Constitutional Law II Outline

					                                       CONSTITUTIONAL LAW II OUTLINE

   I. Economic Substantive Due Process Before 1937
         a. Freedom of K was a right protected by 5th & 14th . Govn’ c/interfere w/that freedom to serve a valid
            police purpose of protecting: public health, safety & morals
                 i. DP used to ensure laws served adequate purpose & not to ensure govnt followed proper
         b. Lochner No valid police purpose served setting max working hours for bakers so its violation of DP of
  II. Economic Sub DP after 1937
         a. West Coast Hotel v. Parrish – upheld min wage for women no interference w/ freedom to K b/c
            Constitution doesn’t mention freedom of K, it prohibits deprivation of liberty w/o DP

   I. Constitutional Bases for Fundamental Rights
          a. Sct has held that some liberties are so important that they are deemed to be “fundamental rights” &
             govn’t can’t infringe on them unless SS is met
          b. Rights such as the Pneumbral rights & voting free speech & freedom of religion have been protected
             under the DP clause of the 5th or the 14th or the EP clause of the 14th
                  i. Under either DP or EP ct must determine whether a claimed liberty is sufficiently important to
                      be regarded as fundamental even if not mentioned in the C
  II. Difference between DP & EP
          a. If a law denies the right to everyone then DP would be the best grounds for analysis but if a law
             denies a right to some while allowing it to others, the discrimination c/b challenged as offending EP OR
             the violation of the right c/b objected under the DP

   I. General: Individual fundamental rights that govn’t can’t infringe on
         a. SDP is when a person claims an un-enumerated right & claim that there has been a constitutional
              violation of that right
         b. Govnt infringes on a right if it demands that a person forgo a constitutional right in order to receive a
              govnt benefit
  II. Analysis
         a. Define the right
                  a. P defines it broadly & state will narrowly define the right
                  b. “Pneumbral Rights” (unenumerated) – Privacy
                             i. Marriage
                            ii. Unitary Family
                          iii. Care Custody & Control of kids for competent parents
                           iv. Contraceptives
                            v. Abortion
                           vi. Refusal of unwanted meds
                          vii. Sexual Conduct in the Home
         b. Put it in the Constitution
                   i. Always cite the 9th : It is used to provide a texual justification for the crt to protect
                      nontexual rights ie un-enumerated liberties. “the enumeration of certain rights in the
                      Constitution shall not be construed to disparage others retained by the people”
                           1. 5th for Feds : Liberty Interest protected by the 5th (1791)
                           2. 14th for States : Liberty Interest protected by the 14th (1868)

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          c. Decide It’s Weight
                 i.   Is the Fundamental right [enumerated] or a low level right
                ii.   2 rules determining what is fundamental:
                          a. DP requires a liberty interest at issue to be fundamental – the right must have been
                              Deeply Rooted in Nations History & Tradition
                                   i. Either what was happening in 1868 or 1791 ( saclia)
                                  ii. Evolving standards (Kennedy)
                          b. Is the right Implicit in the Concept of ordered Liberty w/o which the fabric of
                              society would come apart

          d. Apply Appropriate Test
                 i.  Strict Scrutiny: If a right is deemed fundamental govnt prevail only if it meets SS
                       3. Burden is on the State/Govnt to show that the Purpose behind the law is a Compelling
                           State Interest AND
                       4. Means are Narrowly Tailored to the purpose : that the law is necessary to achieve the
                           objective that is no less restrictive means through which to attain the goal
                ii.  Rational Basis: If the right isn’t fundamental, then govnt must only show a rational basis for
                     the infringement of the low level right
                       1. Challenger of the law has the burden os showing
                       2. Must show ends not Legitimate OR
                       3. Means not Rational

 III. Pneumbral Liberty Rights
         a. Marriage
                  i. Right to marry is a fundamental right for all individuals, it is one of the basic rights of men
                     fundamental to our very existence & survival
                 ii. 14th Amendment requires freedom of choice to marry not be restricted by racial discrimination
                     & decision to marry someone of another race can’t be infringed by the state Loving
         b. Unitary Family
                  i. Liberty in due process includes protection of family rights including extended family not just
                     parent & children. Govn’t can’t infringe on living arrangements of related people. Moore
                     [grandmom living with cousins]
                         1. In order to find infringement there must be direct & substantial interference
         c. Care Custody and Control of kids
                  i. Parents have a fundamental right to make decisions concerning the care, custody and control of
                     their children which is an interest deeply rooted in our nations history & tradition.
                 ii. Natural parents desire for & right to companionship, care & custody & management of his child
                     is an interest far more precious than any property right.
                         1. Govn’t can permanently terminate custody only if it meets the requirement for both
                              PDP & SDP
                                 a. Parents must be given notice & a hearing & govnt must prove that terminating
                                     custody is necessary to achieve a compelling goal

                 iii. Right of Unmarried Fathers
                          1. Both DP & EP violated by state terminating unwed fathers right w/o any showing of
                              unfitness Stanley
                                  a. States goal to protect kids from incompetent parents is leg & sub but goal not
                                     met where by separating kids from fit parent
                                  b. Mere biological link doesn’t merit equal protection

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                          2. An unmarried biological father who participates actively in kids life is not entitled to
                              DP if the child is result of adulterous relationship, there is no tradition for protecting
                              the fathers’ rights when the mother is married to someone else . Michael v Gerald
                                  a. Under state statue he c/h submitted biological test to establish parental rights
                                       & custody but didn’t
                 iv. Upbringing of children
                          1. CCC includes the rights of parent to make decisions as to the direction of their kids
                              education. [st law prohibits teaching foreign lang, struck down]
                          2. Right to teach children a foreign language is w/I the liberty interest protected under
                              the 14th. Foreign lang is part of our nations history & prohibiting it isn’t best way of
                              achieving goal of teaching American ideals. Meyer
                  v. Visitation
                          1. Parents have fundamental right to control upbringing of kids. Troxel
                          2. S statute invalid allowing visitation to anyone who petitions ct w/o a showing of
                              unfitness of parents
           d. Contraceptives
                   i. Right to Procreate is a fundamental right liberty interest subject to SS under 14 th & 5th Buck
                  ii. Right of privacy is a fundamental right but not a liberty interest. The right of privacy refers
                      to right of individual: whether marred or single to be free from unwarranted govnt intrusion
                      into matters fundamentally affecting a person decision whether to bear or beget a child
                       Griswold , Eisenstadt
                          1. Purchase & distribution of contraceptives protected
                          2. Law prohibited use & distribution of contraceptives by any person to prevent
                             contraception. This w/ allow govnt to intrude into married prsons decisions , held

         e. Abortion
         f. Refusal of unwanted Meds
         g. Sexual Conduct in Home
   I. General: Rights or entitlements that govnt can interfere with as long as its fair
  II. Threshold Questions
         a. State Action
         b. Intent – no negligence cases parading as constitutional
         c. Has the govn’t taken property or liberty to begin with
                  i. Look for 2 fact patterns
                         1. non-tenured employment
                         2. damage to reputation

 III. Check  the 3 basics
         a.   Notice
         b.   Hearing
         c.   Impartial Decision Maker
                   i. Missing one is a per se violation
           d. When & what kind of notice

  IV. Apply Eldridge Factors
         a. Importance of interest to individual (subjective test)
         b. Risk of erroneous deprivation
         c. Burden/ cost associated with new procedure

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   I. 14th “No state shall deny any person w/I its jurisdiction the equal protection of its laws
          a. Even though there is no EP clause that applies to the feds on its face, however the 5 th amendment DP
              clause is read to incorporate EP to the feds
  II. General: Govn’t can’t pick on certain members of a certain group just b/c they are part of that group
 III. Analysis
          a. Define the Class
          b. Is the class suspect or (Q/S) : where the law is targeting discrete & insular minorities
                    i. Immutable characteristic: a characteristic person was born with , its not fair to treat them
                       differently b/c they can’t change it & its not a characteristic that’s guiltless
                  ii. History of political powerlessness : and there is a history of law making that targets these
                       groups . Political departments (majority) are not supposed to use the law making process to
                       make laws that target discrete & insular minorities
                           1. States counterargument may b/that society has taken care of them ie mentally
          c. Apply appropriate test
                   i. Suspect Class = Strict scrutiny
                           1. Under SS a law is upheld it its necessary to achieve a compelling govnt interest
                                    a. Govnt has the burden of proof
                           2. If a suspect classification or a fundamental rights is involved SS applies law w/b struck
                               down unless the govnt proves it necessary to achieve a compelling interest
                           3. Where legislation or govnt action has discriminatory effect its not enough to trigger
                               SS or IS there must be intent to discriminate
                                    a. Either by facial discrimination – by terms draws distinction between classes
                                    b. Discriminatory application – on face neutral but when applied it applies
                                        differently according to classes usually based on traits like race or gender
                                    c. Discriminatory motive – neutral on face & in application but has dispropritionate
                                        impact on class – but must find that the law making body enacted for for
                                        disciminatoyr purpose

                   ii. Quasi Suspect = Intermediate scrutiny
                          1. Under IS a is upheld if the means are substantially related to an important govnt
                              purpose ( except for gender)
                                  a. Means don’t have to be necessary
                                  b. Gonvt has burden of proof

                 iii. Non-Suspect =Rational Basis
                           1. RB is used for all govnt action unless IS or SS applies
                           2. Under RB review, the law will be upheld if the means are rationally related to a
                               legitimate govnt purpose – regardless of govt purpose
                                   a. Legitimate govnt purpose: advances traditional police purpose like protecting
                                       health or safety or public morals
                                   b. Basically any purpose not forbidden by Constitution is ok
  IV. Classifications
          a. Suspect Classification
                    i. Race ( caucasion) any law that on its face draws racial classification almost always will be
                       struck down under SS
                   ii. Ethnicity ( more specific: Irish, German)

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                 iii. Alienage – (national origin, citizenship) – Exception to SS
                          1. Governmental Function Exception: non citizens can’t hold govnt jobs
                                  a. Only rational basis review is used for alienage classifications related to self
                                      govnt & the democratic process b/c it goes to heart of representative
                                      democracy ( directly involved in formulation, execution, or review ob broad
                                      public policy)
                                  b. Court has declared that state may deny aliens right to vote or hold political
                                      office or serve on juries, if they can show this exception applies the RB review
                                      will apply & state will always win
                                            i. Law upheld req citizenship for Os – they are integral part of self govnt
                                          ii. Law upheld req citizenship for elementary teachers – they are
                                              responsible for teaching youth democratic process
                        2. Congressional Action Exception – Art I sec 8
                                 a. Any law passed by congress regulating non citizens is subjected to rational
                                     basis review b/c its an enumerated power granted to congress under article 1
                                     section 8
                                           i. among these powers it he power to regulate the naturalization and
                                              regulation of immigration
                                          ii. enumerated powers , congress authority is plenary
                                                  1. courts won’t second guess congress when they have plenary
                                                      power to regulate the area
                        3. Undocumented Aliens – Rational basis Plus
                                 a. Un-emancipated kids of illegal parent get heightened RB review if state is to
                                     deny discrete group on innocent kids free public education denial must be based
                                     on some substantial state interest – they are still guarnteed DP under 5th even
                                     though they are non documented
          b. Quasi-Suspect Classifications
                 i. Gender – Intermediate Plus
                        1. Classifications based on gender govnt bears the burden to prove that it has an
                             exceedingly persuasive interest Virginia
                                 a. Intentional discrimination against women is invalid b/c govnt is unable to show
                                     exceedingly persuasive justification
                                 b. Govnt interest must be genuine & govn’t can’t rely on overbroad generalizations
                                     about males & females
                ii. Illegitimacy – interest has to be important
                        1. Intermediate scrutiny is applied in evaluating laws that discriminate against non-marital
                             children – b/c their status is determined by causes not w/I their control & it bears no
                             relation to the individuals ability to participate in & contribute to society -Doesn’t get
                             SS b/c “illegitimacy doesn’t carry an obvious badge”

                         2 Principles
                         2. Laws providing benefit to all marital children but not to non-marital children are
                            always unconstitutional
                                 a. Its unconstitutional to require non-marital child to establish paternity w/I six
                                     year of birth in order to seek support from his father, b/c the fin needs may
                                     not emerge until late r& b/c it didn’t offer the child a sufficient opportunity to
                                     present his or her own claims
                         3. Laws that provide a benefit to some non-marital children, while denying benefit to
                            other non-maritals are evaluated on a case by case basis under intermediate scrutiny
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           Non- Suspect Classification
                iii. All other Groups RB with a bite : even though could argue that certain groups s/b considered
                iv. To win under RB must claim one of 2 things that because of the means chosen:
                         1. the law is crazy or
                         2. the law is based on Animus- bear desire to harm a politically unpopular group
                                 a. Sexual Orientation
                                 b. Mental Retardation

   V. EP “As Applied” Attack
          a. When do you use it – When the law on its face is not discriminatory – its neutral on its face
                  i. Usually only comes up with Gender or race but could be illegitimacy, ethnicity & alienage but

          b. What must you prove
                i. Must prove that there is Disparate impact and
                      1. need to use statistics to show that the law has disproportionate impact on that group

                   ii. Intent – prove reason law was passed was for discriminatory purpose , prove it by showing that
                       there is:
                          1. No other plausible explanation: Casteneda, Gomillion
                          2. Selective Enforcement Yick Wo – neutral on its face but when applied it law requires
                               enforcement against Chinese Americans only
                          3. Historically BG
                          4. Sequence of Events
                          5. Departure from normal Procedure
                          6. Legislative history – irregular procedures
                          7. Testimony

          c.   If don’t have intent & disparate impact apply RB

  VI. Affirmative Action : Remedy -SS
         a. Employment
                  i. Compelling State Interest : Remedy your own history of past discrimination – as passive
                 ii. Narrowly Tailored Means : Careful review of applications or bids

          b. Higher Education
                  i. Compelling State Interest : Diversity in Higher ed
                        1. if arguing that progam is valid must be arguing that your interest is diversity in higher
                            education – this is compelling interest
                 ii. Narrowly Tailored Means : Individualized review to reach critical mass
                        1. which is number of min groups where minority groups don’t feel like a token
                                a. no quotas allowed , no outcome determinative standards
                                b. want individualized review of each application where race can be a plus nothing
                                    more allowed
                                c. Most typical thing where numbers or % are chosen
                                d. At least 2 seats set aside or % must be admitted- this is unacceptable

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        a. Why voting rights are dealt with under EP
                i. Fundamental right strand of EP = Voting
               ii. Do we have a fundamental right to vote in school board elections?
                      1. No
              iii. Do we have a Constitutional right to vote for governor?
                      1. No,but state could have this right
              iv. So there is not fundamental right to vote
                      1. Once state has decided to hold an election then you must count every vote equally , one
                          person one vote. It’s a right of equality not a substantive right to vote,
                              a. The right at issue is not that you have a right to vote but that that your vote
                                  has to count equally

           b. When right burdened is the right to vote the court will apply strict scrutiny w/o having to show
              suspect classification
                   i. when it comes to voting it doesn’t matter what the class is, it will automatically apply strict
                      scrutiny regardless of what the class is that is burdened
                          1. so the SS applies to any group
                          2. So state must show compelling interest and that the means are narrowly tailored
           B. Bolden
                  i. GR in voting cases apply SS but if there is an election at large then courts require showing of
                      intent & disparate impact before applying SS
                 ii. City eliminated districts & instead did elections at large ( on city basis) , result wiped out
                      districts so no longer had minority representation as before. By holding elections this way
                      minority votes are being diluted

           a.   Votings is EP issue not SDP because it right to have your vote count equally not right to vote
                     i. City counsel passes ordinanace where school district board is to tbe named by the mayor
                        rather than elected – this doen’st violate right of citizens to vote
                    ii. Only when franchize is grnated EP comes is and there is aright to vote
                   iii. Once franchise is granted any burden on the right to vote gets SS regardless of who the group
                        is that is being burdned \
                            1. so don’t’ have to id suspect class to get SS , you just get it
                            2. only exception is multi member districts – which means
                                     a. ex at large election of city counsel allegation minority vote is burden – here
                                        must show intent so its an as applied test
                   iv. If states decides not to hold an election it is ok

   I. First amendment prohibits congress from establishing a religion or interfering with the exercise of religion,
      abridiging the freedom of speech or press or interfering with the right of the people to assemble. These have
      been made applicable to the states via the 14th
  II. General
          a. Freedom of speech is not absolute
          b. Some categories are not protected because they don’t communicate ideas or aren’t worth protecting
          c. When govnt restricts speech outside of the few exceptions court applies SS

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 III. On the Speech Side Is the government banning it or moving it around?
         a. There are 3 possible defenses govnt can raise when banning speech- Their claim is that even though it
             is speech its not protected because its not worth protecting: Strict Scrutiny
                  i. Incitement ( Brandernberg) [ state usually losses b/c no advocacy or imminence]
                         1. In order for govt to criminalize advocacy of crime the advocacy must meet
                                 a. Must show that Speaker had specific intent (advocating) to cause imminent
                                     (now) ,Lawless (illegal) activity under circumstances where its reasonably likely
                                     that the lawless activity will occur
                                           i. audience reasonably likely to go along
                                          ii. the more sophisticated the speaker & less educated the audience more
                                              likely it will effect them
                         2. Note: there must be an existing law: such as a breach of peace ordinance or else person
                             can’t be prosecuted for a law that doesn’t exist
                                 a. Law didn’t differentiate b/w incitement to lawlessness & abstract advocacy it
                                     violated 14th “advocating crime… as a way to accomplish political reform of any
                                     group formed to teach doctrines of criminal syndicalism”. KKK rallied
                                     denouncing jews & calling for revenge on govnt Brandenberg

                  ii. Fighting Words (Chaplinsky) [ state loses b/c not directed to ind. & have words that lack
                          1. Fighting words are not protected b/c its not speech b/c don’t constitute expression
                              of ideas (Verbal equivalent of a swing)
                                  a. If it has any communicative value its not fighting words ex: your mother – has
                                      no meaning but its likely to cause a fight
                          2. In order not to protect the Words spoken m/b spoken w/ intent to cause a fight AND
                              cts require the words are directed at the individual
                                  a. M/B one on one invitation to fight
                                  b. Would a reasonable person under the circumstances respond to the violence
                          3. Note: persons conviction for FW may be overturned b/c it was impermissible content
                              based restriction on speech or the law prohibiting FW was too vague & overbroad

                  iii. Obscenity (Miller) – [st loses b/c not used in sexual way even though has sex meaning]
                          1. Less protected than other speech b/c the value of the message
                                  a. If it’s not sexual in nature – it’s not obscene
                                           i. i.e. all obscenities are pornographic but not all pornography is obscene
                                  b. GR: Govnt may not prohibit or punish speech just b/ others might find it
                                      offense ie profanity
                                           i. Fucking Draft” in that context it wasn’t used in a sexual way so its not
                                               obscene Cohen
                                                   1. no itch not used in sexual context – not obscene
                                                   2. not fighting words not directed to person
                                                   3. no incitement no one was aroused except for O

                          2. What does Obscene mean?
                               a. Obscene is material which deals with sex in a way that’s appealing to the
                                   prurient interest (having tendency to excite lustful thoughts)
                                        i. I know it when I see it

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                         3. Miller test for Obscenity: Govnt may regulate obscene material which
                                a. Depicts or describes sexual conduct as defined by State law
                                        i. Here Vagueness & overbreath w/b tested b/c Ordinance itself m/b
                                           obscene in order to describe what you can be arrested for, it if doesn’t
                                           specifically list it can’t be arrested for it

                                 b. Which would be found to appeal to the prurient interest by the avg person
                                    applying contemporary community standards
                                         i. Contemporary- obscenity - community (State) determines what it
                                            means NOT what it meant in 1791
                                 c. It portrays sexual conduct in a patently offensive way ( obvious way)
                                 d. And has no serious literary, artistic, political or scientific value
                                         i. Slaps test – government must demonstrate that the material…Taken as
                                            a whole (unless child porn) Lacks, Serious Literary, artistic, political, or
                                            scientific value
                                        ii. Words have 2 meanings
                                                1. Cognitive – content of the idea
                                                        a. Fuck the draft – has the same cognative meaning as I
                                                             oppose it
                                                2. Emotive – Refers to the degree to which you feel about
                                                        a. F bomb protected b/c it implies strength of your

          b. If govnt couldn’t burden speech then they can claim they are moving it around, Time, Place, Manner
             test[ not here, not now, not that way] - less than SS like Intermediate
                  i. Test
                         1. Must show that the regulation is Content Neutral, in order to regulate time, place &
                             manner of speech
                                 a. Content Neutral- unconcerned w/ the subject matter & viewpoint of the speech
                                 b. Content based –suppressing speech or imposing different burdens b/c of its
                                    content – SS
                         2. In order to regulate TPM govnt must have Significant (substantial?) govnt interest
                                 a. Traffic safety, noise control, personal privacy
                         3. Loosely applied Narrowly tailored means:
                                 a. Don’t need the best way to get the job done only a good way
                         4. Need Ample alternative channels (except porno)
                                 a. The law must leave open channels of communication ie other reasonable means
                                    of communicating the idea must be avaiabale
                 ii. Public Forums & Limited Public forums
                         1. Pubic forum - Public property that’s historically been open to speech related activities –
                             streets, sidewalks & public parks

                         2. Limited public forum - public property that hasn’t been open for speech related
                            ativitites but which govnt has opened on a permanent or limited basis by practice or
                                a. Govnt may regulate speech in these two forums w/ reasonable TPM restrictions

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                  iii. Non-public Forums
                          1. Govnt can regulate speech in areas other than above, in order to reserve the forum for
                             its intended use – not traditionally open
                                  a. If govnt opens it, it can also undesignated it however court will look to its
                                     content neutrality
                                  b. Regulation will be upheld if its
                                          i. Viewpoint neutral & reasonably related to a legitimate govnt purpose (
                                             only rationally related to legit govnt objective)

          c.   Last defense is govt is after conduct and not speech
                    i. Is the govnt targeting conduct rather than speech?
                           1. First ask whether the conduct has any expressive value at all, if not then its not 1st
                               amendment issue , however if some element of speech apply O’Brian
                                  a. argument would be although its clear that the person is trying to send a
                                       message, a reasonable person wouldn’t know what it is
                                           i. i.e. burning draft cards – expression of an idea
                           2. do we have to know what the message is or just that it’s a message – cts haven’t
                               addressed this

                   ii. O’Brian : when may govnt regulate conduct that communicates
                          1. Most conduct is regulable by govnt under the Commerce Clause or State power – so
                              long as its not expressive
                          2. In order to ban conduct the govnt must have an Important/ substantial GI ( are there
                              secondary effects that the government is addressing?)
                          3. GI is unrelated to suppression of speech ( If not, we’re outside O’Brian, and SS applies)
                          4. Means chosen place on speech a burden no greater than is essential ( Sounds like NT)
                                   a. Burning draft cards has communicative value so govnt will succed only if its
                                       meets the O brian test & avoid SS. O’Brian
                                            i. Important & substantial govnt interest to ban burning of cards –
                                               necessary & proper for govnt to raise armies & banning burning is a good
                                               way to efficiently raise armies
                                                   1. Govnt Motive will not matter so ct won’t strike down b/c of
                                   b. Burning of flag upheld – no incitement, not obscene not FW – held states
                                       interest of protecting peace its not important interest since point of law it to
                                       promote national unity & banning burning is not the best way to preserve
                                       national unity its counterproductive – SS applied Texas v Johnson

          d. Less Protected Speech
                 i. School Speech : Constitutional rights are not disgarded at the school house gates
                        1. Non –School Sponsored Speech : Tinker
                               a. School can regulate non-school sponsored speech if its disruptive:
                                        i. it materially & substantially interferes/ disruption with either school
                                           discipline or the educational functioning of the school OR
                                       ii. in absence of disturbance, I don’t know how the class can function with
                                           that expression in the classroom – usually its symbolic or pure speech
                                           like words on T-shirt
                               b. if this is the case then you can punish the kid & send them home
                                        i. not enough to claim unsubstantiated fear of disturbance

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                                 c.    Schools can’t ban non disruptive, passive expression of political viewpoints which
                                       don’t intrude on schools work or other students rights
                                            i. Ct upheld students wearing black armbands to protest Vietnam war –
                                               silent protest non disruptive Tinker

                                 d. Rational basis qualified: schools action must be rationally related to schools
                                    pedagogical interest ( related to teaching)
                                         i. Must frame the question by stating that you are trying to teach them
                                            something by prohibiting that speech
                                        ii. Crt held 1st protected ability of high school students to wear black
                                            armbands to protect the Vietnam war b/c it was a silent protest that
                                            didn’t disrupt education w/I the school Tinker

                          2. School Sponsored Speech – Rational basis with pedagogical interest
                                 a. Whether its school sponsored speech or not, must see where its being held is
                                    the school paying for it, is their name on it, is it part of a class
                                 b. If the publication or even occurs w/I the perimeter of school then it’s a school
                                    sponsored event
                                          i. Ex Setting – school nominations , where- in auditorium, speech made
                                             sexual innuendo – school punished kid : held this was a rational way to
                                             achieve a legitimate pedagogical interest - expression was sexual not
                                                 1. Pedagogical interest – holding of nominations is to teach
                                                      democracy Bethel
                   ii. Commercial Speech (for profit, not political)
                          1. Commercial speech gets protection under 1st amendment if the advertising
                             information/idea has beneficial value to the customer & if it is for legal
                             product/service & its not misleading
                          2. Commercial Speech: must have all 3
                                 a. Its an ad & refers to a specific product, speaker has an economic motivation
                                    for the speech Bolger
                          3. Central Hudson : Hybrind Intermediate Test : For commercial speech to be
                                 a. Commercial speech must concern a lawful activity and not be misleading
                                 b. To regulate it govnt must have Substantial interest : Paternalistic interest to
                                    protect public from misleading & illegal adv
                                 c. Means directly advance government objective must be least restrictive method
                                    needed to achieve the interest (NarrowlyTailored)
                                          i. Was the way of banning the best way to achieve the interest
                                         ii. During energy crisis banning all energy adv- held counterproductive
                                             can’t edu public on conservation Hudson
                 iii. Porn
                          1. Regulating Porn
                                 a. Porn even though doesn’t meet test for obscenity & is protected by 1st amen but
                                    its low value speech so gonvt can regulate it
                                 b. TMP test with A Twist
                                          i. The regulation must be content neutral ie unconcerned with the sub
                                             matter of speech
                                                 1. look to legistlative history
                                                 2. is ordinance facially neutral – purpose m/b unrelated to
                                                      suppression of ideas
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                                          ii. Govn’t significant interest: Govnt may ban porn to prevent its
                                              secondary effects rather than content ie keeping prostitution down,
                                              keeping kids away from exposure
                                                  1. The gonvt must have a significant govnt interest ie to protect
                                                      property values, prevent crime
                                         iii. The regulation must be rationally related to promoting the legitimate
                                              govnt interest (Loosely applied narrowly tailored means )
                                                  1. Ok to zone porn shops in discrete areas of the city b/c it’s a
                                                      good way to protect values, kids, crime
                                         iv. To be a valid TMP restriction the law must provide reasonable
                                             alternative channels
                                                 1.   Reasonable means municipality can zone it ANYWHERE in the
                                                      jurisdiction but it can’t ban it by zoning it out of the jurdx

                          2. Child Porn – If its about the use of minor unclothed in sexual situation then its prima
                             facia case of abuse
                                 a. Govnt may prohibit the exhibition, sale or distribution of child porn even if it
                                     doesn’t meet the test for obscenity b/c state has compelling interest in
                                     protecting minors b/c child porn is related to sexual abuse Ferber
                          3. Must show evidence of Live, real, minors being placed in sexual situations - it will
                             be presumed to be patently offensive
                                 a. Ex: appearance of minors who aren’t real minors govnt can’t ban Aschcroft
                          4. Material doesn’t need to be considered as a whole – if only 1 pic on thw web its enough
                             to shut it down
                          5. Defense: its not sexual
                                 a. However even if the person is no longer a minor its no defense

   I. Freedom of Association
         a. Even though freedom of association isn’t expressly mentioned in the 1 st amendment, but the right to
            join together with others for expressive and political activity is protected by the first amendment
         b. Fact Pattern looking for : Compelled association meaning state passes anit discrijmiation law b/c when
            state says you can’t discriminate you association based on X then you have to associate with that group
            X whether you want to or not
         c. Your claim would be by the govnt passing a non discrimination ordinance has interfered with your right
            of free association – you cn’at tell me who to associate with
         d. Only way that association can win if its either:
                 i. An intimate association OR
                        1. no definition but there are Factors:
                                a. Size of org – the smaller then more likely intimate
                                b. Policies
                                c. purpose
                                d. selectivity – the more selective your are them more likely it’s an intimate
                                    association (important )
                                e. congeniality – friendliness , getting along ( important)
                        2. Ex college frats they are highly selective
                        3. JayCee’s – State law required orgs not to discriminate based on general . Networking
                            group- ct held by including women it wouldn’t undermine their expressive activities &
                            they were too large to be considered intimate association

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                   ii. Expressive Associationis protected from govnt interference
                           1. Expressive org doesn’t just mean Association that bans together for purpose of
                                expressing or promoting certain ideas it also means an org for the purpose of
                                inculpating its membership with certain ideas
                                    a. Advocate certain belief , they ban together for the purpose of promoting
                                        certain ideas/ ideals or agenda
                                              i. The more the specific the agenda more likely to fall under this category
                                    b. you can exclude whom ever you want to if you are expressive association
                                              i. KKK , MAD , Political Parties
                                    c. Govt can’t force these orgs to accept anyone
                   ii. If ur group falls under one of these they can’t compel association
                           1. BoyScouts – NJ law says you can’t discriminate against sexual orientation – so club
                                claims its intimate association however it didn’t work b/c they are too big.
                           2. even though they didn’t fit the traditional picture of group promoting ideas such as
                                those that put up billboards … however since you had the boyscouts on one side & the
                                gay dude on the other Rhenquist ruled that : expressive association doesn’t just mean
                                an association selling an idea or spreading an idea but it includes an org that has the
                                purpose of incumpating membership with certain ideas & values
                                    a. It was in the BS value to be “morally Straight”
          e. If you are one the two things then the anti disc law is invalid as to your association – it can’t be
              enforced against you
  II. Freedom of Press
          a. There is no special reporters privilege protected by the first
          b. Fist amendment allows govnt to subject press to the generally applicable laws & reguatlions even
              though enforcement has the incidental effect on its ability to gather & report news – enforcement of
              generally applicable law against press in NOT subject to SS
                    i. There is a first amendment right for the public and press to attend criminal trial: right is
                       implict in the guarantees of the frirst amendment of free speech press an assembly
 III. Religion
          a. First amendment contains two religion clauses :
          b. Establishment clause – means govn’ t should not favor religion in practice – its role in promoting
                    i. Govn’t may not support or inhibit religion
                           1. real issue is : is govnt supporting or promoting religion such that it violations the EC
                   ii. 2 Fact patterns:
                  iii. Govnt Aid package – money & materials going thru religions orgs usually private religious
                       schools mostly to catholic
                           1. Lemon Test as modified by Agostiin as discussed in Mitchell
                                    a. Its ok for govnt money to end up at religions institutions if the govt purpose is
                                        Secular Purpose with “teeth”– ex to educate kids
                                              i. Secular – not religious
                                             ii. Sectarian – religious
                                    b. Primary effect must be either to advance or inhibit religion ( most pass both
                                        tests )
                                              i. The primary effect of the program is that is causes religious
                                                 indoctrination , it wouldn’t happen but fro the program
                                             ii. Program references religions w/ regard to those who qualify for the
                                                 program –the program “defines recepientes with reference to religion”

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                                                 1.    If the program does this then it has the primary affect of
                                                       promoting religion
                                                   2. Must keep religion or similar words out of defining program
                                                   3. Ex City of lansing has scholarship if you participate in civic or
                                                       church counseling – to receive the aid you have defined the
                                                       recipients by religion
                                                   4. To get around this must state do community service – keep
                                                       church out of the wording
                                 c. If the program results in excessive entanglement between church and state its
                                           i. To avoid this get the straw-man transaction – where govnt gives the
                                              money to a third party so they can make an independent decision & they
                                              give it to the church – such as giving it to the parents through vouchers
                                              for private education otherwise gonvt directly giving money to anyone it
                                              has responsibility to monitor that org ie monitoring church org by
                                              auditing …
                 iv. Religions Display in public place or prayer
                         1. Can still apply secular purpose from Lemon – say I can still apply secular purpose from
                         2. Endorsement – O’ Connor established this test
                                 a. Would a reasonable person looking at the display in its entirety conclude that
                                     the govnt has taken sides with religion
                                           i. either its preferring one religion over another or
                                          ii. religion over non religion
                                 b. how would govnt cure a display from becoming religious
                                           i. by including “other stuff” that is secular
                                          ii. b/c looking at totality of the display so the more other stuff the less
                                              likely that there is promotion of religion
                                         iii. don’t call it Christmas tree call it “Holiday Tree”
                                                   1. A tree is not a religious symbol
                                         iv. Ex. Nativity scene in grand staircase of court house declared
                                              unconstitutional but one with all other kids of weird things: elephants….
                                              This is commercialized so the reasonable person would believe that
                                              govnt isn’t taking sides as tot decision

                         3. Coercion – if there is school display or prayer
                                 a. Prayer at graduation or football game, students & parents s/b able to go to
                                    these events w/o listening to language that conflicts w/ their own religions
                                    beliefs b/c the message that is being sent(that school is promoting) is that
                                    everyone else are outsiders not part of the group
                  v. Other times when its unclear which test apply b/c its not display or prayer such as Intelligent
                         1. Creationism – Creation Science - out of the book of Genesis , state said secular purpose
                            is diversity & education
                                 a. Modern term: Intelligent Design
                                 b. Dover v PA – this is religious no secular purpose
                                 c. Issue of ID – can school board require it to be taught in public school science
                                    class & its challenged under Establishment clause – what test to apply? However
                                    compare it to ex ID being taught in Philosophy class may be different outcome
                                 d. This doesn’t fit anywhere so start w/ Lemon
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                                   e.    Secular purpose for teaching ID – no , it’s a sham
                                   f.    Primary effects that can apply – whether teaching of ID will result in
                                         indoctrination – yes u will belileve what your teacher tells you
                                   g.    Endorsement test- w/ reasonable person conclude tht by teaching ID govnthas
                                         taken sides as to religion – yes
                                              i. Reasonable person is one who knows what religion is
                                             ii. Look at the reasonable student, person , janitor – would all they
                                                 conclude the same yes
                                   h.    Coercion – since it taught in school most students will believe it even though
                                         their parents may not want them to & others will feel like outsiders
                          2. Other      issues
                                a.       Silent reflection is ok as long as you don’t say “silent reflection & prayer”

          c.   Free exercise clause – citizens freedom to believe as we see fit w/o govnt interfering ( gonvt stay
               away from us)
                   i. Framers were concerned with this b/c of the state of England persecuted your for practicing
                      your own religion
                  ii. Two schools of thought as to the meaning of the Establishment clause
                          1. Narrow view Some believe that Establishment clause is limited in meaning that the
                              govnt shall not establish an official religion of the US
                          2. Broader view – no official state church but also not support for religion or involvement
                              of any kind
                          3. You can’t state that its absolute ban or else would apply Ss and every law w/b
                              challenged that is violation of FEC

                  iii. Test: Free exercise calim by itself won’t win, must have some other Con law issue
                          1. If a law is generally applicable – applies to everyone, no exceptions- then we are done
                              with the FE analysis unemployment case v. Smith - if law is generally applicable person
                              can’t claim exception based on Free Exercise clause.
                                  a. IF there are exceptions to a law ie it applies to this group but not that – then it
                                       may be possible that govnt is picking on certain groups , so here would apply SS
                                            i. Santarian Religion – part of religion requires sacrifice of animals , city
                                               finds out and holds emergency hearing & files ordinance “ no sacrificial
                                               killings of animals” –this isn’t a generally applicable law its one w/ built in
                                               exceptions ie ok to kill for food but not sacrifice
                                  b. Only time talk about Hearings –is unemployment compensation
                                            i. Before getting unemployment benefits must demonstrate that you
                                               didn’t quit & it wasn’t your fault- but the issue arise because the person
                                               got fired because of religious observance
                                           ii. When there is an unemployment case where there has been a hearing
                                               for one person to determine whether someone else has been rightfully
                                               discharged there is potential for abuse by state burdening peoples
                                               belief so SS is applied

          d. Smith Got fired for smoking drug on the job, individuals

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           e.   Compulsotyr school attendance law kids between 13-16 must attend
                     i. Kids of certain age must go to state accredited school, Omish opposed wanted home schooling
                    ii. Their fair requires them to educate their kids differently
                            1. Q IS can you get out of complying with the law through some hearing , or does it
                                generally apply to everyone w/o any exceptions built into it – this is generally applicable
                                b/c there are no exceptions & no hearings so give this claim and find another one
                            2. It means you are done with free exercise claim but could find another
           f.   Yoder- you have fundamental right to CCC of kids so compulsory school attendance conflicts w/ that so
                apply SS & the law would fail
           g.   Sherbert –Was fired b/c he couldn’t work on Saturday law involved unemployment comp that allowed
                hearing system where someone decided whether you would get unemployment benefits – its not
                generally applicable law & have built in hearing & chance of abuse of whether the religious beliefs
                justify infringement
                     i. When did she devlope the belief – after accepting the job so the govnt argued that regliius
                        belief adopted after person was hired is not sincere- court held it doesn’t matter when you
                        developed it
                            1. SS applies: States interest is prevent fraud , the means chosen here
                            2. Are denying unemp benefits to soemoen b/c of their religious beliefs the best way of
                                preventing fraud – no its not if she sincerelyt believes it
                    ii. Valid govnt defense – For FE Clause court can inquire into the sincerity of ones belief but is
                        not allowed to inquire into the validity of your belief
                            1. so long as person sincerely believes what ever it is she will win
           h. Church of Babuluia
                   i. Generally applicable no , have exceptions for sacrificial
                         1. State arguing health and safety of people & animals court will say ok it is
                                 a. if claiming it protects certain animal then the means aren’t narrowly tailored
                                      b/c these people are actually eating the sacrificed animals
                                 b. as for the health and safety argument, you would have standards about how to
                                      kill animals & define sanitary /non sanitary ordiance ….but the current law is not
                                      the best possible way for ensuring that sanitary way animals are killed its not
                                      even a good way
Example polygamy law / w/b upheld b/c its generally applicable so

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