/c there was a constitutionally protected property interest in employment  Board argued that property interest was the whole deal = the job + the condition that the hearing would be held after dismissal  SC rejected that the whole was the property interest and said:  The job = property interest  The procedure = constitutional  Once state creates a property interest in something, the level of process that the right will receive will be determined by the Matthews Balancing Factors.  Thus, employee must have some kind of hearing before discharge. Taking MUST BE Intentional, and NOT Negligent.  Parratt v. Taylor: prison official loses inmate‘s hobby kit. Court said that while negligent act could constitute a deprivation of property (liberty or life), in this case DP was satisfied b/c impossible to have hearing before the deprivation (it was already lost); AND  There was a state tort remedy available so there would be a hearing...this part was overruled in Daniels. Daniels v. Williams: Prisoner fell on a pillow left on a stairway by prison official. P  Sinner - 21 - 8/12/2008 E. couldn‘t sue under tort law b/c official was immune. SC said lack of due care by a state official does not ―deprive‖ an indiv. of life/ liberty/ property so due process isn‘t implicated.  Davidson v. Cannon: Prisoner sent note to authorities that another had threatened him, but officials set aside note. Prisoner was attacked; negligence does not implicate due process BUT reckless disregard might (ct left this open). 3. What Level of Process Required? a. Level varies infinitely depending on the interest at stake. b. Once it is determined that a liberty or a property interest has been taken, the level of PDP required is infinitely variable depending on the interest at stake.  This is usually not the issue, BUT it could be the case that there is an judge like taking of a property or a liberty interest, and the level of PDP is challenged for being not protective enough. Or you will need to assess what the appropriate level should be where the is none given.  Ex: Utility Services are a property interest that CANNOT be cut off without PDP. HOWEVER, the due process given is very low; only have the right to talk to a human that has the discretion to keep utilities on. c. 3 Factor Balancing Test To Determine Whether An Appropriate Level of Process Has Been Given (See Matthews v. Eldridge)  (1) Importance of Private Interest  (e.g., private interests that will be affected by the official action);  High level of Private Interest = High level of DP (capital interests)  (2) Importance of Gov/State Interest  (e.g. admin convenience, quick decisions, how many people being heard, etc.)  (3) Risk of Erroneous Deprivation of not having better DP Proceedings  Would a higher level of process avoided the mistake? 4. Ex of Analysis – Gross v. Lopez: A student was suspended from school for 10 days for violation of school policy. The VP said to him: you spiked the punch, didn‘t you. He said: no I didn‘t. VP said: yes you did, you are suspended. a. Adjudicatory Taking? YES b/c decision was made by principal on a case by case basis at his discretion. b. Property or Liberty Interest Involved?  Property: YES  10 days of free public school education is a property right. Once the gov decides to give you something, that becomes a property interest. So, if that gets taken away, then it is a taking of a property interest.  Another example would be Welfare. The gov says you have a right to welfare. That property interest requires PDP when it is taken away.  Liberty: YES (but this will eventually be rejected)  Reputation—the stigma attaches from this type of allegation, e.g. the charge against him that he is the type of guy that spiked the punch, may be viewed as a liberty interest. Ct has recently held that reputation is NOT a liberty interest. c. Level of Process?  Did the student get any level of process? (needs Notice + Hearing) YES  There was an informal notice and hearing which was minimal but good enough. If he had been expelled, the level of process would increase b/c the level of private interest would increase.  Informal Notice: You spiked the punch…  Informal Hearing: Didn‘t you…No, I didn‘t  Result: You are out of here. d. HELD: the level of process was sufficient for level of interest at stake. Timing Sinner - 22 - 8/12/2008 1. 2. If you are entitled to PDP, the hearing must occur before the deprivation of the liberty or property interest. Exception: In exigency situations, the deprivation can precede the hearing. a. Ex: If it is a sexually abused child, then you can take the kid away first, and then have the hearing after the fact. b. Ex: Upon probable cause, arrest w/o warrant and hearing afterwards. IX. THE DOCTRINE OF IRREBUTTABLE PRESUMPTIONS A. Irr Presumptions are just EP classifications which get the level of review that those classifications will get, usually RB. 1. Weinberger: Law said that if you are a surviving spouse, you could only get spousal benefits if your marriage lasted 9+ months. The irrebuttable presumption is that if married less than 9 months and spouse died it was a sham marriage and you couldn‘t get benefits. Spouse argued that she should get a hearing as to whether or not her marriage was a sham. Ct said that this was NOT a PDP issue, but rather an EP issue—the law classifies b/w married couples +9 months and married couples -9 months. Thus, gets RB level of review—law must rationally relate to legitimate gov interests or permissible gov ends. Here, legitimate gov end is to protect sham marriages. Also, the 9+ month length of relationship requirement does rationally relate to this legitimate end, although it is not perfect—a hearing to determine legitimacy would be better, but this neither matters nor is considered. 2. Mass v. Mergia: State law that police officers were presumed unfit after age 50, but prior to they were given exam. This is a EP Issue, which gets RB level of review. It is not a case by case basis, we don‘t care as to the individual, just whether the law overall is rational. Also, rejected alternative for physical fitness exams after age 50. This is irreb presumption that unfit at age 50. Mergia had no right to notice or hearing. He was just fired, not PDP here. Just a EP classification. 3. Michael H: Ct assumes that H in marriage is presumed the be the father of kids by W. This is an IP. Ct used the RB test—ct viewed as substantive DP issue. The presumption rationally relates to the gov interests of protecting integrity of marriage relationship. 4. Vlandis v. Kline: CT had different fees for non-resident/ resident students. To be a resident: if non-married you had to live in CT for 1 yr before applying, if married you had to live in CT at time of application. Once classified a non-resident, you could never be considered a resident;  SC struck requirement b/c irrebuttable presumptions violate DP since there was no hearing provided to determine whether or not became bona fide state residents.  Irreb. presumption that you‘re an out of state resident whole time  You can have residency requirements and durational requirements but once you make residency the issue, you have to holding a hearing. 5. Cleveland Board of Educ. v. LaFleur: school districts had both notice requirements for pregnant teachers and mandatory times where teacher had to take maternity leave without pay (5 and 6 mo.). Pregnancy gets RB test and law would normally be OK, so court got around it with irrebuttable presumption doctrine. a. Notice was ok (admin. conv. justifies) b. Mandatory leave at set time was not OK. Raises PDP issue.  Created an irrebuttable presumption that pregnant women at that stage couldn‘t perform all duties when many could  Mandatory Leave Rule is too broad: presumes a fact that is not necessarily or universally true => have to have individualized determination.  B/c this is a deprivation of life/ liberty/ prop. administrative convenience won‘t justify it  This Case is really EP classification on medical condition  So should have gotten RB  But under RB, the law would have been sustained and can‘t have such nonsensical laws B. However, in two cases, the court has treated irrebuttable presumptions as PDP issues. So if the facts closely parallel these, treat it as a PDP issue. Sinner - 23 - 8/12/2008 1. 2. 3. PDP & Irrebuttable Presumptions – 3 elements that make these 2 cases distinctive: a. State makes discretionary decision the issue (fault or fitness); b. Result of that issue is presumed/made without a hearing; c. Hearing comes later. Bell: The law said that those involved in an accident without insurance were presumed at fault and their drivers license was suspected automatically, pending a hearing after the fact. a. Judicial-Like Taking? Not upfront b/c law says you automatically lose your license. But, later on there is a hearing as to fault. b. Liberty/Property Interest? Both, liberty to drive, and driver‘s license has property value. c. Level of DP? PDP Flaw: Hearing after the deprivation. State needed to have the hearing on fault before the suspension.  Ct said that because the state made fault the issue then it was a discretionary decision which required proper DP. d. Compare CA Law: If you get in accident and don‘t have insurance, then your license is automatically suspended, regardless of fault. B/c there is no presumption of fault, there is no irrebuttable presumption of fault and, thus no PDP right. This law just classifies and is t/f an EP issue which gets RB level of review. The law encourages buying insurance and t/f passes the RB test. Stanley: Law provided that fathers of illegitimate children were presumptively unfit, so children in custody of their father were automatically removed and after the fact, the father was given a hearing on the issue of fitness. a. Judicial-Like Taking? Not upfront b/c law says you‘re automatically unfit. But, later on there is a hearing as to fitness. b. Liberty/Property Interest? Yes—what exactly? c. Level of DP? PDP Flaw: Hearing after the deprivation. State needed to have the hearing on fault before the suspension.  Ct said that because the state made unfitness the issue then it was a discretionary decision which required proper DP. X. STATE ACTION A. Finding Govt Culpability for PRIVATE Acts: In order for there to be a breach of the Const, 14 th A requires STATE Action. Does NOT reach PRIVATE acts. 1. No STATE may deny a. Due Process, which incorporates:  First amendment  Criminal procedure requirements  Fifth amendment takings b. Equal protection c. Privileges and Immunities 2. If the gov is doing something, then there is NOT a State Action issue. All you do is say there is a State Action and move on. Don‘t analyze! a. Gov: Any governmental acts by the state, including:  City, state, county, and federal governments;  Gov Agencies (e.g. Cal Trans; DMV);  Employees acting in official capacity (e.g., public school teachers; cop (even if done illegally)) 3. If private person violated a Constitutional right, then there is no Constitutional violation, unless private person is a State Actor. a. Also: The only individual acts prohibited by the Constitution is slavery (13th amendment): see below B. When is the State Liable for Private Acts? 1. 2 Key Fact Patterns a. Lawsuit filed against the gov for something a private person did; OR b. Lawsuit filed against the private individual w/ the assertion that the private individual is connected to the state, so Constitutional rights apply. Sinner - 24 - 8/12/2008 2. 3. 4. Basic Approach: Sift the facts and weigh the circumstances, with special focus on Government blame and responsibility for the constitutional violation. a. KEY: To find the kinds of facts that show state culpability, use precedent!  Burton v. Wilmington:  F: Here, there is a city funded parking structure and inside this structure there is a privately run/operated coffee shop which refuses to serve African Americans. It is argued that b/c it is located in a state owned structure that they are a state actor, and t/f their conduct violates the 14th.  APPROACH: Only by sifting and weighing the circumstances can you determine whether there is state culpability. This means that there are certain facts that are important and you look for those facts and those types of precedents. Start w/ ―Public Function‖ Doctrine.  No clear absolute rule for determining state v. non-state action. It is fact driving and precedent driven. 3 Categories of Precedent Where State May Be Found Liable for Private Acts a. (1) Public Function Doctrine  When the gov turns over public function responsibilities to private entities. Situations where private entity doing something that is exclusively within the province of the gov‘t b. (2) Gov Enforcement of Private Decisions  The state must be compelling the action; e.g., compelling race discrimination  Enforcement of neutral law? Enforcement involuntary? Ultimate effect of neutral law to encourage racial discrimination? c. (3) Gov Regulation, Financing, and Endorsement of Private Acts  Funding?  Licensing?  Regulation?  Endorsement?  Symbiotic Relationship?  Does it give the impression of a public entity? (1) Public Function Doctrine a. State Action found:  White Primary Cases – Primary Elections: Primary elections are an important function relating to the exercise of sovereignty by the people.  If TX excluded blacks from votingclear violation of 14th & 15th amend. So TX turned over to the political parties the running of the primaries. Democratic party in the south under TX law could run their own primary election and decide who could votethey only allowed white voters. Dem party is a private entity Const would not preclude dem party from limiting membership to whites or only allowing whites to run for office.  Ct said TX turned over to democrats the running of electoral system, a public function, so dem party in running the electoral system is a state actor  Gov should not be allowed to avoid the Const by delegating the task to a private entity  Marsh v Alabama – Company Towns: If a privately owned place becomes the functional equivalent of public forum, such as a municipality, it may become part of the public forum.  A company town that looked like a regular municipality, but owned by the company. Privately owned town w/street minister preaching is asked to leave, but refuses, so sued for trespassing. Minister claims violation of 1 st amend.  Ct said the town looks like a public municipalitythe look, shape, and the powers of it given by the state, so the town is running a public function by running a co town. Sinner - 25 - 8/12/2008 b.  State is liable b/c function is the same as public towns Salt Lake City – Privately Owned Street:  Private entity owns the public streets, but when city gave it to them, they kept an easement for public to walk on sidewalk. The church had the full right to control the messages on the sidewalk since city had no intention to maintain a public forum w/ this easementso groups that didn‘t have the view of that of the church were asked to leave.  They argued that they could have free speech b/c the private street was actually a public streetlooks like it, acts like it, gov sold it and controls through easement. The Cts have ruled that it is a state action.  Evans v. Newton – Privately Owned Park:  A park/land given by Senator to the city on the condition that the park be operated as a park for white citizens only. Initially the city had a board that operated it  state action. So they turned it over to private trustees to maintain and run it.  The Ct found state action still b/c they said the park was performing a public function; the facts indicated that still maintained it; it looked like a public park; people thought it was a public park b/c it was run as a public park for many years.  Jackson v. Metropolitan Edison – Limiting the Public Function Exception  A private utility co that cuts off people‘s utility services w/out any P DP. P argued that utility is state actor b/c of regulations and historically the state provided utilities (e.g. historically performed historically public function). But modernly they are provided by private entities. Ct said State action b/c ―traditionally exclusively reserved to the state.‖  Modern Rule: In order to find State Action using the public function theory the private entity must be exercising powers traditionally and exclusively reserved to government.  Narrower def of public function—limties to white primary cases and white v. chamges.  Best cetgory for public function a. If this rule can be satisfied (and facts are parallel to this case), then it is conclusive that there is state action. 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. c. Under the modern rule, looking for the kind of things that used to be the exclusive province of the State: d. Prisons; e. Schools for bad kids f. Ex: 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‖. No State Action:  Shopping Centers – Private shopping centers are like company townsthe size, the look, the place in our society that towns once had; ―down town.‖ Now you go to the mall, not downtown. They function as downtowns. There was a labor protest where the employees wanted to picket at mall.  Sinner - 26 - 8/12/2008 5. Ct said the mall is performing a public function equal to the old town so a state actor. The employees thus had the free speech right.  But later the Ct rev‘d and said private shopping centers are not state actors  EXCEPT CA makes private shopping centers state actors under CA’s Const, but not protected under Fed Const.  HYPO – Congress turns over to the Olympic committee the right to use the term ―Olympic.‖ But there are Special Olympics. Gays wanted gay Olympics and the US Olympic com. refused to allow it. Argument of denial of EP rights when other groups are allowed to use it.  The US Olympic comm. has US in its name, sponsors int‘l games for US athletes, and Congress has given total authority to it in regard for the use of the name Olympics, but Ct said that is not state action b/c state never told them to discriminate.  NCAA – Jerry Tarkanian always violated the rules. NCAA finally said to UNLV to fire him or the college wouldn‘t participate in Div 1A sports. So UNLV fired him and he sued the NCAA claiming they were a state actor for lack of P DP rights (not the UNLV which is a clear state actor).  NCAA runs collegiate sports, including those of public schools in the country. Most, however, are private entities like Pepperdine. Does the fact that public schools turned over their ability to run sports to NCAA make the NCAA a state actor. Held: NCAA=private, no a state action referring to Olympic case. State entities voluntarily agreeing to be regulated, so not state action.  Compare - Brentwood Academy – Similar case, but where private entity running state of Tenn.‘s high school football programs. Court sad unlike Tark case, high school entity was a state actor, since most of schools being run by private entity were public schools. So state actors here. c. If claiming PDP violation, less likely to find State Action; If claiming EP violation, more likely to find State Action  Ex: 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. (2) Gov Enforcement of Private Decisions a. Whether state enforcement of a policy with police, prosecutors, courts, etc is state action? (e.g., private individual choosing to exclude a speaker from their premises, and the speaker suing the govt, decrying State Action). b. Enforcement of Neutral State Laws Are NOT State Action  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.  Neutral State Laws: State enforcement of trespass laws, or trust laws…  HYPO: A throws a party for whites only, B (black) shows up and won‘t leave... you call police to remove trespasser. Issue: Is there state action if they remove B for trespass? Argue that this is NOT state action b/c it is only enforcement of a neutral trespass law which protects against unwanted intruder. 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.  State action found  Sinner - 27 - 8/12/2008  Hypo – private business w/ sign that says they reserve the right to refuse service to anyone. The Store did not want to serve blacks. If blacks did not leave, they would be charged w/ criminal trespass.  Shelly and (neutral) Abney are not extended to this case.  Some might hold it is not state action, and applies Abney.  Peremptory Challenges  Batson v. Ky said that use of preempts can‘t be based on race. This was a Criminal case where the state was exercising preempts, so clearly state action.  BUT, later cases where private attorneys against private attorneys (i.e. Civil cases). Batson was extended to private racial discrimination by private lawyers b/c the gov is running the ct system which is sufficient to be State Action.  SO civil cases and private counsel violate EPC w/racial preemptory challenges and the v. granting of these is enough for a ct to find sufficient State Action.  Public Defender  Public defenders are NOT state actors in performing their duty, but they ARE a state actor in preemptory challenges.  Where the govt. paid public defender, question was whether govt. is responsible for damages in civil suit against the PD by client, but court said not state actor in role as public defender because working against the govt., even though the govt. is paying him. So even though employee of govt., still treated as if a private employee, and so not a state action.  Penn v. Board of City Trusts – A private trustee sets up a private college for white male orphans w/ the city as the trustee. Obvious state action. Then the city appointed private trustees to run it, but ct said this appointment still made it state action.  States are generally responsible for trusts and state action will be found if their involvement is very close as was the case here.  COMPARE Evans v. Abney: General oversight of a trust will NOT be enough to find state action b/c this is just enforcement of a neutral state trust law. No state action  Evans v. Abney – City had lots of continuing involvement with the park, which is an indication of state involvement, and is t/f sufficient for state action. B/c of public function doctrine, park needed to be for all races. But the remainderman in the will challenged the fact that the purposes of the trust could no longer be maintained b/c the trust was given on condition that park be operated for white citizens only. They sued to get the property back, and then can do what they want with it.  Under ―Cypres Doctrine‖ every state has provision to save the trust when some of the provisions cannot be met, as long as it is possible to accomplish the principle purse of the trust. If you can‘t meet the terms of the trust, the property goes to the remainderman.  I: What was principle purpose, to be racist or to have a park?  If to have park can use cypres to save trust.  If to be racist then can‘t save trust.  H: Here court ruled the principle purpose was in fact to be a racist. So, the trust could not be saved and the park does to the remainderman. US SC said that‘s NOT a state action  RULE: So if the state is applying a neutral principal to state law, there is NO State Action even though it advances racial  Sinner - 28 - 8/12/2008 6. discrimination. ―The enforcement of a neutral law by the state is not a state action.‖  All this case deals with is how to interpret neutral trust laws. c. Authorization & Approval  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.  Ex:  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.  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. d. Involuntary Discrimination  Specific Fact Pattern: There is state action when private entities who did not want to engage in racial discrimination and the state compelled them too.  Never the reverse, where compelling discrimination that parties want to engage in.  Shelly v. Kramer – Private people agreed w/ neighbors not to sell to minorities (covenants that ran w/land). So there is a suit to enjoin a neighbor from violating the covenant b/c he has sold to a racial minority.  Issue: Does the state injunction or state damages make the gov responsible for private act discrimination? Gov enforcement of private racial discrimination is State Action, state action here.  Key: gov forced private discrimination on one that chose not to discriminate. Only this fact pattern Shelly serves as precedent.  The reverse isn‘t gov enforcement: Where gov-compelling parties to discriminate when they already want to. (3) Gov Regulation, Financing, and Endorsement of Private Acts a. Gov Activity on Private Property – ―Symbiotic Relationship‖  Generally: The fat that the gov and a private party are in a close working relationship or even in a K relationship does NOT necessarily establish a State Action.  Burton v. Wilmington Parking Authority: Privately owned coffee shop operated in public parking lot, court found state action b/c looked like it was part of the public parking structure, and people had impression that run by Wilmington parking authority, and symbiotic relationship, where each needed the other, and finally the govt. could have prevented the discrimination, and so by sifting facts and weighing circumstances, enough state action to make Eagle Coffee Shop subject to 14th amend.  State Action Found: The SC found that the government was so entangled with the restaurant that there was a ―symbiotic relationship‖ sufficient to create state action. E.g., …  Government had responsibility for upkeep and maintenance of the building and done with public funds.  The restaurant‘s customers used the parking facility.  Government benefited from revenues from the restaurant Sinner - 29 - 8/12/2008 b. NOTE: This case does not stand for any use of public property is sufficient for state action. For example, it‘s common for churches to meet in public library or public school and that alone is not sufficient for state action.  Is the key case where government licensing and regulation was deemed sufficient for state action.  Gilmore: Private school use of public park is enough for state action. Gov Financial Assistance to Private Individual or Entity  Generally: Doubtful that financial assistance by itself justifies applying the Const to private.  State Action found  Norwood v. Harrison: SC found that there was state action when the govt gave free textbooks to private schools that engaged in racial discrimination. Noted State was obligated to steer clear of old segregation system, and institutions that have racial or other discrimination.  State can‘t do this if the aid has a significant tendency to facilitate, reinforce, and support private discrimination.  McG said that this is an unusual case b/c limited involvement was cause for state action.  Gilmore v. City of Montgomery: SC held that a city could not give racially segregated private schools exclusive use of public recreational facilities. The SC found state action because the ―city‘s actions significantly enhanced the attractiveness of segregated private schools, formed in reaction against the federal court school order, by enabling them to offer complete athletic programs.‖  Norwood and Gilmore are two good examples of the SC finding state action when there is only minimal involvement.  1 view: These 2 cases represent a possible view that a low level of state involvement can equal state action if the involvement deals w/ race discrimination  It is safe to say that if the school discriminated against short people, because height is not a suspect classification a de minimis form of state involvement will not be enough to find state action.  2nd view: it doesn‘t matter what the private entity did and if the state is responsible for it; just focus on the fact that the state gave away things (books) and the Constitutional violation. (prove the state did this out of racial hostility)per se invalid.  No State Action  Rendell-Baker v. Kohn: Privately run alternative high school for different students. The SC held that there was no state action when a private school, receiving 95% of its funds from the state, fired a teacher w/o PDP. Ct said NO State Action for purposes of teachers PDP, but possible State Action for something else, such as suspended student making the same argument.  The Court made it clear that government funding by itself is insufficient to find state action. There has to be a juxtaposition of the violation and the state action. The Court explained that the school was not different from other private businesses whose business depends on contracts with the government and that the ―acts of such private contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts.‖ The Court said that because the school‘s actions were not ―compelled or even influenced by any state regulation,‖ the Constitution did not apply.  Sinner - 30 - 8/12/2008 c. d. Although the connection b/w state and private entity is great, here there is no state action  There is a more remote connection to state action when dealing w/ teachers, as opposed to dealing w/ students  Blum v. Yaretzky (favorite issue): Federal law obliged private nursing homes to make sure that their residents who were receiving federal reimbursement were in fact eligible for reimbursement. The end result of this federal regulation was that some of the homes were kicking out people w/out notice or hearing, in violation of PDP rights.  SC found no state action because it was the nursing homes who decided to kick people out. The government did not require it; it only asked that the nursing homes check patient eligibility.  Tension among the above cases  Rendell-Baker and Blum are more likely how the court will resolve these issue than Norwood and Gilmore.  In other words, the Court is most likely to find that govt subsidies are State Action when the govt‘s purpose is to undermine the protection of constitutional rights (i.e., discrimination in violation of EPC). Gov Licensing or Regulation of an Activity  Generally: Majority of cases find that govt licensing or regulation is NOT sufficient to create State Action.  RULE: Just b/c a Private Individual/Entity is subject to state regulation, doesn’t make it state action for 14th amendment purposes  No State Action  Moose Lodge: Private lodge was engaged in racial discrimination. But, the state gave the Lodge a liquor license.  Although the state could have prevented this discrimination by not giving the license until the lodge was free of discrimination, the Ct said just having a gov license doesn’t make the gov responsible for private act of racial discrimination. Also that they could have prevented does not make them responsible. Thus no state action.  However, most likely to find State Action in case involving racial discrimination—see Reitman below.  Jacksonn v. Metro Edison: Court held that govt reg of a utility was not sufficient to create State Action. Claim that private utility has violated individual‘s PDP. Argued that state actor. Granted monopoly by govt., and heavily regulated, and public function, and the impression was that it was run by the govt., so all those factors are indicative of a state action, but court still said not a state action. As to the public function exception, the court said that‘s limited to those activities that have traditionally been exclusively the function of the govt., like running elections case or company town case. Gov Authority or Encouragement of an Unconstitutional Activity  Significant Encouragement  When the challenged private actions are overtly or covertly encouraged by public officials or gov measures, the state action is present.  Reitman v. Mulkey – Ca has fair housing laws. Before the passing of these laws, private landlords could do as they chose, i.e. discrim based on race, etcthey had the freedom to discim or choose in any way b/c they are private entities. But under the fair housing laws, they can‘t discrim based on race. (other laws prevent it against gender, handicaps, and ―unrx discrimination‖). CL private discrim was ok, but under new law it wasn‘t.  Now, the new law is repealed, and LLs can racially discriminate  Sinner - 31 - 8/12/2008  Issue: is the repeal/law a state action that makes the state responsible for private discrimination?  One view: US SC said yes b/c the law was passed for the purpose of encouraging private racial discrim. State encouragement/approval of racial discrimination can be one factor of proof of state action (by itself not likely to be enough) --modern ct is lunlikely to find sufficient for state action.  Better View: since the repeal requires 2/3 votes to pass another fair housing law, then that is a race-based classification, which req’s CSI (where there is no compelling reason for this to require 2/3 votes and other just requires a majority). In this view, no state action issue, rather an EP issue.  Bring up both.  According to McG though, repeal of civil right laws is not state action, and so this case is unusual. Berger and Rehnquist courts looking at this case said that Reitman stands for racial classifications getting strict scrutiny, and so since 2/3rds vote, it classifies based on race, so not state action case, but really a classification case. XI. CONGRESSIONAL POWER: CONGRESSIONAL LEGISLATION IN AID OF CIVIL RIGHTS AND LIBERTIES A. 2 Enumerated Powers (McG is VERY fond of!) 1. Congress’ Ability to Reach Private Acts a. Generally: Can Congress use its power under 13th and 14th to reach private acts? b. Congress CAN reach private acts under its enforcement power of 13th A § 2 (guarantee against the imposition of slavery or involuntary servitude)  2 Elements to Reach Private Act  1. Must involve racial discrimination; AND  Congress can‘t use for anything other than preventing racial discrimination.  2. Must involve badge of slavery (e.g. racial discrimination involving employment, contracting, or ownership/use of property—slavery + any disability imposed on slaves).  Likely does NOT include service in a restaurant or hotel.  Thus, Congress can pass appropriate legislation to prevent private slavery, but they can also punish the imposition of badges of slavery.  Ex: Federal law can be passed not allowing private acts of racial discrimination, so (1) Property, (2) contracting, and (3) Employment are all things that Congress can make violations of federal law by expanding the 13th A from slaverybadges of slavery, which means all conditions of slavery. c. Congress CAN reach private acts which invade your Privileges and Immunities b/c they have they inherent power to protect the essential attributes of being a citizen under 14th A.  List of Priv & Immunities (limited)  Sailing the Navigable Waters;  Travel Interstate;  Travel to DC to Petition for Grievances;  Right to Protection While In Custody of a Federal Marshall  Thus, Congress can pass federal legislation that prevents private interference w/ 4 Privileges & Immunities. [Under 14th A] d. Congress can only reach state acts, and CANNOT reach private acts w/ regard to: Sinner - 32 - 8/12/2008 2. Free Speech; Establishment Clause, Free Exercise, Gender Discrimination, EP, DP, etc. Congress’ Ability to Change the Substantive Provisions of the 13th, 14th, and 15th A of the Constitution. a. Congress is theoretically limited legislating pursuant to enumerated powers in the Const. b. However,  Congress has limited ability to expand the underlying substantive provisions, BUT any significant changes will violate.  Congress can change remedial, but not substantive provisions of 14-15th amendments (MG doesn‘t like this statement)  Congress can change if provision is closely related to Constitutional right, but can‘t significantly change the underlying Const. right (MG‘s distinction)  Ex of Significant Changes of Substantive Provisions (what we should focus on b/c substantive v. remedial is difficult to determine)  13th—No person can hold another person in involuntary servitudeCongress can expand to include badges of slavery.  15th—Not enough c. Congress can change the remedial provisions.  Ex: Make criminal; Provide for civil liability for violations of these A d. ASSUMES CONGRESS IS regulating state acts—something it has the power to regulate, but congress can’t change the substantive terms of the amendments, but they have some ability to impact the remedial portions. But any significant changes go beyond federal power. –this is from McG notes e. 13th amendment, § 2:  § 1: Congress can regulate slavery and involuntary servitude  § 2: Can Congress redefine § 1 by passing ―appropriate legislation‖  i.e. legislation that is reasonably connected to § 1?  Yes, it did that to include badges of slavery f. 15th amendment  § 1: no intentional discrimination on voting  § 2: Congress had passed legislation saying no discrimination impact on voting. g. 14th amendment  §1: DP/ EP  §5: Can congress go beyond this? YES  KEY CASES:  Issue: Can Cong make criminal or civilly liable State Acts that the Court would not find in violation of the 14th Amend?  Katzenbach v. Morgan: Congress banned literacy tests for voting (which were Constitutional) as to those Puerto Ricans who‘ve finished 6th grade; does Congress have the power to pass this legislation—is it ―appropriate‖ legislation?  Yes, Congress has power to ban literacy tests b/c if literacy test, then no one in neighborhood can vote.  Problem: Cong limited to enumerated powers (protecting DP and EP, etc) and the tests do not violate any enumerated powers.  Court: Upheld Congress‘ law banning the tests.  Congress can‘t say literacy tests violate Const./ EP when we‘ve said they are Const.  But Congress can say that where literacy tests have caused ―unequal gov’t services,‖ b/c the purpose of the fed law was to prevent unequal fed services.  Have the power to fix that EP violation  Sinner - 33 - 8/12/2008  Therefore, ok to remedy that indirectly by banning literacy tests  OR v. Mitchell: Congress passed law to give 18 yr olds right to vote in Federal and State elections b/c ―old enough to die, old enough to vote‖... where does Congress get power to regulate state elections?  Issue: can Congress ban a state voting rule that doesn‘t violate any Constitutional clause? NO.  Court rejected Katzenbach argument that 18's are denied equal gov‘t services (b/c they‘ll become voters so gov‘t won‘t alienate them)  Court said no enumerated power to give 18 year olds right to vote.  Reconcile with Katzenbach:  Closer connection between literacy and voting, than age and voting  If race discrimination, Court is more willing to give congress power  Bernice v. Flores: SEMINAL CASE on enumerated powers.  Cong passed religious freedom and reformation act (RFRA). Court had previously held that must be a CSI to take away free exercise of religion rights. But, in Smith v. OR: Court said test was not CSI (didn‘t say what it was).  Then, Congress passed RFRA: where Congress affirmatively said test was CSI  Held: Court said ―we formerly said test was not CSI,‖ Congress had no right to say it was CSI b/c under the 14th amend, Cong is limited to correcting EP and DP violations. This is a statement about enumerated powers (i.e., bound by what it says in the Const.—here § 5 of 14th).  Sinner - 34 - 8/12/2008 XII. FREEDOM OF SPEECH – 1ST A A. Fundamental Right: Congress can pass no law abridging the freedom of expression (protects freedom of speech and press). B. Basic Approach 1. Focus on the particular type of free speech issue you have. 2. Make initial judgment about the typ of speech regulated. 3. Pick the proper test. 4. Apply & Analyze C. Content Neutral Regulations 1. What goes under this? D. Content Based Regulations 1. Generally a. Content Based = when gov places its authority on one side of the argument.  Regulation on any type of speech (e.g. political, religious), a message, or a point of view, or distinctions made based on nature of group or speaker. 2. Radical Political Speech = Brandenburg v. Ohio Clear & Present Danger Test a. Advocating unlawful or illegal acts to achieve political gain can‘t be regulated unless CPD. b. CPD Test: Radical Political Speech can be punished only if satisfy 3 elements:  1. Words of Advocacy of Violence or Unlawful Acts  Words must be the right kind  2. Specific intent to accomplish illegal acts  Words have to be stated for the purpose of accomplishing those acts  3. Likelihood of success of achieving the violence  If 1 of the 3 elements is missing, then the speech is protected by the 1 st A. This is a v. strict test and provides for a high level of protection for political radical speech. c. Brandenburg v. Ohio  Reporter and cameraman attended a KKK ―rally.‖ Portions of the meeting were later broadcast on a local station and on a national network. No one was present other than the members and the news people. The meeting was really bad and wanted to get revenge against Jews and blacks. Here, failed every element of the test. The problem was that the law at the time did not draw a line b/w teaching and preparing a group for violent action. Here just teaching. So, KKK was ok. d. Example: Law said that you can‘t threaten life of President. Black panther said that President sent more minorities to Vietnam than white. Then said ―we should kill President like he killed our men.‖  Ct said that this sentence maybe satisfies the ―right kind of words‖ requirement. The ct emphasized the 2nd element and said that it was out of context. They didn‘t mean to kill President, they were just overstating. What they meant was use the power to vote. SO, no violation. e. Dennis v. West: The Smith Act made membership in the Communist party a crime. In upholding the law the Court said C&P Danger. But the threat is small, so how do you satisfy the test? The Court applied the version of Learned Hand, that said ―as danger increased the need for proximity decreased.‖—is this still good law????? MAY STILL BE APPLICBLE—BUT NOT REALLY FOLLOWED. This is the discount version of the clear and present danger test. So as the danger of overthrow of U.S. increased, the need for proximity lessened. The govt. doesn‘t have to wait for communists to take over D.C., can instead act on preliminary acts. Later cases after Dennis, limited the holding of Dennis, and this was not applied in any case after Dennis. f. 2 Instances when CPD Phrase (not Test) is used:  Bridges v. California: Judge found someone in contempt of court for a statement critical of the court made outside of the court. Bridges was a labor leader visiting CA at time when some noted labor leaders were on trial in CA. Reporters asked Bridges do you think labor leaders will get a fair trial, and he said not a chance in hell, this is CA, no way will get fair trial? So because he criticized court, he was Sinner - 35 - 8/12/2008 g. held in contempt. Supreme Court says non-party to case CANNOT be held in contempt for statements critical of judge, unless the statements present a CPD to the administration of justice. If you‘re a party to case, or make statement in courtroom then rules are different. In subsequent cases it‘s been said that judges need to be thick skinned, so impossible to satisfy CPD test for non-party out of court statements.  Near v. Minnesota—Prior restraints of speech are presumptively invalid, and the only exception is when some danger can be prevented by a prior restraint, and in referring to that danger, the court calls it a clear and present danger. Ramifications  If you are involved in group w/ lawful and unlawful aims (words), you are responsible only if:  you are aware of the unlawful aims (words) and  you have the specific intent of accomplishing them.  ie. – Member of communist party with lawful and unlawful aims, and the Ct has said you can be prosecuted for being in Commy party only if you are aware of unlawful words and have the specific intent of accomplishing them.  Participation in some civil protest and a certain member of protest is engaged in violent protest, you are not responsible for violence unless  you knew of the violence  and had specific intent to accomplish them  Gov can’t ask if you are in a member of a group w/out asking about its unlawful aims  i.e. are you in Comm party; are you part of their unlawful aims  Cannot ask only if you are in Communist party w/ out asking about unlawful aims 3. Defamatory Speech = NY Times v. Sullivan OR Gertz OR Dunn and Bradstreet a. Generally: A libelous/slanderous statement is beneath constitutional protection.  b. Public Figure/Official & Public Concern = NY Times Malice [NY Times]  Standard = Actual Malice = (1) Intentional Falsehood; or (2) Reckless Disregard: Before a public official can maintain action for defamation, they must show actual malice = intentional falsehood or reckless disregard for the truth.  Public Concern  Newsworthy  Public Official?  (a) any person elected to public office;  (b) any candidate running for public office;  (c) all gov employees that play an important role in setting public policy (e.g. police commissioner, ass‘t superintendent of ski resort, etc, BUT NOT postman)  Public Figure?  Individuals that invite publicity/voluntarily avail themselves into a public issue or controversy, and have access to the media that can use self-help.  2 Types  1. Public Figures for ALL Purposes: Usually people that are instantly recognizable.  Ex: Celebrities—Actors, Sports Stars  2. Limited Public Purpose Figures: Persons that are noted for a particular cause or issue.  Ex: Person who was recognized for promoting immigration reform. They would be public Sinner - 36 - 8/12/2008 only w/ regards to immigration, and in such instances NY Times malice would apply. Reckless Disregard?  Entertaining serious doubts about the truthfulness of the statement, not verifying it, and publishing it anyway. (Subjective)  This standard is lower than SL, but higher than negligence (e.g. not enough that person could have investigated charges and didn‘t—no prior investigation requirement).  Compare – CL Malice which means ill will or hatred.  Ex: A  Damages: No limits—actual, presumed, punitive.  Burden of Proof: П has burden to prove statement was false. Tie goes to ▲. Private Figure & Public Concern = Negligence [Gertz]  Standard = Negligence = Failure to use rx care (minimum standard)  Damages: Limited to proven damages (e.g. .economic or dignitary).  Note: If you prove NY Times Malice, then you can get presumed and punitive also.  Burden of Proof: П has burden to prove statement was false. Tie goes to ▲. Private Figure & Private Concern = Strict Liability [Dunn & Bradstreet]  Standard = Strict Liability (probably)  Damages: No limits—actual, presumed, punitive.  Burden of Proof: ▲ has burden to prove statement is true. Tie goes to П.  Modernly: П has burden to prove statement was false.—THIS IS CORRECT—PURUSANT TO FREE SPEECH CLAUSES  c. d. 4. Right to Privacy (4 Torts) a. Distinguish: This is NOT the fundamental right of privacy, but rather the right to be left alone and keep info private. b. 1. Revealing Private Facts  Definition: Tortious if facts are so private that revealing them shocks the conscious.  Rule: Gov cannot publish the truthful revealing of private facts unless there is some CSI. SO, person can get punished for revealing if violates some CSI. BUT, ct has never found publishing to be CSI—this means that the revealing of the private info (i.e. publication) is probably protected by the 1st A, and the state cannot punish the revealing of the info absent a CSI.  McG says that if it does shock the conscious, then it would be a CSI.  Though the SC has never decided, MG thinks that truthful info is protected by 1st amend even if it is offensive.  Ex: Newspapers revealing the identity of a rape victim was NOT CSI; Protecting identities of judges under investigation for misconduct was NOT CSI.  Truthful Facts = Protected ABSENT SOME COMPELLING STATE INTEREST  Other Facts = CSI c. 2. Intrusion on Seclusion  Definition: Intrusion occurs when one invades another‘s privacy in an illegal way in order to get info. Some type of illegal act to gather information. Usually in the case of news gathering.  Rule: Probably no 1st A protection for gathering this information.  Ct will allow damages, but no injunction.  In Bartnicki, other persons illegally gathered info, gave it to the media and media published it. Ct said that only the person who collected it could be punished. The publication was protected whereas the gathering of it was not. The media was not punished if they had nothing to do w/ the illegal collection of the info. Sinner - 37 - 8/12/2008 d. e. Gathering of info is NOT protected by 1st A to the same degree as the publication of info, thus the person could be subjected to criminal/civil penalties for gathering info. But if the media (publisher) legally obtains a copy of this info, then they can legally publish w/o liability.  Ex: Media outlet could be sued for intrusion when reporters rode along w/ police officer in executing of arrests and search warrants. 3. Misappropriation  Definition: Taking of someone‘s likeness for commercial gain.  ―Likeness‖ = person‘s voice, picture—anything that is recognizable.  Rule: Probably no 1st A protection for misappropriating someone‘s likeness.  Zacchini: News reported the whole act of a guy who was shot out of cannon. SC found misappropriation b/c they reported the whole act. New station was not protected by 1st A for misappropriating Z‘s identity. 4. False Light  Definition: Making any person (public/private) look like something they are not. Could be good or not, but cannot be defamatory.  Standard:  Public Figure/Official & Public Concern = NY Times Actual Malice  Actual Malice = Intentional Falsehood or Reckless Disregard.  Private Figure & Public Concern = NY Times Actual Malice  Private Figure & Private Concern = Maybe Negligence, BUT WE DON‘T KNOW—COULD BE RECKLESS DISREGARD  Time v. Hill: Hill family in the 50s had been terrorized by 3 escaped convictsfiction novela play  a movie. Life mag talked about the play based on the novel. The mag reported the true situation, and made factual errors such as the daughter suffered verbal sexual abuse, Mr. Hill was portrayed as courageous in defending which was not true either.  SC rev‘d Hill victory b/c it req‘d proof of intentional falsehood or reckless disregard  Note that in defamation this type of a person would get a different standard: at least N w/ limitation on damages. Here, intentional falsity or reckless disregard is req‘d b/c harm is so temporary.  5. Sexually Explicit/Obscene Speech (Porn) = Ca v. Miller Test a. RULE: All but hardcore porn is protected by the 1st A. b. CA v. Miller Test – Level of Protection given to Sexually Explicit Material: All sexually explicit speech, except for hardcore porn, is protected UNLESS it meets these 3 elements (basically, if meets these 3 elements, then it is obscene).  1. Must appeal to the prurient interest of the average reasonable adult (Roth Case)  Prurient interest: An unnatural curiosity with regard to sexual matters.  Average Rx Adult: Judge harmfulness based on impact on average rx adult, not susceptible members of society, kids.  Material Judged as a Whole: Material must be judge as a whole to determine whether it is inappropriate, not just the obscene parts.  Exception = Pandering: If you emphasize the dirty parts in your advertising, then ct will look only at these dirty parts in determining whether the publication is obscene or not.  2. Patently offensive to the community (2 sub elements)  i) Applying contemporary community standards; AND  Each community defines differently (e.g., LA, Vegas and NY might have their own standards—in some communities it might be more or less than the norm). Sinner - 38 - 8/12/2008 c. d. e. ii) As specifically defined by statute or judicial interpretation of a statute  (what we consider to be patently offensive must be defined in statutes or by court to address the problem of vagueness in definition of porn).  3. Without serious (literary, artistic, political, or scientific) value (not a closed list).  This is a national standard.  Jenkins v. GA - 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.  Apply this test so that all but hardcore porn is protected.  Exception: Fighting Words (see below) Cases  Paris Adult Theatre: City filed to have movies that show obscenity in theatres enjoined from having permission. Issue: Is sexually explicit speech allowed outside the home?  SC said outside the home there is NO absolute right to view, see or read sexually explicit material. ―Obscenity possibly endangers public safety‖ and the S Ct spoke of ―the interest of the public in the quality of life and the total community environment and the tone of commerce in city centers. Porn in the Home  Once in home anything (but child porn) is protected. Children & Obscenity/Porn  Can‘t make law to protect kids by limiting adults!  FCC: FCC banned phone sex services, unless the person got an id # which they used. This must be judge based on the impact of adults. This is fundamental! Ct said, BUT, if the law were to say that you could only access phone sex lines w/ such things as a credit card, then that would probably be constitutional—most adults have this, whereas most kids don‘t. This notion—limiting to credit cards—then it might be possible and constitutional. Otherwise it would not be.  Basically, all child porn must satisfy the CA v. Miller Test—if you prove this it is not protected.  Child Decency Act: law said u can‘t send indecent stuff to kids  1st Question: Does it just limit kids or does it impact habits of adults?  Ct said indecent speech is protected by 1st, since the Internet can‘t determine age via keyboard; the law impacts all adults and violates constitution.  So apply the adult Ca v. Miller test. Law struck.  Virtual child porn is treated differently than actual child porn b/c it is just cyber images.  Ashcroft case – C sought to regulate cyber child porn: computer depictions of kids in sex acts either by use of computer images or altering pictures.  Ct said virtual child porn protected unless satisfies CA v Miller; also, also since its virtual, kids weren‘t involved in the porn  State argued that even if it would create a propensity to commit child porn, ct said that tendency is not enough to ban it.  6. Indecent Speech – Fighting Words, Profanity = Chaplinsky v. New Hampshire Sinner - 39 - 8/12/2008 a. b. c. d. Rule: Indecent Speech is protected from regulation by the 1st Amend.  Note: Indecent speech is NOT protected on Broadcasting—TV or Radio Limiting Exception – Chaplinsky: Fighting Words NOT protected by constitution.  Cohen v. CA: C wore jacket in LA that said ―F*** the Draft‖... convicted of violating CA statute; SC reversed... not obscene under porn cases and not fighting words, so is constitutionally protected. 3 Elements To Find Fighting Words = NOT protected  1. Fighting Words  Vulgar, Profane, Indecent directed at another  By their very utterance would inflict injury or would cause a physical reaction that would lead to breach of peace if the other person is able to respond.  2. Face to Face confrontation  Cross Burning + Intent to Intimidate (i.e. threaten violence against someone) is not protected by the 1st A. BUT, you can‘t assume that cross burning = intent to discriminate. Intent must be proven separately.  RAV v. St. Paul, MN: cross burning on lawn of black family... prosecuted under ordinance that made racist fighting words a misdemeanor; SC reversed b/c ordinance didn‘t ban all fighting words, only one category, so it was content based (gets a CSI, which it failed).  3. Law must be limited to fighting words  If not, it is overbroad and cannot be applied even as to fighting words.  Houston v. Hill: Law made ―interference‖ with cop in performing his duty a crime. H says fighting words to cop giving him a ticket; law struck b/c ―interfere‖ is overbroad and reaches more than just fighting words.  Hateful/Racist/Inappropriate speech IS protected by the 1 st A. Issues Related to the Regulation of Indecency Protected by the 1st Amendment (absent Fighting Words Exception)  Content Based Regulations of Broadcast media and TV  Intermediate test  Red Lion - law: right to reply, FCC regulation that gave the right to reply to unfavorable radio comments or TV endorsements to political candidates.) Ct upheld this right as constitutional. Different then Pacifica b/c gov ownership and regulation of the spectrum so broadcast media, TV and radio can be regulated. (1) They own the spectrum over cell phones; etc… the ownership gives gov the right to regulate it. (2) Since its a limited resource, the gov needs to reg it. (3) It enters the home in a pervasive way and gov is justified in protecting kids. Get an intermediate test. So when gov regulates speech on TV it’s a Int test for content based reg.  Pacifica – law: no indecent speech Ct has held that use of indecent speech can be regulated on radio, TV. Can allow indecent speech late at night (safe harbor).  Broadcast TV and Radio Free Speech Rule:  SPECIAL STANDARD with regard to Bdcast TV and Radio:  Mid-Level (or Balancing) Test: Any regulation of Bdcast TV and Radio must substantially relate to important govt interests.  Less strict test for TV and Radio justified b/c it is intrusive and pervasive by entereing our homes, therefore govt. can regulate free speech to protect children.  FCC v. Pacifica: Facts: Bdcast George Carlin‘s album. Overheard by man taking son to Drs office. Pacifica sanctioned b/c rule, although CB, substantially related to govt. interest. SAFE HARBOR RULE: indecent material can be channeled into safe harbor hours of 10PM-6AM, otherwise indecent material is easily punished by the FCC.  CANNOT ban indecent material completely. Sinner - 40 - 8/12/2008 Cable, Internet, Dial-a-Porn get General CB Free Speech Test: CSI (If CN: Mid-Level) Cable TV Free Speech Rule: CSI Test Playboy Case: Congressional rule saying that Playboy channel be completely scrambled or just Bdcast during Safe Harbor. 70% companies limited Playboy between 10PM and 6AM. CABLE CSI TEST: Any regulation of content must be narrowly tailored to accomplish CSI.  Rx Adequate Alternatives must be considered.  Apply CSI b/c none of the specific free speech tests apply. Court: There existed a rx adequate alternative to what happened to TV, which applies only to cable. The alternative is that home owners can ask for complete blocking. General Free Speech Regulations: CSI Test if Content Based Regulation: Sable Communications: Facts: Involved the reg of indecent dial-a-porn. Court: if it is obscene or ponographic it is not protected, if not obscene or porno, the content is protected absent a CSI. TEST: the regulation must be narrowly tailored to accomplish a CSI 1) There must be no rx adequate alternatives 2) Here the Court finds 2 rx alternatives: Require credit card use to access the services. Even if suscribe to cable, lock out divice. Internet Regulation: CSI Test Reno v. ACLU: challenged law bans distribution of indecent or patently offensive material to persons under 18; was supposed to protect people under 18, but you can‘t control internet so that only kids get protected and doesn‘t harm adults. The regulation impacts the viewing and reading habits of adults, so can be protected under 1st if not obscene (this case, didn‘t satisfy Miller). Any regulation that attempts to protect kids, but inherently harms adults free speech interests gets adult standard. Can govt regulate words that do fall short of hard core porn? No, but may get under CSI catch-all. TEST: CSI (as framed above) Denver Telecommunications Consortium v. FCC: i) Facts: involved several regulations of cable, several approaches First regulation: Requirement that cable segregate the sexually explicit materials from leased access channels, on a single channel and block it, with 30 days to block or unblock. Court said: CB regulation and thus, CSI test Impacts the viewing habits of adults, not narrowly tailored b/c not limited to kids Segregation and blocking requirements shot down Second regulation: permission of the cable operator to not broadcast indecent material on leased access channels (i.e. those channels turned over for others to use, not able to be regulated at all)—but this law said that the city could censor indecent content here a) Court says its OK = Const: CB regulation, but message neutral which should get a strict test, but Congress said that cable had to turn over leased access to them, so why isn‘t it ok for Congress to say that you can turn it all over to them? (1) Uphold because Congress wasn‘t mandating that indecency be barred, allowing the cable operators to do it on their own. (2) Not a precise free speech resolution (hard to get much from it). Sinner - 41 - 8/12/2008 Third Regulation: Regulation to censor public access channels (PEG)  Court struck it down: wasn‘t common that indecent material was on these broadcasts, only occasionally.  Even if there was a problem with regard to indecent material, was a rx adequate alternative, which is allowing the local authorities to decide what they consider it to be patently offensive in their locality E. Fallback/Catchall = CSI a. RULE: The restriction of speech must be narrowly tailored to accomplish a compelling state interest. Time, Place, and Manner Regulations 1. Content Neutral Regulations = Ward v. Rock Intermediate Test (Content Neutral Regs Include Non-Speech Gov Interests) a. TEST: Content Neutral regulations must be narrowly tailored to advance significant/substantial/important non-speech gov interests  Use the facts to balance the competing interests (in a practical kind of way).  Balance importance of the non-speech governmental interest v. harm to free speech.  Non-Speech: Deterioration of neighborhood, Congestion of sidewalks, Litter, etc.  Consider rx adequate alternatives to advance gov interest w/o hurting speech.  This is what ―narrowly tailored‖ requires  Reasonable other Channel of communications/ ample alternative channels for communication  Linmark Assoc. v. Willingboro: city law banned ―for sale‖ signs on residential property (to stop ―white flight‖ panics); SC said CN (even though only ―for sale‖ banned), but failed test b/c hurt free speech too much (how else do you sell your house effectively)  Ladue v. Gilleo: ordinance said no signs but ―for sale‖ signs... SC said CN. Struck down law as violating the balancing test (might be able to regulate size of sign, but NOT restrict totally)  Nature of the forum  Important part of the balancing test is the nature of the forum and what society traditionally accepted.  Was the speech consistent with the forum?  Brown: silent protest in public library to protest segregation... arrested for trespass; (silent) speech was protected b/c it was consistent with the forum  Traditional Public Forums = Intermediate Test  Test: if CN = Balancing (if CB = CSI see above)  Ex: Streets, Sidewalks, Public Parks  Traditionally always been places of free speech. Given a lot of weight in balancing test.  Designated Public Forums = Intermediate Test  Test: Treated same as traditional public forums  Ex: Town Squares, University of MI allowed student groups to use classrooms when classes were not in session. Ct said empty classes were designated public forums…the university did not have to dedicate the rooms, but once they did, it is a desiggaed public forum.  Not traditional place of free speech, but through custom, practice, and habit in a given community.  These have taken the role of a public forum. 7. Sinner - 42 - 8/12/2008  Limited Public Forums = Rx Basis Test  Test: CN = Rx Basis test (if CB = CSI see above)  Regulations of non public fourum (law restricting FS) must be rx.  Speech is less protected.  Regular level of speech is always going to be inconsistent/incompatible w/ the principal function of these places.  Ex: Airports; Post Offices; Milliary Bases, Gov‘t Offices, Public School Teacher Mailboxes  Internat’l Society for Krishna Consciousness v. Lee: Krishnas gave away material at airport. Banned. SC: applied Rx Basis Test. Ban on the sale of goods is rx related. BUT, ban on giving material away not rx related to the intended use of the airport.  Forbes v Arkansas – there is a gov owned television station. Broadcasters have same FS rts as all others and they can choose who they want on. The station sponsored a debate, and they excluded Forbes b/c he was not a ―legit‖ candidate. He asserted that this was a public forum, and his exclusion was a content based exclusion which would get the CSI.  Ct said not content based (not liberal or conservative) but neutral b/c wasn‘t legit candidate  Next, it was non-public forum; limited forumrx basis test. Excluding candidates who are marginal in possibility of winning is rx as a means of covering public issues and having enough time for legit candidates to get their point across.  Aderly v. Fl – civil rights protestors go onto the property of a jail b/c some of their friends are jailed, but it was a good-natured protest. But the jail, out of security concerns, asked them to leave, which they did not, so they were arrested.  This is content neutral. Once that is established, then consider the place, here a jail, which is inappropriate for full FS exercise. Apply Rx Basis.  An appropriate place for protest is the capital definitely b/c that is where laws are made. In jails, there are special security concerns that don‘t usually exist elsewhere.  Protests in military bases: but for the sign that says military bases, it looks like a normal town. But, the concern for security is different b/c the nature of the forum is an important part of balancing process, here it is a military base.  When Apply Limited PF rather than Designated PF? Apply a Limited PF when the nature of the use is normally incompatible with the normal full range of Free Speech. (ex., Post Offices, Govt Offices) Schneider v. NJ: Law said no distribution of leaflets b/c of concern for litter. This is Content Neutral b/c regulates ALL leaflets. So test is intermediate test which  Sinner - 43 - 8/12/2008 b. considers all rx adequate alternatives. Ct said there are rx adequate alternatives, such as prosecute the person who drops the leaflet, not the person who hands it out.  Vincent v. LA County: Ban on ALL billboards on telephone and telegraph poles. The interest? Unsightly litter. In applying intermediate test, the ct upheld that law b/c there were no rx adequate alternatives. Regulation of Protest at Abortion Clinics & Importance of Distance  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 (gov interest)  but did not pass as to the private entrances in the back – no legit interest in protecting the back  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 during operations  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  ban on offensive images observable from the abortion clinic  disturbing photographs of fetus  graphic offensive images  content based  purpose is so that does not offend people  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—speech in public areas requires you to be thick-skinned.  protestors cannot approach someone within 300 feet of clinic  content neutral  Fairly restrictive – does it pass?  Too restrictive: hurts speech too much b/c it is the distance of a football field. Ct struck law down.  Distances can be important – BALANCING IS KEY!!!  protestors cannot approach someone within 15 feet of the person—protester required to move away.  ct struck down.  no approaching w/in 8 feet of women approaching the clinic when w/in 100 feet of the clinic—just can’t approach, but don’t have to move away if women walks right by them. .  ct said 100 feet was just right. Really 8 feet is key in this case b/c you can still talk w/ this person or they can still read your sign, so it doesn‘t hurt speech that much.  Boos v. Berry: DC had a regulation of speech in front of foreign embassy‘s with two distinct parts  No signs w/in 100ft of foreign embassy holding the foreign country up to public ridicule  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—interest in protecting reputation or hospitality as a host did not outweigh the regulation on free speech.  No picketing w/in 100 ft of foreign embassies Sinner - 44 - 8/12/2008 c. b) no signs within 100 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 100 feet away (50 ft is probably better). The harm to free speech is not significant and is not outweighed by the important government interest.  Compare – Augusta Nat’l: protestors had to be across the street to protest that women couldn‘t be let in, as opposed to a more visible place. This was a time/place/manner regulation and was eventually found to be wrong to move them across the street. Government as Speaker  Rule: fed gov is providing funds and once you accept these funds, you become gov as speaker and gov can regulate as it wants to (normal rules don‘t apply) b/c Gov has free speech rights just like an individual does  FS doesn‘t require that gov be neutral in point of view  Gov as speaker can say whatever they want and decide whatever opposition views it wants to have  Rust v. Sullivan – Reagan issued an exec order: planned parenthood groups that rec‘d fed funds, could not provide any info at all involving abortion: no pamphlets, couldn‘t speak of it.  Challenged as violation of FR of privacy: Undue burden  held regulation of fundingRB; law encourages full term pregnancies  And challenged as FS of employees b/c can‘t say anything about abortion  it would be FS violation if the law regulated priv individuals. But here, the law regulates people receiving fed fundsso they are subject to the restrictions the gov puts on their speech, b/c the gov is the speaker: can‘t take our money unless you provide our message.  National Endowment for the arts v Finly - performance artist was disqualified for getting funds from the endowment fund. Congress adopted a rule that prevented sponsoring indecent speech (some is protected by FS). Law challenged by artist  art was covering herself w/ chocolate…  USSC: Gov is funding it, so they can choose b/c gov is the speaker  Exception: Case – laws restricting fed funding for legal services attorney. One of these laws restricted the kinds of arguments that could be brought against the new welfare reform package: fed funded legal services attorneys could not challenge the const of these programs; they could challenge other aspects of the program.  Ct said there are gov funding legal servicesgov as speaker; but precedent cases don‘t apply b/c:  the role of the attorney, even the fed funded attorney is to rep the client  the attorney has the duty to say what is needed to rep the client  Gov didn‘t ban all welfare cases, but rather the gov regulated only ½ the message: challenge them, just not raise const issues inconsistent w/ duties of a lawyer, which is to raise all issues for your client  Public school grounds  Ct has allowed gov to reg FS on public school grounds in different ways than they regulate FS elsewhere  public school = schools that gov req‘s kids to go to  only public elementary and high schools  Sinner - 45 - 8/12/2008 d.  not public state universities Since gov req‘s kids to go to public schools, it has obligation to protect kids  Gov can regulate FS, if rx related to prevention of breaking of laws or school rules  Case - So the principal could sensor a high school newspaper which had articles about pregnant high school students. Principal was afraid that one might be identified in a defamatory way, so he banned it. Another article, had no names, but enough detail for people to figure out who they were.  Ct said the concern for privacy rx related to legit ed concerns  Case – a rep of a candidate of student body office of high school gave a campaign speech in auditorium that included sexual innuendo material; he was punished for speech that is protected everywhere …doesn‘t even rise to the level of profanity or indecency.  Held: punishment of student was rx related to legit edu concerns  Combo of Gov Speaker and FS on public school grounds  Certain books were removed from public school library  Ct could have said that gov is buying books, so could add and remove as it seems fit (gov as speaker argument) .  But ct said that once the gov purchases them, then they can‘t be removed for ideological reasons, but they can be removed for pedagogical reasons:  Pedagogical: inconsistent w/ school‘s curriculumcan be removed  Ideological: inconsistent w/ school‘s political  can‘t be removed  Gov Speaker w/ Public Libraries  There was a requirement that public libraries receiving fed funds must have filtering equipment that deletes sexual speech.  USSC: upheld the law: gov as speaker & protection of kids.  fed gov is providing funds and once you accept these funds, you become gov as speaker and gov can regulate it as it wants to (normal rules don‘t apply) Free Speech Limits on Government Employees:  Statements critical of their employer (related to work)  can be dismissed.  If limited to matters of public interest  they have normal speech rights.  Assistant was unhappy with her boss (DA), she circulated a critical letter re: boss, and was fired. Ct said she looses, no protection for criticism of in office employer  Dispatcher for PO station said she hoped they kill the pres next time they try, court says free speech protected b/c matter of public interest  Hatch Act: restricts the right of gov employees to be engaged in Political activities  Can‘t be actively involved in leadership to support political candidates  Restricts political activity of gov employee for purpose of preventing undue influence  Ct struck down congressional law preventing gov employees from being paid for writing speeches for officials. Concern for corruption  but struck.  Political Patronage: when 1 political party is replaced by another, the wining part threw out people who were not members of the party, and hire people from his own party  Sinner - 46 - 8/12/2008 e. f. Held: violates free speech rights to be compelled to be part of a political party to hold a gov job UNLESS the job was a policy oriented job where it is important inherently in the job to be in a political party Can Be Content Neutral Even If Consideration of Content  TEST: If reg is CB (or some degree of content), but Message or Viewpoint Neutral, some consideration of content is allowed if Content directly relates to the Non-Speech govt interest.  TEST: Intermediate Central Hudson Balancing Test  Young v. American Mini Theatres: some consideration of content and still balance. Facts: Detroit trying to bring up neighborhood. Reg said could not have adult theatre within 500 ft of residential uses and can‘t have within 100 ft of other regulated buildings. SC: ―primarily‖ CN (but it‘s not...) b/c no consideration of message/ viewpoint and the content that is considered at directly relates to nonspeech gov‘t interest (neighborhood)  Young & Renton v. Playtime Theatre: There was some consideration of content, but it was limited b/c not pro v. con., just adult v. family theatres. The consideration of content directly related to the nonspeech gov‘t interest of the deterioration of neighborhoods.  BUT Consolidated Edison Co. of NY v. Public Service Commission: Law tried to regulate inserts in bills by saying no inserts involving matters of public controversy. Got CSI b/c the consideration did not relate to a nonspeech gov‘t interest Same as Bdcast; but different in that reg of Bdcast is content based somewhat, but Bdcast special b/c pervasive.  2. 3. Content Based Regulations = Appropriate Strict Test (from list above) APPROACH a. 1. Determine whether Content Neutral OR Content Based  Preference for the message or view point?  Yes = Content Based  One viewpoint over another viewpoint  Preference for one group over another group  Preference for one speaker over another speaker  No = Content Neutral  Gov regulations that are unrelated to the content of speech  Is there a non-speech gov interest (e.g. litter, congestion, noise)?  If law directly relates to non-speech interests there better chance of neutrality.  Examples  Chicago v. Mosely  Key case in this area—Illustrates the line b/w content based and content neutral.  Law said no picketing near a school house, except for labor picketing. Gov concern was peace and quiet and protecting classroom atmosphere.  Content Neutral or Content Based?  Content Based b/c there is an exception for labor picketing. Basically Chicago was banning civil rights picketing. This must be justified by Strict Scrutiny, which modernly we call the CSI Test.  Anytime you see ―exceptions‖ it is probably content based. Sinner - 47 - 8/12/2008   The way you know that it is content based is…no indication that labor picketing is less likely to be interrupting than civil rights picketing. They are both disruptive. Bainard v. Rockford: Law that prevents picketing in general near a school house = Neutral law. 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.  F. 2 Special Problems = (1) Void for Vagueness and Overbreadth; (2) Prior Restraints 1. Generally: These are both content based and content neutral regulations. a. Vague and overbroad laws inherently chill speech. 2. (1) Void for Vagueness and Overbreadth a. Use When: Your client is engaged in conduct NOT protected by the 1 st A, or if you don‘t know if client is protected. If your client is protected by the 1 st A, you just need to say this. b. Vagueness  Laws that lack rx ascertainable standards by which a person can guide their conduct are void for vagueness.  Vagueness means there are no rx ascertainable standards.  The standard is very low though, so a court almost never finds violation for vagueness.  Court allows law to be as vague as necessary to address the problem. So for most part ignore vagueness aspect, and don‘t fall into trap of saying something is vague.  Vagueness is a PDP issue, in that DP clause requires criminal laws to give notice as to what is criminal. Law making something criminal must indicate what is criminal, and there must be rxbly ascertainable standards to know if one is breaking the law or now.  NOTE: Vague laws are inherently overbroad, but overbroad laws are not necessarily vague. c. Overbreadth (KEY)  Law reaches both protected/legal speech, and unprotected/illegal speech.  Ex: Law prevents porn, but also prevents other legal sexual speech.  Good key for litigators who have bad facts and bad clients b/c get to litigate the law on its face and how it might be applied.  Do NOT argue overbreadth if client is engaged in legally protected speech. It is unnecessary!  Analysis– 2 Requirements  1. Identify why your client’s activity is not or may not be protected by the 1st A.  This means that the law must restrict significantly more speech than the Constitution allows to be controlled.  2. Explain why it is overbroad and reaches protected speech.  Show that there is a substantial possibility that the law might be applied to reach protected activity.  Key is to attack the law as it would be applied to others even though your client may have engaged in activity not protected by 1st A. Sinner - 48 - 8/12/2008 3. Coates v. Cincy (all time favorite): Law says that people can‘t hang out on sidewalk and behave in an ―annoying fashion.‖ Ignore the vague part of it (assume that these people are spitting on other people, which is not protected by the 1 st A and is clearly annoying). The challenge of the law would be on its face; NOT how it might apply to the people who are spitting, but how it might be applied to others. For example, the law might reach people: talking too loud, looking ugly, street ministers, insistently distributing leaflets, etc. THUS, b/c there is a substantial possibility that the law might be applied to reach protected activity (e.g. street preaching, etc.) the spitters get to escape their bad facts and litigate the law on its face and how it might be applied to deem it void b/c it is substantially overbroad.  So you would say what person is doing is not protected by First Amend., but because law is overbroad the person gets to litigate the law as it might be applied to others (who are doing First Amend. protected acts). You don‘t have to challenge law as it‘s applied to you, but you get to challenge law as might be applied to other, so the magic of the Overbreadth Doctrine is that you can get rid of your bad facts, and use the good facts of others.  Case: City had ban on public performances in city limits. Law challenged by an adult bookstore, where public performance consisted of a nude person in a glass box, booths where pay quarters for nude dancing. Court didn‘t have to decide whether a nude in a glass box was expressive dancing protected by 1st A b/c the nude in box got to litigate law as it might be applied to other public performances. This law was overbroad b/c it would prevent a Shakespeare performance.  Look for fact pattern where somebody engaged in an activity related to speech not protected by 1st A, but law reaches not only that activity, but activity protected by First Amend. You say, the person is engaged in speech not protected by First, because… , but the person still walks, because the law is overbroad, and reaches activity that would be protected. (This is an exception to third party principles generally).  Case: Client is publishing hard core porn, that is not protected by First Amend. Law says, no sexually indecent speech, which is protected by First, hard core porn though is not. So you would say the person is engaged in speech that is not protected by the First Amend., but since the law regulates indecent speech, which is protected by the First Amend., then get to attack the law as it might be applied to the protected activity.  Broderick v. Oklahoma: Just says that it has to be ―substantial‖ overbreadth.  Brockett v. Spokane Arcades: Court struck down law regulating obscene video games because definition of what was obscene included the ―inciting lustful thoughts‖, which is vague and overbroad. (2) Prior Restraints a. RULE: Prior restraints are presumptively invalid absent some clear and present danger (i.e. imminent harm, not CPD test), or absent some CSI  (e.g. soldiers at sea and cannot be published b/c will endanger soldiers). CORRECT  Applies even w/ regard to law where subsequent punishment would be allowed (e.g. if you make a speech can go to jail or be subject to fine), or speech not protected by 1st A, or important gov interests. b. Use When: There is a restraint on speech prior to publication, and NOT subsequent punishment or self-censorship.  Restraint comes from a pre-publication approval process, and can be in the form of an injunction, OR license/permit scheme.  If the licensing or permit scheme is limited to content neutral regulations, then the ct will apply a balancing test, which usually results in the ct upholding a permit or licensing scheme.  Sinner - 49 - 8/12/2008 c. d. e. f. g. Balancing Test: The importance of the non-governmental speech interests must be balanced against the impact on free speech, taking into account whether there are rx adequate alterative avenues for the communication  Licensing schemes for use of the public forum are NOT presumptively invalid if the permit scheme is limited to non-speech concerns (e.g. litter, traffic, noise).  Ex: If a permit is required to use a park for protest and it is based upon content neutral factors like traffic, litter, and noise, then the ct will apply a balancing test and usually upholds the permit scheme.  Licensing schemes that allow the administrator of the permit scheme to consider content ARE presumptively invalid.  Ex: if the permit scheme says that you can use a public park for pro gov demonstrations, this is content based. 2 Random Things to Know  If you have valid licensing or permit that is applied in an invalid way, then you must obey it and try to appeal  If the permit scheme is valid (related to legitimate non speech concerns) then the overall test is balancing  If it is valid, you have to obey it and try to appeal  Ex: 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.  The logic for this is the respect for judicial order which the court requires  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.  If the scheme is invalid (it allows for consideration of content) you can ignore it even if properly applied  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) Particularly apply to content based regulations Near v. Minn.: Publication of something called the ―Saturday Press,‖ attacking the Jewish leaders of Minneapolis. Court enjoined its future publication. Defamatory speech was not at time protected by First Amend., rather subject to civil and criminal liability. But SC said prior restraint with judicial injunction is unconst. So even speech not protected by First, can’t be prohibited prior to publication. Court has one narrow exception. Court said speech prior to publication can’t be restrained unless necessary to prevent some clear and present danger, and no way to protect the safety of the troops except to enjoin the paper from publishing sailing date. Absent that type of imminent danger, prior restraints are not allowed.  The key with regard to prior restraints, is you have to make sure not to confuse prior constraints with subsequent punishment (self restraints out of fear of punishment…it’s no problem if people choose to restrain themselves). Pentagon Papers case: A Defense Dept. employee discovered documents that revealed that U.S. has lied about key aspects of the Vietnam War. Out of conscience, he submits these papers to the newspapers. Gov heard about pending publication and got a PR against the publication. Dan could go to jail and newspapers could too for publication of gov secrets.  Court said that the presumption is invalid  Cts said that after publication people could go to jail; it can‘t be restrained prior to publication Stewart case: Murder in small town; the judge to protect fair trial, enjoined newspapers from coming to court and publishing info about the trail.  Sinner - 50 - 8/12/2008 G. Ct said such a gag order is invalid unless there is no other way to protect fair trial of D.  And then you also have to show that the gag order would be successful in accomplishing its goals and here the court said this is a horrific murder in small town in Nebraska, and everybody knows facts anyway, so it wouldn‘t matter if there was gag order, so not allowed to impose one.  Here, other ways exist: sequestering jury, etc Commercial Speech = Central Hudson Test 1. Generally: Commercial speech subject to regulation when regular speech is NOT regulated (so CS is protected, but not as must as non-CS). a. Commercial Speech = Intermediate Test (like Craig v. Boren)  Elements 2-4 are essentially an Intermediate Test.  In applying the Central Hudson balancing test, most commercial speech regulations are struck down (only a few where upheld). b. Non-Commercial Speech = CSI Test 2. Commercial Speech – 2 Definitions a. Proposing a commercial transaction b. Speech that relates solely to the economic interests of the listener. 3. Limitation: Basically commercial speech is limited to advertising, i.e. commercials for the sale of products and services. a. Does not includes speech for profit, such as magazines, newspapers, theaters, movies or books. 4. Commercial Speech Approach – Central Hudson: A regulation on a commercial is a regulation on commercial speech. a. 4 Parts  1. Ad must involve lawful activity, and cannot be misleading  This part of test unique to comm speech—e.g., can‘t advert for pot and expect protection.  2. Must involve substantial gov interest (as opposed to a compelling interest)  3. Law must directly advance that gov interest  4. Hurts no more speech than is essential to advancing that gov interest (MOST IMPORTANT)  No greater than essential = narrowly tailored: Requires a rx fit b/w the law and the law‘s purpose.  Basically the same as saying no rx alternatives. 5. Commercial Speech Regulation Struck Down  Law preventing liquior store ads b/c didn‘t want store competing for prices.  Law banning ads of alcoholic content.  Lorillard: AG of Mass tried to regulate ads for all tobacco products. Ct struck regulations down.  W/ regards to Cigs: found that the federal warning on the box + state legislation pre-empted the states ability to regulate cig ads.  W/ regards to laws limiting ads for smokeless tobacco and cigars: not preempted by the litigation.  --what does this mean???  Law banning cigs w/in 1000 feet of a school. No outdoor ads of any type (no signs visible—even from inside, billboards, or indoor signs lower than 5 feet). Ct as to both all outdoor ads and indoor ads lower than 5 feet that the first two parts of the Central Hudson test were not satisfied. Conceded by all parties that there is a central governmental interest. So, they focus on 3 and 4. In #3, ct said that it hurts too much speech. The 1000 distance virtually prevents ads in all instances.  W/ regards to ban on ads lower than 5 feet—ct said not sure how that advances anything. Ct struck the law down—what keeps the kid from looking up if the ad is higher an 5 feet?  Sinner - 51 - 8/12/2008 6. Thompson v. Western State Medical Center: federal law banned ads for compounded drugs. FDA does allow use of compounded drugs based on doctor‘s prescription. But ads for the sale of these drugs is banned. Ct said this does NOT advance any substantial gov interest. These are regulated, so why does it help to not let the public know if them. 2 Exceptions Where Commercial Speech Regulation Upheld a. Posadas v. Tourism: Puerto Rico, US Territory, banned the ad of gambling to locals. Want to limit gambling to tourists. Ct upheld this and said that the interest in addressing the evils of gambling to locals justified that restriction. b. Broadcasting: ct upheld ban on ads for instate lotteries by radio and tv stations in states where the lottery was illegal. Here, NC radio station (NC has ban on state lotteries) wanted to advertise the VA state lottery. Station was right on the boarder. Under US rules, a radio station or tv station could not accept lottery ads. Ct upheld this law.  Compare – Greater New Orleans (1440): ct struck down a ban on the advertising of private casinos by states where private gambling was legal. If private gambling was ok in the state, then the gov can‘t regulate these ads. So there were so many exceptions  H. Symbolic Speech = O’Brian Test 1. (1) Spot a symbolic speech issue/expressive conduct (2) decide if the symbolic conduct is intended to be protected as speech (3) If it is supression, decide which test to apply, content based or neutral, (4) If neutral: Intermediate/O‘Brien, If based: CSI 2. Two issues a. When do you have symbolic speech; when is the expressive conduct treated as if it was speech b. If it is symbolic speech, then what test do you apply 3. When is expressive conduct treated as symbolic speech a. Test to determine when express conduct is symbolic speech:  Expressive conduct is closely akin (connected) to free speech  I.e. marching, walking  Imbued w/ a communicative aspect  Communicates a message that other people can understand  The key part of test  Dumping tea in Boston harbor to protest British taxation is a form of symbolic speech that Americans in the 1700‘s could understand, doing the same thing today to protest against taxes might not give rise to symbolic speech because it is likely that people would not understand why you are doing what you are doing or they might even misunderstand your message and think you are a disgruntled Lipton employee b. Spense v. Washington (best case) – a person put a peace symbol on the flag and flew the flag upside down in protest of V war. Charged w/ desecrating the flag. He argued the flag and piece symbol was symbolic speech, and Ct agreed.  Here, flag and piece symbol might lead to confusion: Mercedes symbol? But still communicates upset w/ something, and in Vietnam war context, its easy to figure out what. c. Hypo: Group of anti-abortion protestors marching down street, violating the no jwalking sign and crossing the red light, saying: ―if baby killers won‘t stop, neither will we.‖  they were j-walking as symbolic speech.  any type of expressive conduct can be symbolic speech d. Examples of symbolic speech: Nude dancing, picketing, carrying flags, black arm bands, gestures when traversing free ways (middle finger or shrugging to bad drivers)  city law: Nude dancers required to wear pasty, unrelated to suppresionist speech, so apply O‘Brien, held harm was minimal, e. If conduct is not symbolic speech, apply RB Sinner - 52 - 8/12/2008 4. If Symbolic Speech, what test to apply a. If content basedCSI  i.e. law: can‘t wear cross of Satan, but you can wear a cross of Christ b. If Content neutral  O’Brien Test (similar to intermediate test)  US v. O‘Brien – Fed law banned the destruction of draft card. During V war, many protests existed, including burning draft cards on TV in public places.  ct said burning of the draft card was symbolic speech = speech plus some conduct.  Ct announces 4 part test – First ask if there is symbolic speech  W/in gov power /Old: This part of test in theory should be limited to just fed laws. (on test write ) Regulations that gov is legitimately concerned about.  Congress has power to conduct war, and regulation of draft is pursuant to war powers.  State laws are not limited to enumerated powers  So this reg is related to war powers  NEW Meaning: But first part of test is changed to mean: there is some legitimate non-speech gov interest that government is trying to promote.  Is it unrelated to free expression of FS  Just a stmt as to why we are applying an intermediate test; that the law is content neutral.  Furthers a substantial or important gov‘t purpose  (purpose part of intermediate test)  It regulates/hurts no more speech than is essential to the purpose  (relationship part of intermediate test; narrowly tailored, considering rx alternatives)  Ultimately, O‘brien is just what we already know, but in a confusing manner.  Johson v. Texas - TX law: no converting of Am flag in way that offends others, court held content based restriction of FS  strict test, go through the various tests… found none of them satisfied so struck law down.  Ct held any regulation of desecrating the flag is neural will always get the intermediate test  McGoldrick‘s Objections to this case: Its not content neutral  Law already req;s draft card for 18 year olds; already punished you for violations of it. This law was passed after a few people burned the draft card, to prevent an effective message against the Vietnam war. But Ct accepts Congress‘s law that expressly says its neutral.  Assuming neutrality, why state it so poorly  The intermediate test gives it a high protection to FS, so it is applied poorly here, b/c too much harm to FS while not advancing gov interest enough.  Symbolic speech different than regular balance of harm vs gov interest b/c symbol itself could affect the balance; symbolic aspect can affect the balance: it will either create additional governmental interest (fire and congestion) or fewer governmental interest (silence and black arm bands)  Negative way  I.e. law: no burning of flag, might justify restricting it b/c of concern for fire  Positive way  i.e. silent protest in library: symbolic speech is more consistent than pure speech, and it threatens gov int less than pure speech  Hypo: law: can‘t wearing black armbands in schools. Sinner - 53 - 8/12/2008 5. ct accepts this as content neutral, held does not disrupt classroom so its ok to wear.  harm to FS vs gov interest  what is more consistent w/ FS  silent w/ black arm band or chanting in back, ―war is hell…‖ Permit Schemes for use of public forums a. Prior restraints are presumptively invalid, remember  ie. Licensing scheme, permits, or injunctions are prior restraints b. If the scheme itself does not allow consideration of content  intermediate test (content neutral – limits time, place, manner, not content)  If the permit scheme is a valid content neutral law (limits legitimate TPM concerns) even if the law is misapplied you have to obey the law or appeal.  if only allowed to consider liter, noise, congestion, first come first serve, then intermediate balancing mostly upheld permit scheme c. If the scheme allows any consideration of content or does not limit discretion presumption is invalid prior restraint (content based)  i.e. who can hold a parade or, if allowing a parade b/c you like the message, then the permit scheme is presumptively invalid.  If the permit scheme allows the administrator to consider content, the permit scheme can be ignored, you don‘t have to even ask for a permit, even if it is properly applied. BUT…  If a judicial injunction is issued, even based on a invalid law, the injunction has to be obeyed or appealed.  Symbolic Speech Definition: words not used, but substitutes (e.g., gestures, burning flags) Approach: 1) Recognize Conduct as Symbolic speech (Spense Test) (if not Symbolic speech, gets RB) a) Test to Determine whether Speech at all: Must have . . . (1) Symbolic acts that are closely akin to free speech (2) Having a communicative askect, AND (3) Capable of being understood by others. 2) Identify whether CN or CB a) If CN apply balancing (or O’Brien Test if want)  Symbolic aspects can affect the balance, but still a balancing test (i.e., library protest compatible with aims of library, Tinker: armbands in protest of Vietnam) b) If CB apply CSI test. TX v. Johnson: J was convicted of under TX flag desecration statute (content based) for burning the flag during a political protest; SC reversed conviction b/c statute failed CSI 1) Act was expressive conduct, so protected 2) Statute was aimed at suppression of expression, so not O‘Brien Eichman: Congress passed Fed. law making burning of flag illegal. Unconstitutional even though Congress tried to make it CN. CB reg failed b/c SC said flag statute is inherently content based so didn‘t get balancing. US v. O‘Brien: O was convicted under statute for burning his draft card. O claimed this violated his 1st amend rights; SC said no and upheld statute as constitutional b/c when speech and nonspeech elements are combined in the same course of conduct, a sufficiently important gov‘t interest in regulating the nonspeech element can justify incidental limitations on First Amend. Freedoms Normal 1st Amed test for Symbolic Speech: The regulation is unrelated to the suppression of free speech (if don‘t pass this part, must apply another test) If CN, then law must further a substantial or important non-speech govt interest Sinner - 54 - 8/12/2008 (purpose part of the test) Was there no rx adequate alternative way of advancing the interest other than by hurting free speech? If NO, pass this element The incidental restrictions are no greater than necessary. Barnes v. Glen Theatre: IN banned public nudity (not protected by first) included no nude dancing (but some public nudity that is expressive may be protected) Held: Found govt interst outweighed the harm to free speech. Upheld the law. I. J. Religious Speech = Wydmar v. Vincent Government as the Speaker If the govt is the referee of free speech generally, then apply regular regs., BUT RULE: IF the Govt is the speaker (through funding), speech does NOT have to be neutral. Govt can have a point of view. No requirement that the Govt be balanced with regards to presenting its point of view. Russ v. Sullivan: Regan‘s order prevented PP clinics that received Fed funds from mentioning abortion. Did it violate free speech rights of employees? HELD: No, the gov‘t is speaking and as speaker, it can refuse to mention abortions since funding. NEA v. Finley: amendment said NEA had to take into consideration standards of decency and respect for beliefs/ values of Amer. Public. Govt is funder, which is govt as speaker and can say what it wants. Libraries Should be neutral (no gov‘t is the speaker exception) Pico Case: Board had library remove books due to their content. Board claimed it was acting as a gov‘t speaker; SC rejected this b/c libraries are supposed to be neutral Qualified Govt. to make choices (Distinguish Against Buying Books and Removing Books—applies to broader speech than books): can make decision about books that buys for libs, but in removing books, are limits. Books removed for ideological perspective run afoul of 1st amend Books removed as inconsistent with educational purposes are OK.  Applied to Guliani case this year to broaden scope of Rule. Speech in Public Schools (only where govt can make attendance mandatory = elementary and high schools, not state colleges): Govt has greater ability to reg speech in public schools than it has elsewhere = has been restricted in elementary and high schools. Test: Speech can be regulated in Public Schools so long as their actions are Rx related to pedagogical concerns. (Rx Basis Test—less protection than balancing). Cases: Bethel v. Frasier: student nominating friend for student office in front of high school assembly. Suspended for making sexual references. SC: OK, rx related to concerns. Hazelwood: HS newspaper article was edited out b/c too easy to identify victims... SC said ok, even though would be protected anywhere else, but not in school. Free Speech Rights for Prisoners Rx Basis Test (similar to public schools): Govt regulation must be Rx Related to correctional concerns. Can‘t limit the right of prisoner to marry = too narrow Upheld mail regs as Rx related to correctional concerns (safety). Sinner - 55 - 8/12/2008 Free Speech Rights of Gov’t Employees Test: Govt employees have the free speech right to express their point of view about a Mater of Public Concern. But NO right to make comments inconsistent to the general atmosphere of their employment environment. Cases: Connick v. Myers: assistant DA was fired for circulating a questionnaire around office about boss that was embarrassing to him. SC: Private speech, not protected by 1st amendment McPherson Case: M worked for sheriff‘s office. When M got word that Regan had been shot, M said ―I hope next time they get him‖; M fired for statement, SC: Matter of Public Concern. Protected as free speech. can‘t regulate off-speech activities of gov‘t speech writers b/c no CSI Political Patronage: cannot be hired or fired based on political beliefs, unless the job itself refers to political aspects of the employer. Otherwise, violates freedom of association. Election Related Issues/Campaign Reform Issues: The SC’s rulings (make reform almost impossible b/c so many loopholes) Disclosure requirements: have been upheld as being consistent with 1st Exception: while most political parties/ candidates have to disclose, if group is so fringe that disclosure will hurt your membership, fund-raising, etc., you don’t have to disclose Limitations on Individ or Corporate Contribution to Candidate: usually limits on how much one entity/ person can give = upheld as being closely enough related to a concern for election corruption. Conditioning on spending on receipt of Federal funds: CAN LIMIT. if gov‘t wants to fund election, they can condition the receipt of funds with spending limits. Things found Unconstitutional by Court: States cannot control limits on Candidates own money spent. No limit to Amount that can be spent on particular issues. (soft money) Govt. cannot impose limitations on Unaffiliated Ads Media given NO extra protection under 1st amend: Under Gertz, media protected by at least neg standard Exception: Court struck down discriminatory taxes placed on media that aren’t part of a general taxation scheme. Confidential Sources: No Const right to keep sources confidential. HOWEVER, almost every state has framed statutory exception to the requirement that the press turn over confidential sources. XIII. TYPES OF ASSOCIATIONS A. XIV. FREE SPEECH COROLLARIES A. Freedom to Believe 1. Willy v. Maynars: Jehovah witnesses believed license plate slogan was an oath contrary to their religion, and cut it out. Got a ticket for modifying license plate. UUSC: violates their free speech rights to believe, as they want to believe. Freedom of free speech also includes not to be compelled to say what you believe. 2. State law required him to be apart o a marketing program, and assoc was engaged in generic ad‘s (i.e. CA raisins) Fruit grower in CA, required to fund this ad b/c he‘s a member of the assoc, claims they violated his freedom to believe, because he doesn‘t believe in the ad. Ct said no – he can‘t get $. Sinner - 56 - 8/12/2008 B. C. United food - generic state ad program for mushrooms, П did not want to pay for the ad through his membership dues, ct said it violated his FS b/c can‘t be forced to advocate something you don‘t believe in. Ct said: re above case, there was a comprehensive marketing program was in the above case, here the program was strictly for the genereic ad‘s, so they went too far. Freedom of Association 1. First determine if it is an expressive/intimate/social, then you can analyze the scenario under CSI or RB. 2. CSI speaking as an association gives like minded persons ability to express their point of view. Can‘t be taken away unless there is some CSI. 3. NAACP v. Alabama: Alabama required that all associations in Ala provide to the state sec of state a membership list and a list of all persons contributing money to the assoc. If the state learned you contribute, you can‘t get a state job. Ct held no CSI for the info. 4. NAACP v. Claiborne: law regulated picketing against civil rights demonstrations, court said doesn‘t satisfy CSI Limits on Assoc’ Rights: many state laws preclude assoc‘ in gender/race discrimin. 3. FREE SPEECH COROLLARIES: (free speech doesn’t refer to them, but necessarily encompasses these interests) Three Separate Categories of Corollaries (much overlapping): Freedom to Believe/Not to Speak (express point of view): to believe in your own mind what want to believe, w/o revealing to others. WV v. Barnette: School rules made it mandatory that students say pledge of allegiance. Jehovah‘s Witnesses sought to enjoin of enforcement of regulation against them; SC Held requirement invalid b/c no individ can be compelled to express whether they believe or don‘t believe in certain issues. Wooley v. Maynard: NH license plates had state motto: Live Free or Die. JW‘s, covered it up b/c of moral objections &convicted for obscuring plates; SC affirmed Barnette. Compulsory Speech/ Compulsory Association: Compulsory Speech: Miami Herald v. Turnillo: State law required in certain circs that had right to reply to certain comments said against you. Had been upheld with regard to TB and radio. SC: Rejected right to reply requirement as applied to newspapers. Newspapers have right to express point of view. (Now no more for TV either). PGE v. PUC: Inserts in utility bills case. Law treats envelope as public forum and PGE must allow other voices to use their envelope 4 times a year. SC: Struck down requirement b/c Can’t compel private entities to speak. Pruneyard: owner of shopping center had to allow use of it for speech and petitioning (even though they didn‘t want the message). SC: Was not compulsory speech. Upheld the requirement against the shopping center. Compulsory Association: a. Can be compelled to join associations b/c consistent with 1st amend. Can also be required to pay dues, BUT May have right to a portion of dues back if unrelated to activity. (Ex.: if union spends money unrelated to union activity, have right to give portion of dues back). Problem: defining what is union/bar related. RULE: if arguably related, then can be spent. If clearly not related then can get some dues back. Any expenditures that are germane to the purposes of the org. can be spent But if org. spends any portion of dues on ideological/ political agendas, they must have a Sinner - 57 - 8/12/2008 scheme to give money to protesters back. Univ. of WI Case: student activity fee charged. 20% went to various clubs/ orgs on campus that asked; SC said as long as money distributed on a CN basis, OK.(but part that maybe content based was remanded b/c if it was, it has to satisfy content based) Freedom of Association: part of fundamental right to privacy. Basically... There is freedom to Associate with those of like-minds in order to promote idea. Peaceful concerted action is protected by freedom of association (but not if violent) Can’t be taken away, UNLESS government has a CSI. NAACP v. AL: AL required that all associations turn over membership list including contributors; SC said CSI. NICE ISSUE: State Laws banning the Association of Private Organizations if they practice racial/gender Discrimination: Two categories of Assoc. Groups: (1) Expressive; and (2) Societal. Regulations of Expressive Associations must be justified by CSI = protected by 1st Regulations of Societal Associations get RB Problem: How to decide which type of Assoc in partic facts? Look at size, purpose, policies, selectivity, congeniality, etc. Roberts v. US Jaycees: Jaycees didn‘t admit women as ―regular‖ members. State law prevented gender discrim; SC said Jaycees have pro business point of view, which is Expressive, but has nothing to do with banning women, and for those purposes which are societal get RB level of review. Hurley: Group wanted to be in parade. Veteran‘s Council said no; SC said no b/c Parade was an Expressive Association and thus could exclude whomever they want. Sinner - 58 - 8/12/2008 XV. RELIGION A. Establishment Clause = Lemon Test B. Freedom to Believe/Freedom From Compelled Expression C. Freedom of Association XVI. THE ESTABLISHMENT CLAUSE 1. 2. ―A state shall make no law respecting an establishment of religion or prohibiting the free exercise thereof‖ Two issues: a. Establishment Clause ―a high & impregnable wall to separate church & st‖ i. Promotes notion of separation of church and state ii. Examples that reveal a blurred and indistinct line b/w church and state: 1. Church may provide bussing for kids who want to go to rel school 2. Free bus trip to a field trip that other public school would be providing too is not ok 3. Free books by church to rel school is ok 4. Free gloves is not OK iii. Thus, distinction b/w aid to rel and what is not allowed is a blurred line 1. one nation under God 2. on our money 3. Oath of Pres on bible 4. Swear to tell truth on bible before testimony 5. National holidays such as Christmas 6. Paid chaplains in prisons, state hospitals… iv. Hypo – fed gov set up a fund and if you propose a good plan for illegit kids, you will get funds. Catholic church promoted abstinence, and so they got fed funds. 1. doesn‘t violate v. Lemon Test – to survive a 1st am attack, the law must meet 3 elements 1. Principal purpose must be secular, not sectarian a. Secular = non religious but worldly concerns b. Sectarian = religious concerns i. i.e. no secular purpose in requiring prayer in schools c. do not consider conceivable purposes d. Law requiring teaching of creation and 10 Commandments: struck down, not secular, there is no worldly interest. e. Using Bible as literature: secular purpose, Upheld f. Law req’d using a paid Chaplin to lead prayer: Upheld, b/c of historical respect for religion. g. Religious displays on public property: allowed as long as there is a balance of other aspects of holiday, religion, etc… h. I.e. Aid to religious elementary and high schools: i. How to consider advancement of purpose: 1. Principal aid to education: a. One state gave a tax deduction for all edu expenses, because of the # of pub schools students most of the benefit went to pub schools, but the parents of the priv schools individually got more benefits. Ct upheld, 2. Aid must be in a form that is not likely to be misused into religious purposes a. Reimbursement for standardized testing ok, for only mult choice. (fear of extra credit for students who express religion) b. Remedial systems: ct allowed remedial reading, writing and arithmetic assistance but no psych counseling (fear of religion) Sinner - 59 - 8/12/2008 2. 3. 4. Aid to all schools more likely to be valid then if aid was just given to private schools. 4. Aid provided to kids and parents are more likely to be upheld then aid to the religious schools. a. If aid is to parents, in form of vouchers, then upheld b. School can have a release program to go off for religious training elsewhere - odd case 5. Ct allows gov aid to non religious part of Univ unless school is so pervasively religious that any aid advances religion Principal effect must neither advance nor inhibit religion a. Principal effect must be to advance secular, not sectarian i. Decide whether the principal effect is to advance religion too much. ii. Gov concerned about number of illegitimate births. C held any group can request the fed gov for funds to address the problem of illegitimate births. Catholics asked for the funds to promote the gov int (advancement of illegitimacy) not the advancement of Cath. Held OK. No excessive entanglement a. The program should not get aid that requires a lot of gov oversight to prevent misuse. b. law: Couldn‘t have a bar close to 500 ft of church, unless church approved. i. ct said excessive entanglement b/c they had veto rights c. If Gov provides aid to religious schools and the aid requires too much checking and oversight to make sure its not misused  Ex. Ent. i. State had provided remedial reading and writing w/teachers going into religious private schools: Ct said its secular in nature not too much entanglement. d. Ct said its ok for state to grant exemptions to church groups from tax: ct said it doesn‘t violate the Est. Clause to give tax exemptions to church groups along with other charity groups to avoid excessive ent. e. Woodmar - FS issue masquerading as a Est. Clause issue, univ said groups can use an empty univ classroom, so it‘s a pub forum, content neutral rules were allowed. Univ said all groups can use it except for religious groups, c said it‘s a FS issue and its content based regulation, must satisfy a CSI and the only CSI test that is possible is that the state HAS to make that distinction otherwise it would violate the est clause. Ct said, it doesn‘t violate the est clause for the state to have a content neutral rule in a public forum, so it doesn‘t violate the est clause to have a religious group be treated the same as other groups. Any time you see a law that says a religious group can . FS issue when you treat religosu speech differently from other speech, this is content based (neutral use is not a violation of the est clause so there is no CSI) (religious group can get the $$$. i. Religious student group banned from pub high school ii. St gave $ to all publications of approved student groups, except for religious groups, ct said that is a content based reg of speech that gets a CSI and the neutral granting of money doesn‘t violate the est. clause. iii. Ct allowed the different treatment of a person studying the bible v. other college students. (gave scholarship to non bible majors) FS issue, and CSI was est. clause. Problems w/ Lemon test 3. Sinner - 60 - 8/12/2008 b. c. not always applied & no body likes it i. we ignore what we want to, but periodically we use it Free exercise clause: Protects religious liberty/right to engage in rel activity i. Sherbert - Only get employment compensation if you are available for work M-S: Jews argued that Sat‘s are holy and violates free exercise of religion. No gov‘s intent, but it hurt free exercise of religion. It must be justified by some CSI look at rx ad alt. Req an exception for religious groups. 1. Yoder - Amish objected to going to school b/c of religion. Requirement of educ was a CSI – and there must be rx alt‘s and the rx alt is providing exceptions for peoples religious belief. a. Est clause issue: Gov treats Amish differently then other groups can they? Yup, ct said if you give some accommodation based on free exercise needs, it won‘t violate the est. clause. ii. Smith – law: no drug use by gov employees. Native Americans ingested paoti and fired from gov jobs. Argued that part of religious rituals. 1. Held, any regulation of a broad societal problem which also incidentally affects religions  test is not CSI. a. But ct doesn‘t say what the test is. It has cited RB and intermediate. McG thinks it is intermediate b. Law: regulated against killing of animals in general - not CSI c. There could be slight incidental affects on religion, but not intentional regulation on religion 2. But, if law is intentionally directed at a religion  CSI a. Babloo case – city is offended by cult that sacrifices live animals, so passes law against it. CSI test, and law fails. iii. State builds a logging road through Indian burial grounds, USSC said its ok, state can decide where it wants its logging road to go iv. Orthodox Jew Dr. wore yamaka, he was appeared at ct with it on and was charged for being out of uniform. USSC: punishing person for wearing yamaka does not violate the free exercise of religion. v. State law required SS# before you can receive welfare to prevent fraud, Native American said that giving his child a SS# was against his belief. Ct said the gov interest in preventing fraud was outweighed. Applicable to states via 14th a. RELIGION: ―A State Shall Make No Law Respecting An Establishment of Religion or Prohibiting the Free Exercise Thereof‖ PROHIBITION ON THE ESTABLISHMENT OF RELIGION: There MUST be a Separation of Church and State. Everson Case: NJ statute authorized reimbursement to parents for their children‘s public transportation bus fare to/ from school, even if the school was a Catholic parochial school. Challenged as violating the 1st amendment. Problem: 1) NJ CANNOT contribute tax raised funds to support a Catholic school b/c that would be a violation of establishment of religion clause. 2) NJ can‘t hamper the free exercise of religion either Held: Allow Breach of High Wall separating Church and State: The first doesn‘t prohibit NJ from spending tax money to pay bus fares of kids to Catholic schools as part of a general program that pays fares of kids attending other schools ELEMENTS: For a statute to NOT violate the Establishment Clause:  The Statute MUST have a Secular/Worldly, Non-Sectarian Purpose,  Its Primary Effect MUST be one that Neither Advances nor Inhibits Religion, AND  The Statute MUST NOT foster ―an Excessive Gov’t Entanglement with Religion.‖ Sinner - 61 - 8/12/2008 Elements Broken Down: Lemon v. Kurtzman: invalidated PA statute reimbursing non-public schools for salaries, textbooks, etc.= no direct grants to schools; SC developed Lemon test. To Survive a 1st Amend attack, Law must pass below three: FIRST: The Statute MUST have a Secular, Non-Sectarian Purpose Early cases: Were state compelled prayer, reading of Bible, posting of 10 commandments, teaching of evolution in schools Moments of silence in schools... looked at history and determined that purpose was to have prayer in schools... had it had a neutral purpose for moment of silence, not promoting prayer, it would have passed Non-denominational prayer before graduation violated this b/c promotion of religion in general (doesn‘t have to be promotion of one religion over the other) Easy cases b/c there is no secular purpose for those. Edwards v. Aguillard: LA‘s Creationism Act required that if a school chose to teach evolution, it also had to teach creationism, but neither was required; SC struck b/c failed first prong of Lemon, even though stated purpose was secular (to protect academic freedom), Court said that it was actually to further religious beliefs (if statute had been to promote science, etc, may have passed) Zorrack v. Claussen: school allowed ―release time‖ where students could have religious instruction off school property; SC that‘s ok (b/c not using public school property). EVEN THOUGH NO SECULAR PURPOSE = MG doesn’t like this and thinks it should have been struck under prong 1 This prong is not applied in state religious display cases (MG) Lynch v. Donelly: SC said displays are allowed if there is a balance of secular and religious aspects of Christmas Count of Allegheny v. ACLU: Rule: the prohibition against gov‘t endorsement of religion precludes government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred Test: ―What viewers may fairly understand to be the purpose of the display‖ Held: Simultaneous endorsement of Judaism and Christianity (which would be prohibited), but communicates a secular celebration (which is allowed) Lemon Exception: Historical Acceptance, NE could pay chaplain to have prayer in legislature b/c historically there was one SECOND: Its Primary Effect MUST be one that Neither Advances nor Inhibits Religion (i.e., must be secular primary effect). Aid to parents/ parochial school is for a secular purpose (education), but is the primary effect too much religion? Free books, transportation ok Free globe is not ok (all luxuries are bad) Can reimburse private schools for giving standardized multiple choice tests (but not essays) Can reimburse for eyes/ears tests, but not psychological counseling Aid to colleges: dHigher education CAN be funded if the institution is open to everyone, IF it is not too pervasively religious. Roemer v. Board: MD statute allowed some money to go to private colleges, if used for nonsectarian purposes; upheld- passed Lemon... key is neutrality: if available to all schools, it‘s ok that some goes to private schools Aid to Lower Schools Important whether aid is directed to the parent, child, or school: If given to aid child and they decide to pass it on to the school, the court is more likely to uphold giving directly to the parents and kids. Is the assistance on or off campus? Off campus release program were upheld. Sinner - 62 - 8/12/2008 Tax Exemption cases: Tax Deduction OK: State can give income tax deductions for amounts spent on tuition, textbooks, AND transport for both private and public schools Tax Exemption Unconst: Unconst to exempt religious publications from sales tax applicable to all periodicals b/c = subsidy, which = state sponsorship of beliefs. THREE: The Statute MUST NOT foster ―an Excessive Gov’t Entanglement with Religion.‖ If to keep statute from failing parts 1 and 2, too much oversight by gov‘t is required, it will fail under part 3. Ex Ent Case: no bars withing 200 ft, unless church permits. Church plays role in determining zoning. SC: that IS Excessive Entanglement. Most cases involve aid that is commonly misused, thus need govt oversight: Court has recently expressed greater tolerance for the risk of misuse for sectarian purposes. (e.g., if give computers to school for non secular purposes, will risk that they will be used in sectarian (religious) way). Aguilar: Public school teachers sent to teach part of private school curriculum. They were checked by supervisors to make sure that nothing improper was said (like the word ―God‖). SC said this constant supervision violated the entanglement prong. WATCH OUT: Free Speech will trump Establishment Clause (really Public Forum Cases) Approach to Widmer type issues: 1) Not Estab clause issue initially = Free speech 2) Neutral rules don’t violate the Estab Clause, therefore no CSI. Widmer v. Vincent: all student groups except religious groups could use university buildings for private meetings; SC said that classrooms were designated public forums. Therefore, normal rules apply. CB = CSI, CN = Balancing. CB reg = struck down law under Free Speech CSI test. Neutral use of pub facility does not violate the Estab clause (no laws respecting the establishment of religion), therefore does not put forth a CSI. [would be violation of Estab clause if allowed only religious groups] Capital Square: permits to use square were issued without regard to message. KKK denied use of square b/c city afraid it would look like promoting religion (violate sep of church and state); SC said no, free speech issue so failed under CSI. U of VA: any publications could get fund money except religious publications. SC said fund was designated pub forum. CB regs of fund get CSI. Since neutral laws don‘t violate estab clause, doesn‘t pass CSI test. XVII. FREE EXERCISE CLAUSE A. FREE EXERCISE OF RELIGION: Neither Congress nor State can prohibit the Free Exercise of Religion. Law Intending to Regulate/ Specifically Burdens Religious Belief = CSI (consider rx adequate alternatives) If there exists a CSI, but also Rx Adequate Alternatives: Law FAILS b/c Free Exercise Clause requires exception for religious groups. (Wisconsin Case) Even though SC said CSI Test, in application of CSI looks more like Balancing Test. (i.e., Interest of military outweighed the harm to the free exercise of religion). CASES: Sherbert v. Verner: state unemployment law said to be eligible for unemployment those who work for Co. must be available for work Mon-Sat. 7th day Adventist couldn‘t; SC said failed CSI b/c rx alternative is to make exception for religious groups. Wisconsin v. Oder: Amish wouldn‘t send kids to high school but PA law said must go to school until 16. Amish argued that would be contrary to their free exercise of religion. SC said state interest is a CSI, but Free Exercise Clause requires exception for religious groups. Church of the Lukumi v. Hialeah: Santeria church wanted to build in city. City enacted ordinance to prohibit animal sacrifices; SC said can‘t do that b/c violates Freedom of Religion since ordinances were directed only at that church and didn‘t survive CSI. Sinner - 63 - 8/12/2008 Laws of Generally Applicability that burdens religion = does NOT get CSI test Not decided which test is to be used, possibly: RB, or Balancing (MG thinks it is this = not much change) Smith Case = KEY Modern Case: S was fired from job b/c he ingested peyote, a controlled substance, for religious purposes, then was denied unemployment compensation; SC upheld the firing.  Don’t use CSI test on laws that are Neutral BUT burden religious exercise. Sinner - 64 - 8/12/2008