I. Due Process Clause Whether the law makes sense, a limitation on substantivew interest A. Rational Basis Test 1. Legitimate or permissible state end a) Anything the government has a right to be concerned about 2. the law passed must rationally relate to some legitimate or governmental end we don't care that another law might have been better as long as this one is rational using the RB test a) Williamson v. Lee Optical – law that did not allow optometry business in department store and have to have prescription on file to regrind lenses. Even though there were better ways the court say the legislature may have been trying to protect governmental interest in eye health and so it passes the RB test. We don't care what the actual motive is at all behind the law as long as we can find a reasonable motive 3. there are also due process limits on punitive damages a) how reprehensible the behavior of the tortfeasor is b) the disparity between the compensatory and the punitive damages (anything above single digits is going to concern us) anything above 4 to 1 is going to give us pause c) look to see what the civil penalties are for this kind of behavior II. The Contract Clause A. Stuff that states can't do 1. no state may pass bills of attainder – form of legislative punishment for punishing people often for acts that have already occurred 2. no state can pass expo facto laws : limited to criminal laws; laws that make it a crime after it was performed or changing punishment for it when punished (from life to death penalty for example) B. No impairment clause 1. Notice 2 things a) Limits only state (doesn't limit the federal government) b) It's limited to retroactive changes in the law – doesn't prevent the state from prospectively changing contrsactual terms or imposing limits on contractual terms; state changing contracts that already exist C. Public Purpose Balancing Test (3 part approach) 1. must be substantial impairment a) any law may impair in some way – more severe more likely to be in violation of k clause total destruction not required look to reasonable investment based expectations (1) if it's an area that’s been subject to extensive state regulation then expect state to continue to regulate in this area so no expectation there is not additional state regulation 2. if there is substantial impairment it must be justified by significant and legitimate public purpose a) look to see how important the governmental interest are and how much they hurt contractual right b) degree to which the state change contractual rights affect broad social interest more likely valid legitimate public purpose (not just affect narrow special interest) c) power not limited to emergency to temporary situations or if temporary might mitigate harshness 3. any changes in preexisting k rights must be based on reasonable conditions and appropriate to the public purpose III. Equal Protection deals with whether the classifications within the law make sense A. RB test – the classification must rationally relate to a legitimate governmental end 1. the end analysis – still have the same interest as in DP RB test a) case saying no ads for others on vehicles the governmental interest was still vehicular safety, same as it would have been under DP but looking at the classification between self and others 2. The relationship analysis (whether the classifications overall rationally relate) a) Rational distinction in the ads case is that ads for others tend to be more elaborate then the nondescript ads for self, also tend to be more distraction, and the legitimate reason that ban on ads for self hurts small businesses b) We tolerate laws that are both under and over inclusive for the sake of governmental ease and efficiency 3. you can frame most arguments as equal protection and due process but the question is what is the best argument B. Basic Approach to Rational Basis issue: 1. Spot rational basis issue – no justification for higher lvl of review; no fundamental rights (race, gender, etc); all left is rational basis test; ID it as due process or equal protection issue; overall restriction doesn't make sense (no gov issue; due process); law may make sense but classifications don’t (equal protection) a) what's crucial is applying rational basis test – then pick due process or equal protection (pick one and go w/it) b) state the law – if due process issue, then say law must rationally relate to gov ends. The classification must relate to legitimate governmental ends. c) add additional law as relevant – may be any conceivable justification (rational law) d) prof likes conclusions – this would rationally relate IV. The Taking Clause A. Any time the government takes propert have to consider the taking clause 1. if you decide there is no taking you still have a due process RB issue B. When is there a taking? 1. physical trespass where government enters or authorizes other people to enter (can be anything noise physical etc) 2. second is the leaving of no economically viable use a) 3. even if you don't have those you can undergo more complicated analysis a) the character b) the harm to economic impact c) and reasonable harm 4. retroactive zoning is not a defacto taking C. Mandated Access to Property 1. Exactions – conditions government exacts for any change of use (think coastal commission) a) Has to bear some essential nexus for the purpose of the law b) And rough proportionality to the harm caused by the change in the use D. Remedies 1. once the court found limitation on use to be compensable then look at remedies 2. the government doesn’t have to purchase the property they can just abandon the regulation but they have to pay compensation for the period of use limited V. Fundamental Rights (CSI) Can be viewed as due process or equal protection but that is not seen as cruicial what's crucial is using CSI test A. CSI test 1. looking for compelling end (unlike legitimate end) 2. the means chosen to advance that end must be narrowly tailored a) must consider reasonable adequate alternatives B. 3 fundamental Rights 1. right to privacy a) deals with free speech rights, includes right not to speak b) Birth control (1) Marriage single person c) Procreation decisions (1) Abortion and all other procreation decisions (a) Casey – instead of CSI the test is undue burdens. State's actions can't place an undue burden on female's right to choose. Close to CSI but not synonymous. After viability the government can impost any undue burdens but subject only to health of the mother over the fetus (b) Undue Burdens: (i) Waiver provisions are ok – the state can use it to try to convince the mother not to have an abortion (ii) Consent & notice provisions: law requiring spousal consent is unconstitutional – parental consent is constitutional provided there is a judicial bypass procedure (judge gives consent) (a) The judge must have authority to grant permission for the abortion based upon either of two standards if the judicial bypass procedure does not state it then the judicial bypass procedure is unconstitutional(must have BOTH) (i) 2 grounds are first that the minor is sufficiently mature to make her own decision (ii) second if it's determined that the minor is not sufficiently mature then the judge may grant the right to the abortion if it's in the best interest of the minor (iii) record keeping – consistently upheld them concerning race age etc (iv) Medical procedures – in all instance where the state was trying to regulate decisions for protecting the health of the female the court found there was no compelling state interest in the ban on the particular fetus (a) BUT to protect viable fetuses there were a few, regulation of late second term abortions to make sure that the abortion was not a 3rd term abortion (b) Requirement for all late second term abortions that there be a second doctor available in case the fetus terned out to be viable and the second doctor was to take all steps necessary to protect the life of the viable fetus (constitutional provided there was a life or health exception) (2) Any funding decisions involving abortion gets RB test (a) Not any funding involving the state just with abortion d) Child rearing (1) Moore v. City of Ease Cleveland – law that said only related people could live together from the same line. Grandmother wanted to have cousin living in house and the court said that it interferes with child rearing decisions and that there is no compelling state interest to justify (2) Michael H. v. Gerald D. – wife cheated and had child with neighbor then she moved in with him. Later reconciled and moved back in with the husband and the neighbor wanted his rights as father. The court said that husband presumed to be father and that the window of opportunity was lost. Didn't get CSI and not fundamental right in this case so only got RB test. (3) Troxel v. Granville – father commits suicide and the grandparents want visitation rights the law let the judge give that to them but it was thrown out because it didn't take the concerns of the mother into account the court has to consider the best interest of the PARENT and only then the best interests of the CHILD e) Right to marry (1) Zablocki v. Redhail – WI law that said if you had illegitimate child that was a ward of the state and there was outstanding child support you couldn't get married court said not all restrictions on the right to marry aren't ok just significant unreasonable ones (2) Currently supreme court likely to apply RB for gay marriage but don't know for sure and in the states it's based on state constitution f) Right to Die (1) There is no fundamental right to die 2. right to vote a) reapportionment (1) Federal elections the standard is nearly equal as practicable (a) Very strict test differences in population size of less then .6% have been found unconstitutional (2) State the rule is there must be substantial equality (a) Lower standards (b) Can include readjusting the districts along political lines although if it were so egregious it might violate equal protection (3) All voter districts must be apportioned based upon population ( 1 person = 1 vote) b) race based issues (1) race can't be used for redrawing district lines for either reason to reduce the voting power of blacks or to enhance it (2) court has said some use of race is allowed when used as synonym for political affiliation since African Americans vote 95% democrat c) voter qualification (1) poll taxes (a) CSI there is none and so they are unconstitutional (2) Durational residence (a) Durational residency long enough to make sure that you have an an accurate voters list is allowed (b) 50 days was allowed 1 year was not allowed (3) felons can be disqualified from voting (4) super majorities are ok 2/3rds majority the no votes count more than the yes votes and that's ok d) candidates rights to have name on ballot (1) rules for determining which candidates are listed must reasonably relate to permissible state ends (2) you can distinguish between major and minor parties and require the minor party to obtain signatures and get 1-2% of the previous vote and the like 3. right to travel interstate a) can't use commerce clause have to use equal protection argument b) need durational residency plus necessity of life or some other fundamental right to get CSI (1) welfare and medical care necessities of life c) Necessity of life by itself gets rational basis d) If you take child within state it's a misdemeanor and cross state lines it's a felony that's not right to travel, doesn't actually involve traveling it's durational and necessity of life e) Alternative to mention: can also be viewed as violation of privileges and immunities of the 14th amendment to the degree that those protect the right to travel interstate VI. Suspect Classifications A. Race 1. gets CSI test 2. public school segregation a) federal courts can only remedy de jure segregation not defacto segregation. De jure is segregation that is the result of law the government imposing (1) there were the obvious southern cases that said black and white kids couldn't go to school together (2) there was also a more northern type where school board made intentional decisions to have segregated schools even though the law didn't say it, if you can prove that was the purpose then it's de jure b) if race was used to segregate schools then race can be used as a remedy to desegregate schools. Important in affirmative action as well in that you could use race to fix the wrong c) the court has said that if there is a good faith effort on the part of school board and corrected as much of the segregation as is practicable then the federal courts lose their authority to do anything further 3. race can't be used as basis for preemptory challenge. 4. When the law has neutral classifications how you find sexist or racist intent: a) Disproportionate impact (as a starting point not enough by itself) b) Historical background -series of events one episode may not indicate background c) Sequence of events – series of things government done around period of time then that may be relevant d) Departures from procedural norm e) Departures from substantive law norms f) If you can show that a purpose of a law or amendment was to discriminate, not even the only purpose so long as it's principle purpose then it's per se invalid B. Gender 1. substantially relates to important governmental interest or be justified by exceedingly persuasive reasoning (is there a reasonable adequate alternative) (this is a two part test treat it that way althought courts tend to use the first part) a) City of LA v. Manhard: made women pay more into retirement but based on annuity tables and the fact that women live longer but the court said that wasn't ok because not all women live longer than every man. b) Michael M. : felony for male to have sex with female under 18 but not the other way around, the court upheld because they needed girl as witness and girl has risk of pregnancy so she doesn't need the dissuader of it being a felony. 2. Classifications dealing with pregnancy as a medical condition get RB remember that! This is dealing with benefits as it relates to pregnancy since that's a medical condition even though only women can get pregnant. 3. Gender can't be used as basis for preemptory challenge (court will require them to show non gender or race justification for dismissing juror) C. Classifications based on Age a) Strictly rational basis D. Affirmative Action 1. mid level test – must substantially relate to important governmental interest or the exceedingly persuasive justification (any reasonably adequate alternative) a) RB is weighed on one side and CSI is on the other this is a balancing of the two sides 2. in case of gender a) Calfiano v. Webster: gave women more retirement based on peak earning years and they said it was to make up for the lower wage that females received while that wasn't the case with all women it was true enough to pass the mid level test. b) Orr v. Orr: looks at the 2 parts to the test they say it's also making up for past discrimination in not making women ever pay alimony but men always paying it but they said a REASONABLE ADEQUATE ALTERNATIVE would be a case by case analysis by the judge 3. Race a) Ultimately gets the CSI test b) Race based affirmative action outside of education (in the workplace) (1) Purpose (a) Making up for past historical discrimination will not pass the CSI test (but does pass mid level) but we do know that race can be used to remedy race based discrimination as was the case in schools. (2) Advantage to minority: the more absolute the advantage the more likely it is unconstitutional (setting aside slots for minorities) (3) Disadvantage to majority persons (a) Opposite side of it how much majority person hurt (b) Court particularly concerned when people are fired to preserve affirmative action (c) Race based hiring is different than race based firing in case where race was allowed to be used because of discrimination there was provision that racial majority person of greater seniority would be fired first in order to maintain the balance the court didn't like that. (4) Overall flexibility of the program (a) The more flexible and individual the more likely to be upheld (b) Racial quotas are not allowed (c) 10% set aside program for construction to make up for past discrimination in construction and there was a waiver provision if a minority contractor couldn't be found, this past but one with 30% set aside and no waiver didn't pass E. Classifications based upon alienage 1. overall approach a) state and local laws get CSI b) if it's political function then it gets RB (1) police officers and probation officers (2) both involve high degree of personal responsibility and both involve high degree of individual discretion (3) state and local job AND high level of responsibility and discretion c) all federal laws have RB (special need of federal government to control immigration naturalization process) F. Classifications based upon Legitimacy 1. if the laws classifies fathers different from mothers then the normal gender test must be satisfied, must substantially relate or be exceedingly persuasive (reasonable adequate alternative) 2. most state laws will not pass the mid level test 3. you simply cannot exclude all fathers and treat them different from all mothers 4. a law that treats parent with custodial financial or personal interest different from someone who doesn't get rational basis level of review 5. if the law says parents who have no custodial connection or provide no financial support their consent is not needed 6. Lolly v. Lolly: law requiring court order recognizing the parentage before person could inherit by intestate cessesation during the life of the father and within 2 years of birth, found constitutional saying substantially related to state ends of ease of determining father and making sure the law reflects the desire of the father G. More Searching Rational Basis (only use this if a question matches the fact pattern) 1. look for laws that seems to be addressed at (1)hurting a group without much justification (2)(particularly politically powerless groups then that's when want to use more searching RB) a) more liberal cities adding sexual orientation banning discrimination of race and gender by private persons, court used more searching rational basis b) zoned to build group home unless it's for the mentally the court stuck down with more searching RB c) law stating children of illegal aliens can't attend public schools in Texas (typically illegal aliens not suspect class) court concludes irrational and just to hurt children (some people think free education is fundamental right) H. classifications based on Wealth 1. typically gets RB level of review 2. some concern over equal protection and due process as it applies to indigent person in those cases free blood tests can be applied or fee waivers for hearings 3. education beyond a minimal level is not a fundamental right so just because some school has more money than yours doesn't violate fundamental right and gets RB a) although under state constitutions that argument worked VII. Procedural Due Process any set of facts can give substantive and procedural due process, procedural due process starts with the government authorizing someone to take away your life liberty or property interest (can be anyone DMV, welfare, FCC, FAA) looking for case by case discretionary decisions in procedural due process usually requires that a hearing be before the thing at stake is terminated if there is an exigency if the deprivation doesn't occur first if there is some exigency then the deprivation can occur with the hearing afterwards ministerial decisions are treated as though legislative classifications so no PDP A. This doesn’t deal with judicial like taking that's substantive due process 1. liberty or property involved 2. if you have one of those two think of it as continuum of choices that are infinitely variable 3. This gets applied when there is some kind of judicial decisions or hearing be careful not to confuse with classifications a) Police officer files for bankruptcy fired because of concerns for corruption – it's RB because it's classification (1) If police chief said fired because deep debt threatens integrity of police force does count because there's a decisions being made b) Law saying if convicted of crime involving a gun you're kicked out (1) That's classification not procedural due process c) If judgment saying you're dangerous and kick you out of public housing that's a procedural due process issue 4. Entitlements: things the government doesn't have to give us but once they do that's a form of property once give it to us can't take it away on individualized basis without procedural due process a) But the government can still take it away from everyone 5. for Property interest you need something that makes it a property interest a) contract, state law b) if your job is subject to discretion of someone else then there is no property interest (1) if you're tenured track then there would be some level of due process required c) if state law creates something as property then it can't be taken away without procedural due process d) that or a contractual private agreement you can't look to the constitution because it isn't there e) Entitlements can create property interest (1) Free public schools (2) Welfare (3) Food stamps f) Can also have CL that creates property interest through custom 6. For liberty interest inherently protected by the constitution a) State law can create liberty interest but are protected by the constitution even if it doesn't mention it b) Constitution all by itself protects liberty interest as well c) Being institutionalized example (1) Level depends on crime, retarded, crazy d) Juveniles can't be institutionalized without procedural due process same as criminals except no juries or public trial e) Can move you from prison to prison but need PDP if move from prison to mental institution 7. reputation a) in some cases it can work but you need reputation harm and something else like government being the one that causes the harm (1) reporter on list as shoplifter getting fired from job even though he wasn't shoplifter there was no interest (2) interest when official posts picture to keep people from being served hurt reputation 8. IF you have a government job you have to have a full hearing FIRST then only if you've had the full hearing can you be terminated B. Factors in determining the level of due process 1. how important are the private interests a) expelled is more important than suspended b) put on leave versus fired 2. what is the danger of erroneous determinations if not a higher level of procedural due process 3. the important of governmental interest in not having a higher level of procedural due process a) so with suspension you could have quick informal hearing but for expulsion would mean the private cost is very high so need more due process C. presumptive PDP 1. factors a) something is made an issue (fitness or fault etc) b) then the result of that issue is presumed without a hearing c) hearing later 2. cases where PDP irrebuttably presumed (may not still be good law but look for this fact pattern) a) if in auto accident without insurance and law presumed you at fault and suspends license then you should have has a hearing if the issue is fault b) if you just lose your license because you don't have insurance like in CA then not PDP c) illegitimate father considered presumptively unfit and got hearing afterwards d) if issue is unfitness then should have hearing in advance VIII. State Action Requirement A. What you need 1. you need state action and a substantive violation 2. government employees acting in official capacity are official state actors in private capacity are not state actors B. If private actor subject to constitutional limits then you have a state action issue 1. State Action a) only by sifting facts and weighing circumstances can the conduct be attributed its true significance (1) one single fact may not be enough (leasing public space for meeting and the like) b) When government gives to private entity right to perform important governmental functions then the private entity subject to the amendments (1) Private entity running racially restrictive ballot to determine who would make it on the ballot court found state action (2) Private union excluding African Americans from being in the RR union c) Private entity acting as public municipality (1) Town owned by business kicking preacher off sidewalk, court initially found state action but today it is not d) private park (1) private park like public park (2) racially restrictive (3) state ran for a time (that's relevant) e) court enforcing racially restrictive covenant is state action but private compliance is not (1) can't give money either that's state action too 2. No State Action a) warehouses when you don't pay your rent can take your stuff and sell it without hearing there's no state action b) Olympic committee deciding how the Olympic name can be used is not state action c) no state action from NCAA since most of the people being regulated are private d) private entity running HS is state action e) you can call the police and have people removed who are demonstrating and that's not state action (1) important facts are: (a) involved private people who wanted to engage in racial discrimination and the state made them (b) others involved people who wanted to engage in racial discrimination and the state law was used to enforce their wishes f) public defender is NOT state action because appointed to oppose the government g) If government says make sure people are eligible for nursing and private entity violates PDP it's NOT state action because it was a choice of private nursing center h) Continuing education private highschool firing teachers without PDP by private entity NOT state action but expelling the students would be (1) Despite 99% of funding came from state i) Liquor license to racially restrictive lodge not state action IX. Congressional Power A. Private violations 1. congress does not have the power to punish private acts, they are limited to enumerated powers a) they can only reach state acts b) states can punish private acts 2. they CAN reach privileges and immunities a) sailing navigable waters b) federal citizenship c) protection while in custody of federal marshall d) petition for grievances e) travel interstate (1) KK harassing people in reconstructionist south passed federal law saying you couldn't do that to people traveling interstate 3. CAN use 13th amendment a) No person can hold any other person in involuntary servitude b) Also race discrimination that imposes badge of slavery (1) Disabilities commonly imposed upon slavery (a) Property rights (b) Right to enter into contracts (i) This is used fairly extensively even with schools denying entrance to black students (c) Employment rights (2) Majority persons can bring claims under these laws too if there is a badge of slavery (3) Access to restaurants and inns are NOT badges of slavery B. What Congress can do to the States 1. have to show that state acts are in violation of equal protection or due process a) congress limited to enumerated powers, power to protect the substantive provisions of the 13th 14th and 15th amendments b) can't change underlying substantive rights as in you can't change what the right is 2. Congress cannot change the substantive provisions but they can to a limited extent change the remedies that are available a) Voting case made it illegal to use literacy for voting which the court had found constitutional but they allowed it saying that the court wasn't being contradicted but rather banning unequal governmental services (1) Fairly convoluted reasoning b) Weren't allowed to use that argument when congress passed law that 18 year olds could vote in state elections the court said they would grow up to be voters but nice try 3. general rule is congress cannot increase the substantive level of protection a) exceptions are: (1) if in fact remedial change then you can do it (2) or way of preventing some other government violation (unequal governmental services) then they can do that too C. Summary: 2 very distinct powers a) congress cannot under the 14th amendment reach private acts if it's strictly due process congress cannot do it b) congress cannot lower constitutional rights but congress doesn't have enumerated power to increase rights either X. Free Speech A. Radical Political Speech 1. can't be punished unless clear and present danger 2. clear and present danger: a) words of advocacy b) directs to imminent lawless action (specific intent) c) likelihood of success 3. non party of a case can't be punished for statements made outside the court unless presents clear and present danger to administering justice which has never been found B. Vagueness and Over breadth 1. use this only as an alternative! 2. Vagueness a) you can look at the law hypothetically outside of your specific case b) law should be sufficiently clear that we as citizens know what's being made a crime 3. overbreadth a) defendant engages in unprotected speech b) city law banning live performances (1) nude shows hard core porn they get to litigate their right to put on hamlet or naked hamlet because the law overreaches C. Defamatory Speech 1. Prior restraints are presumptively invalid a) If you have clear and present danger such as protecting troops then you can have a restraint 2. Gag orders a) Prevents press from publishing incrimination information that would taint the jury pool b) Don't confuse prior restraints with subsequent penalties (1) Something that restricts prior not the threat of future penalty that leads to self restraint 3. Defamation – all we care about is whether it's defamation or what is alleged don't have to worry about the merits a) Public figures need constitutional malice (intentional falsehood or reckless disregard) reckless disregard had serious doubts as to the truth of the statements but made them anyway -subjective standard (1) Look for things like public position or access to the media in determining public figures and limited public figures (2) Recognizable among significant group of people (3) Involving public duty (which is anything) of public official or someone running for public office b) Private person in matter of public concern (not seeking limelight) then state can set standard as long as its negligence (1) If below intentional falsehood or reckless disregard then you are limited to actual damages (2) At CL you could get presumed damages (3) You have to invite public scrutiny in more direct way or inject yourself in matter of public controversy (holding press conference on something the public is interested in is not enough) c) Private person not involved in matter of public concern then CL strict liability and no limit on damages D. Privacy Torts 1. false light a) saying something false about someone that's not defamatory b) constitutional malice – intentional falsehood or reckless disregard 2. appropriation a) taking of likeness for commercial gain b) tort anyone can use to protect themselves c) news airing footage of guy getting shot out of cannon hurt his business d) news stories aren't commercial 3. intrusion on seclusion a) court attributes less significance to gathering of info than the publishing of info as it relates to free speech b) can bring actions against new reporters that follow the police 4. revealing private facts a) has to be highly offensive both to the private nature and lack of any legitimate news story b) shocks the conscience that such info would be revealed (1) identity of rape victim (didn't pass) (2) name of juvenile delinquent (3) identity of judge under investigation by judicial commission c) in all instance state law precluded revealing the information d) court said test is CSI in not revealing the facts (1) so might pass just haven't had something yet E. Sexually Explicit Speech 1. porn protected in privacy of your home a) can't buy it sell it ravel with it but if you get it and get it in your home then it's protected 2. entitled to high level of protection except when too graphic (hard core porn) a) prurient appeal of the average man (1) unnatural versus natural is an issue, has to appeal to unnatural curiosity (2) based on average reasonable adult not most susceptible members of society (a) look at average reasonable adult not kids b) must be patently offensive applying contemporary community standards (1) must be SPECIFIC what is patently offensive either the law or the judge (2) as a group can't go after anything but hard core porn c) it must be without serious literary artistic political or scientific value (LAPS) (1) key is without serious value 3. child porn is not protected anywhere (even home) a) cyber child porn can be protected (fake kids) 4. when evaluating look at whether it impacts the viewing habits of adults a) if its to protect kids but impacts adults then you have to apply the adult test F. Profane unless it's fighting words its protected speech 1. you have to use fighting words (words/statements which by very utterance inflict injury and would invite physical response if physically capable) 2. must involve face to face confrontation 3. the law has to be limited to fighting words G. Content Neutral (Time place and manner says nothing about the message) can be non public forum as well like in Linmark 1. basic approach: pick the one that looks the best otherwise use CSI 2. intermediate test: must substantially relate to important state interest a) reasonable adequate alternative forms of speech b) harm to free speech with governmental interest 3. also worded being narrowly tailored to serving a significant governmental end a) 15 foot floating barrier has been held unconstitutional 4. look at the nature of the place as well sidewalks streets and parks have always been used for free speech so they have to yield to free speech a) but if the nature of the place changes then the balance can change – entering jail etc b) non public or limited public gets rational basis (1) non public forum is one in which the full recognition of free speech rights is inconsistent with its use (other than that no help) (2) airports fit in there though (3) look for public areas with incompatible use H. Content Based – CSI I. Broadcast TV and radio 1. no indecent speech except during safe harbor hours of between 10 pm and 6am a) FCC can regulate even though it impact adults 2. gets intermediate test even though it's content based XI. Symbolic Speech A. Test if regulation content neutral (intermediate test) 1. it's unrelated to the suppression of free expression a) if it's related to free expression then apply one of the strict tests – clear and present danger or one of the others b) burning flag is strict test because inherently dissident 2. furthers important governmental interest 3. impact on free speech is no greater than what's essential to further the governmental interest B. content based and approach 1. look at whether or not its communicative and whether people will understand (is it expressive?) a) sufficiently imbued with communicative content to be treated as speech b) akin to speech c) communicates a specific message 2. people don't have to get it for it to be treated as pure speech 3. then is the regulation content based or content neutral a) balancing test can factor things in like burning flag during middle of fire season in which case you may not be able to do it because of governmental interest b) to be safe say it's within government power XII. Freedom of silence and Association A. You can't be compelled to say what you believe or don't believe B. Also includes joining with like minded individual to voice your opinion 1. need CSI to take it away a) can't demand membership lists from NAACP 2. 3 types of associations a) expressive associations – can't be hurt unless some CSI (1) if your probusiness then you wouldn't have to let communists in but have to let women in because societal b) societal in nature – nothing to do with expression don't know test but looks like RB c) intimate associations -not sure here either but looks like CSI 3. if the association your compelled to be a part of (BAR) and pay dues to if it spends dues in way unrelated to association you can get proportional amount of dues back a) if it's part of larger package you might not have much luck but if doing something for single purpose counter to beliefs of association then you might have something 4. 3rd parties? 5. government employees a) government employees have free speech and same rights as any one in matter of public interest (1) officer saying if someone goes after the president again he hopes they get them – that's a matter of public interest b) if they have bad things to say about their employment then they can be fired 6. Hatch act restricting rights of government employees to be engages in political activities – that's ok to prevent undue influence 7. can't be compelled to be part of political party when someone new comes into office unless policy oriented job whereby important doing the job that you be a member of the political party in power XIII. Commercial speech A. What it is 1. speech proposing a commercial transaction 2. alternative – related solely to economic interest of speaker and audience B. what it isn't 1. profit motive doesn't mean it's commercial – news paper theatre etc 2. paying for an ad is not commercial if you're soliciting people to help in some effort like civil rights C. Test 1. must concern a lawful activity and not be misleading a) if it's not unlawful or misleading then apply the rest of the test otherwise use traditional free speech stuff 2. whatever the restriction is it must involve substantial governmental interest a) if substantial go to 3rd 3. law must advance that substantial governmental interest 4. it must hurt no more commercial speech than is essential for advancing that governmental interest XIV. Free Speech and Public Schools A. RB test 1. can regulate so long as reasonably relate to legitimate pedagogical concerns B. doesn’t' apply to colleges, only the school that the government makes you go to C. Library stuff 1. they had the option not to buy the book but once they were purchased the court said they would only be removed for legitimate educational pedagogical purposes 2. couldn't be removed for ideological purposes XV. Government as Speaker A. Different from regulating speech 1. as a speaker the government can have a message a) Clinton encouraging pro choice for example 2. government as speaker can regulate speech however they wanted a) funding decision not to let public hospitals do abortions if they received government money 3. government can make funding decisions but not all kind of funding B. licensing schemes for use of public forum 1. administrator of licensing scheme must be limited to legitimate time place and manner concerns 2. if it allows admin. To consider content or doesn't expressly disallow it then its presumptively invalid 3. if you have that: a) even if misapplied you have to obey the law or appeal it b) if the scheme is bad then you can ignore it don't even have to ask for permit (1) can be ignored even if properly applied c) if you have invalid law which can be ignored and the government goes to judge and gets injunction issued based on invalid law you have to obey injunction XVI. Religion Clauses A. Establishment clause 1. prevents aid to religion generally as much as it prevents aid to a particular religion 2. Lemen Test a) Must be a secular non sectarian purpose (1) Some exceptions allowed to have chaplin since historically congress had one and could display x mas stuff as long as balance of other parts of x mas b) Primary effect must neither advance nor inhibit religion (1) Effect is secular non sectarian c) No excessive entanglement (1) Can't require constant oversight to prevent abuse (a) Giving veto right to church to prevent bar within 500 feet is excessive entanglement B. Free Exercise Clause 1. not sure what it is but not CSI a) if law involved general societal concern which incidentally impacts religious beliefs that test is not CSI (1) SS case where fraud was more important (2) Prevent soldier from wearing yamaka 2. if a law is passed to impact religious practice the test is CSI