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Constitutional Law II- general focus economic liberties through amendments

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									Introduction to Constitutional Interpretation
I. Declaration of Independence A. 1st document of Constitutional law, issued July 4, 1776 B. Aspirational Document—probably not enforceable, but holds values and principles this country aspires to 1. Is Supplemental documentation to Constitutional Interpretation 2. Contains the notion of popular sovereignty 3. Introduces notion of king as a tyrant a. King as the executive stepping on other branches—dissolving the legislature (i.e. the people‘s voice) b. Imposing on judicial independence by disposing of unfavorable judges c. Over-militarization of the govt & fear of the military dominating civil govts Articles of Confederation A. Weak document 1. States retain too much sovereign power 2. Legislature is unicameral 3. Trade function of the national govt doesn‘t work b/c individual states coin own $$, charge taxes 4. Driven by notion of republicanism—i.e. having the govt come together for the common good when necessary, but otherwise remaining local Constitution and the Bill of Rights A. Differs from Articles: 1. Strengthens power of the central govt a. Executive—President, but not like a king b. Legislature—Bicameral (one based on ## of states to protect the smaller states & one based on ## of people to protect people from the elite) c. Judiciary—Innovative b/c lifetime tenure + set salaries 2. Keeps the system of checks and balances a. Marbury v. Madison: Introduces the concept of judicial review—Ct deciding whether Congress or Prez or States have overstepped their boundaries b. May be amended B. Debate over the Need for a Bill of Rights 1. Federalists: Inalienable rights exist, even though are not spelled out. These rights are not taken from anyone unless specifically declared a. Madison‘s speech: Recognizes the danger of abuse; Proposes a compromise 2. Bill of Rights—Rights considered fundamental C. President Bush‘s post-9/11 activity 1. Executive Order: Targeting non-citizens affiliated with Al Quaida or another terrorist group a. No time limit for detention b. No procedure to review detention (1) Trial is by ―special‖ military tribunal 2. Jose Padilla: US Citizen declared an enemy combatant



3. Bill of Rights concerns a. 1st A: Freedom of speech—when do words alone justify punishment and Freedom of association—need to define ―affiliated with al quaida‖ b. 4th A: Search and Seizure—Pre-trial detention = seizure c. 5th A: Right to counsel and other fair trial rights d. 6th A: Right to Trial provisions (1) But unclear if this is a criminal prosecution 4. Checks and Balances questions a. Is Congress the only branch that can set up courts? b. Can the prez set up other types of courts? c. Is it ok that there is no role for the judges? d. re: Prohibition to suspend a writ of habeus corpus (here: may not have a hearing if a person is held lawfully, and the prez says no court may issue writs) IV. Is the Court the Supreme Constitutional Interpreter? A. Cooper v. Aaron (1958): Post-Brown. Little Rock School Bd‘s plan to desegregate over a 3-4 year period. Little Rock H.S. incident—Desegregation in motion. Governor decides to intervene b/c he believes he can interpret the Constitution since the S.Ct got it ―wrong.‖ Held: The JUDICIARY HAS FINAL SAY in interpreting the Constitution. 1. Here, the court refused to yield to mob violence 2. This is similar to Prez Bush‘s current orders. There, Prez is acting to interpret the Constitution to protect national security. Is it the wrong state officer interpreting the Constitution incorrectly? 3. BUT…this also raises questions of enforcement. Who will enforce the rulings of the court should the other branches decide that the court‘s ruling is wrong? a. Thus, the court‘s legitimacy is based upon others‘ willingness to go along with their rulings B. Ed Meese‘s argument 1. Court does not have carte blanche to interpret the constitution 2. All officers take the oath, have the duty to interpret the Constitution a. This is President Bush‘s argument—i.e. that he is doing his duty of upholding the Constitution Slavery, the Constitution and the Court A. Thomas Paine 1. Slaves are inoffensive (i.e. not criminals) & thus, being involuntarily held 2. POWs—legal justification for the slave trade 3. Fuels the abolitionist movement a. Appeals to sentiments against oppressive rule 4. Refers to the Bible/Christianity a. Christian becomes a symbol of ―civilized‖ 5. Appeals to Natural Law (as opposed to positive law—which is written, ratified) B. The absence of ―slavery‖ in the Constitution


1. Needed accommodation for slavery in order for the Constitution to survive 2. 3/5 clause (how congressional representatives are appointed) a. Slaves (―all other persons‖) count as 3/5 person for purposes of taxes and reps (1) Indians = 0; Free persons, indentured servants = 1 b. Federalist 54—Deals w/ the 3/5 clause (1) This solution dealt w/ the problem of whether a slave was property or a person (a) North wanted slaves as ppl to get more representation w/o taxes (b) South had ppty interest in slaves 3. Importation Clause a. Allows slaves to be brought to US until 1808 (20 more years) b. Shows the compromise b/t abolitionists and slave-holders C. The Antelope (1825): US coast guard seizes ship in waters surrounding the US. 280 Africans on board. Spain and Portugal sue for the return of their property. US appears as the ―next friend‖ of the Africans (i.e. Δ). 1. Held: Marshall: Every nation has the right to have its own laws → law of nations. (now called international law) a. When there is a conflict of laws, then individuals are only subject to the law of the (sovereign) states 2. Law of nature (i.e. universal truths) also implicated a. This source of law is trumped by the law of nations b. Marshall begins to call the law of nature ―feelings‖—Can‘t use ―feelings‖ unless it becomes expressed as positive law or in the law of nature 3. Remedies a. Portugal not given back slaves, Spain given back some slaves b. Allegations that slave owners may have been Americans clothed in a flag of another country D. Prigg v. Pennsylvania (1842): Penn. statute barred self-help in the return of slaves. Prigg is a slave owner who was convicted in a criminal case under Penn law for trying to get his fugitive slave back. Prigg appeals conviction based on theory that Penn law in unconstitutional [Constitution, Article IV § 2[3] allows a slave owner to reclaim a fugitive slave from a free state]. 1. Held: Federal law trumps state law 2. This clause reflects the compromise part of the constitution 3. Justice Story: This clause is self-executing, meaning no additional legislation is needed by Congress. Thus, since clause is self-executing, one can exercise selfhelp a. Clause is very clear (like the prez must be 35 years old) b. Majority‘s approach reflects that this clause was a compromise 4. Justice Tawny (concurrence): Agrees w/ result, but believes that states should be able to legislate. Sees this as a compromise b/t states.

5. Justice McLean (dissent): Fugitive Slave Act does not address self-help. Process set up by Fed Govt in which owner was to go to the magistrate or federal judge → need a hearing. Thus, self-help not allowed E. Frederick Douglass—argument 1. Born a slave of mixed heritage, abolitionist 2. Need strict construction of the Constitution—no room for interpretation a. Look to the plain language and if there is an answer, don‘t go further 3. Argues that ―slave‖ is not in the Constitution 4. Art. IV, §2[3] is not a fugitive slave clause; is an escaped indentured servant clause 5. Under Douglass‘ interpretation, can have freed slaves (i.e. free people) w/o a constitutional amendment a. Reflections the idea of a living constitution, that the Constitution can change over time b. Also demonstrates that Constitutional interpretation is how one constructs it and which sources one believes are relevant F. Dred Scott v. Sandford (1857): Scott is born a slave in Missouri (slave state), but owner travels to Illinois (a free state), then back to Missouri. Scott argues that he was free by virtue of traveling through Illinois. Case in federal court by diversity jx. 1. Held: The case is thrown out for lack of federal jx b/c Scott was a slave, not a citizen. The forum state‘s law‘s could be followed. 2. Example of judicial activism. Could have stopped by deciding which state‘s law applied. But went further and commented on citizenship a. Justice Tawney probably wanted to end the slavery controversy (i.e. whether slavery was Constitutional and the statute Constitutional) 3. Holding: People of African ancestry, whether born into slavery or born to free parents, are NEVER free citizens in the eyes of the Constitution 4. Majority: Look @ Framers‟ intent: ―all men‖ ≠ entire human race a. Dissent: Not inconsistent for the framers to say ―all men‖ to mean all men. Constitution applied to both free and non-free slaves (1) Words were for future generations, understanding that allowing non-free states into the Constitution was a compromise. (2) Framers‘ intent was eventually for all men to be free G. Civil War 1. Lincoln elected 2. South Carolina secedes a. Leads to a Constitutional crisis of whether a state could secede or are they in the republic forever? 3. Emancipation Proclamation: Southern states have 3 months to rejoin the union and then slaves will not be free. If they don‘t rejoin the union, then slaves freed. All Southern states refused. No immediate effect a. Is this document even Constitutional? Can the prez declare slavery unconstitutional—isn‘t this the court‘s or states‘ duty? 4. Post-Civil War:

a. States want to rejoin b. No southern reps in legislature H. Reconstruction Amendments 1. 13th A (1865)—No slavery or involuntary servitude in the US a. Passed quickly b/c no opposition from absent Southern states 2. 14th A (1868)— a. Overrules Dred Scott: If born here, person is a citizen (federal and state). No state can decide issues of citizenship b. P&I Clause: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US (1) Broad and sweeping (2) Does not apply to private action c. Equal Protection/Due Process Clause 3. 15th A—Right to vote shall not be denied on account of race, color, or previous condition of servitude

Equal Protection Clause
“No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” I. General concepts A. EPC implicated only when the government makes a classification 1. 14th A applies directly to states 2. Federal govt—Bound by the same rules of equal protection via indirect means of the 5th A‟s due process clause. Thus, if an action violates the EP for a state, the same action would be unconstitutional if done by the federal govt. B. Drafted 1865 → Ratified 1868 1. Condition reinstatement of the Southern states into the union (i.e. Cannot get Congressional representatives to sit unless the states will ratify the 14th) II. From the Separate-but-Equal Doctrine to Brown A. Plessey v. Ferguson (1896): π was 7/8 white. Under LA law, he was black, and not allowed to ride in white RR car. Misdemeanor crime for anyone who violated this statute [that RRs must maintain ‗separate, but equal‘ accommodations for white and colored races] 1. Held: Statute is constitutional. States can legislate separate but equal accommodations in virtually all activities—except certain civil society tasks (juries, voting, etc.)—eventually this will be proven false a. Std of review: REASONABLENESS (i.e. low-level) b. Defer to the legislature—Reflects democracy b/c legislature is voted by the people. Judges are iinsulated from the democratic process c. e.g. of JUDICIAL RESTRAINT—Ct sees this as a state issue—not a Constitutional one.


3. 4.


d. EPC doesn‘t reach out to a ―private sphere‖/social equality (sees transportation as a ―social issue‖—i.e. where people feel comfortable sitting) Justice Harlan (dissent): This is NOT a reasonable regulation. The statute‘s purpose is to hold people of color in an inferior position. a. The EPC reaches public transit b. Also points out irony that Asians are treated as whites. Here, a criminal penalty is implicated. If a criminal penalty is implicated, the court is more likely to take a closer look b/c of the stigma of being declared a criminal. Possible 13th A argument: 13th A was to get rid of slavery. Directing blacks to another car could be ―badges + incidents of slavery.‖ (i.e. seeing the why of it) Slavery is about forced inferiority of an entire class of people based on assumptions of their capabilities. a. ―Incidents of slavery‖ = keeping people down even though they are not enslaved b. 13th A enjoins everyone in the US from engaging in slavery (1) Thus, no state action is necessary (2) Can stretch the meaning of ―slavery‖ to the badges + incidents of slavery Post-Plessy a. NAACP strategy to make incremental victories b. New court steps in w/ Thurgood Marshall (C.J.) + Justice Black (former KKK member, but strongly against Plessy)

B. Development of the levels of scrutiny 1. Early Con Law opinions, Ct is really vague. a. Look @ plain meaning first b. Plessey: Just look @ whether the statute is reasonable. If reasonable, then survives scrutiny of equal protection clause (1) Harlan (dissent): Apply the reasonableness test to take a harder look @ the legislature‘s motives 2. Post-1960s—Opinions articulate the idea of level of scrutiny C. RATIONAL BASIS TEST/Minimum Level EPC Scrutiny 1. RR express (1949): NYC passes a law prohibiting business advertisements on the sides of trucks unless you owned the truck and the ad was related to owners‘ busiiness. Justifies law as trying to increase traffic safety. Held: Constitutional. a. Defers to the legislature‘s wisdom b. Economic or business classification implicated → always low level rational scrutiny (1) Strong presumption that legislature is acting w/in constitution (2) Ct fears return to the Lochner Era, where ct gets involved in economic/ppty regulations under the due process clause (3) Trust that businesses can work w/ the local governments in the democratic process 2. Carolene Products—Prohibiting filled (substituting better & replacing it w/ vegetable oil) milk. Ct: Even though the consumer is the effected party, Ct will defer to the legislature‘s wisdom to avoid regulating the economy

a. fn 4: Ct should take a harder look in some cases—e.g. if Bill of Rights violated by the legislature + if a group is not involved in the political process (i.e. if no level playing field, ct will take a harder look) + if group is a discrete and insular minority 3. General rule: Classification will satisfy the EPC if: (1) reasonably related to (2) legitimate governmental purpose. a. Defer to legislative wisdom b. Analysis: (1) Is what the govt did reasonably related to a legitimate govt purpose? (2) What is the distinction—i.e. who is being treated differently from whom? What is the classification? (3) ―Fit‖ question—How close is the fit b/t objective and classification? (a) Lowest level of scrutiny: Reasonably related (b) Higher level of scrutiny: Closer fit, beyond reasonableness III. Brown and Theories of Constitutional Decision-Making A. Brown v. Bd of Education (1954): Actually, 4 cases consolidated to challenge the ―separate but equal‖ (segregationist) policies in public school education @ primary and high school levels. 1. Held: Separate facilities are inherently unequal and inherently violative of the equal protection clause a. Even if ―tangibles‖ (i.e. funding, facilities) are equal, the non-tangible is inherently unequal. Separation conveys a message that one group is better than the other. The suffering group is suffering under the equal protection of the law. b. Also, special role of education as a national issue. Ct can intervene w/ education—even though it is typically a local govt function—b/c of its role in developing good citizenship 2. Overrules Plessy 3. Justification by ―dolls study‖ (psychological student of children) a. Ct refuses to rely on the history of the 14th A—too inconclusive (1) No public schools @ time of the 14th A B. Brown II (term after Brown I, which decided that segregation in public schools was not ok): Dealt w/ the remedy. Held: School districts ―should try and desegregate in accordance w/ the holding at all deliberate speed.‖ 1. Federal judges to monitor this process  opens a new era of judicial supervision 2. After this decision, then judges to monitor other desegregation decisions (i.e. swimming pools, police depts). a. Thus, all local functions to be monitored by the federal govt 3. Freeman v. Pitts (1992): Atlanta school district is still segregated (de facto)— mostly due to changing residential patterns (i.e. white flight), not local govt action. Plaintiffs seek more aggressive methods (bussing, gerrymandering school zones) to desegregate the schools—since evid shows that schools more segregated now than in time of Brown. a. Held: Here, segregation cannot be traced to unlawful segregation of Brown. Ct cannot control the change in the private housing market.

b. Thus, federal courts end judicial supervision in discrimination C. Bolling v. Sharpe (1954): Segregation in DC public schools. 1. Held: Unconstitutional. a. b/c DC is not a state, 14th A does not apply b. Ct relies of 5th A‘s due process clause (although no equal protection clause) (1) Brown decided on 14th A, so doesn‘t apply (2) Ct looks @ ―liberty‖ in 5th A (a) The concept of equal protection is inherently in ―due process.‖ Equal protection is only a subset or specific type of due process (i) Both equal protection and due process have an overriding principle of fairness (i.e. not acting arbitrarily) (b) Liberty involves the ability to go to school and avoid arbitrary obstacles. 2. The court also introduces the idea of nature of classification, govt purpose, and fit. a. Ct talks in terms of rational basis, but indicates that ―particular careful scrutiny‖ is going on b. Here, Classification: suspect [based solely on race]; fit: not reasonably related to proper govt purpose D. Theories of Constitutional Decision-making: Need theories to set boundaries for the scope of judicial review (to make the court‘s decisions more predictable). Theories limit judicial review against the countermajoritarian difficulty (i.e. the idea that the court is going against the majority/representatives by democracy by overruling the act of congress; also concern b/c the court is not accountable to the people since judges have life tenure). 1. Originalist Theories a. Use different sources to glean the intent of the Constitutional provisions @ time it was written. (1) Text—Start @ the plain meaning and if clear, then stop. (a) Look @ the meaning of the words as they meant at the time they were written (b) See the text as a social ―deal‖ at the time the Constitution was passed (c) If this is problematic, then amend the Constitution (2) Historical References—Text is not the only indicator of the meaning. By using historical references, acknowledge that the meaning at the time was a little more complex (a) Still must stick with the meaning at the time (3) Holistic/structural theories—After looking at the text & historical references, look at the structure (the questionable phrase in context of the rest of the document/historical documents). Structurally, look @ principles (e.g. that the constitution was set up to limit the power the govt)— (a) Still must look @ the meaning at the time b. Criticism: Ongoing consent—Things change as time passes. Immigrants, slaves, women didn‘t consent to the original deal. Also how to verify what the founders really meant 2. Legal Process/Proceduralist Theories a. Constitution is about procedure

(1) Assumes the process is fair and will bring good outcomes. Procedure is ―neutral.‖ (2) Judges should only step in when the political process has been dysfunctional or procedurally flawed. Thus, judges should not be making substantive judgments of what is good or bad. b. Focus on the HOW you got the answer—not the what. (1) Outcome should NOT drive the inquiry c. Public Choice Theory: ―market‖ theory of politics. Everyone has an equal voice to the extent that the process are fair. (1) Assumes that having set rules forces everyone to play by the rules and eliminates the possibility of favoritism d. Representation reinforcement theory—If political processes break down, then judges step in (e.g. discrete and insular minorities left out of the political process) e. Criticism: Nazi laws—full of procedure. But questionable solution if the procedures are substantively evil and cannot be rooted out by neutral principles 3. Evolutive Theories a. ―Living‖ Constitution—Interpret the Constitution according to contemporary needs b. Civil Republicanism—Notion that democracy comes together for the common good. If originalist meaning is bad for the civil virtue, ok to overturn it. c. Criticism: Personal bias of the judge rides heavily E. Amann‘s Synthesis of Interpreting the Constitution (now, no judge is so strict that they will stick to only one method. as a litigator, try to appeal to the majority) Think of the chart as a pyramid. The lower the judge goes, the more discretion she has. 1. Constitutional text—If specific enough and the words still mean the same thing today as they did when written → focused (e.g. need to be 35 years old—means same today as way back when) → open (words that don‘t have lots of meanings & create a need to look beyond the text) → context of the entire Xn (canons of statutory construction—i.e. what the legislators means when they said different things) [this implicates the rule against surplussage: giving meaning to every word.]  e.g. bolling v. sharpe—would be surplussage if the 5th A mentioned equal protection since it is already a part of due process & mentioning equal protection would imply that it only included equal protection and not other aspects of due process 2. Original Intent—What the authors meant when they wrote the provision (this is also often inconclusive 3. Precedent & Practice—Pragmatists—Con Law is just another c/l rule 4. Purpose—Look @ purpose of the Constitution, but w/ the knowledge of things the framers couldn‘t contemplate (e.g. electronic surveillance) 5. Practicality & Resistance—More like a policy or political question. Judicial restraint recognizes that the court cannot do too much w/o compromising its legitimacy. Fear of being ignored—acknowledges that the court is only as

powerful as the other branches let it be. Thus, defer to the idea of incremental change 6. Ethical & Political Norms—More activist thinking. Invocations to democracy— judge asks, ―what would a democratic country who believes in democracy do?‖ IV. The Constitution and Racial Discrimination A. Why Race? What is Race? 1. The Court and Discrimination Against Persons of Asian Ancestry a. Chae Chang Ping v. US: Federal law prohibits Chinese laborers in the country. Ct. recognizes this is a racial classification, but sustains the rule— deferring to the legislature (1) Ct is also reluctant to extend EPC to other group besides AfricanAmericans, for whom it was intended b. Yick Wo v. Hopkins: Petitioner (Δ) files a petition of habeus corpus. Δ operated laundry for 22 years in SF. Δ is a non-citizen/alien Chinese [ppl of Chinese ancestry not allowed to be citizens]. Δ had no previous infractions. SF Bd of Supervisors denied his license to operate a [wood] laundry, but he still operated it and was cited w/ a misdemeanor. SF Bd of Supervisors denied license on the grounds of public safety/preventing fires, but approved other non-chinese [wood] laundries and denied all chinese applications. (1) Held: Ordinance discriminates against Chinese and thus, violates the Equal Protection Clause (2) Facially neutral statute, but discriminatory application (a) Ct examines the history of discrimination directed @ Chinese (b) The only apparent reason for denial of the license = race. This violates the equal protection of the laws. (3) Classification is race, so ct takes a harder look—even though this does not refer to African-Americans (4) Strict scrutiny applied here. A compelling govt interest (i.e. preventing fires) present here. Fit was problematic. Need the fire marshals to check the laundries—not decide that certain racial groups should not have laundries. c. Korematsu v. US: Japanese-American/US citizen. Defies WWII military order that ordered JAs to camps. Korematsu cited for misdemeanor violation and is put in jail. Eventually files a habeus corpus petition. (1) Held: Constitutional restriction. Govt purpose: national security, a ―pressing public necessity‘ → a high level interest. (a) This goes to show that not ALL restrictions based on race are unconstitutional (b) If the govt interest is high enough, it will trump the scrutiny of a racebased classification. (c) Here, two interests in conflict: race based classification v. highest level interest in national security (d) Racial antagonism is NEVER a compelling state interest that justifies violation of the 14th A (2) Dissents (a) Roberts: Two contradictory orders issued = violation of due process

(b) Murphy: Accuses executive branch of ―racism‖ Situation not dangerous enough to justify martial law. This is clearly about racial antagonism (c) Jackson: Military doesn‘t always act w/in the Constitution. But here, FIT is problematic—the scope of the order was too broad, included everyone. Should figure out a process to who was loyal and who disloyal. (3) This is the last case that the US S.Ct. upheld a race-based classification B. The Antidiscrimination Principle/Formal & Substantive Equality 1. ―Race,‖ as defined by the law, is a social construction—i.e. the law decides who belongs to which race. a. This informs out understanding and interpretation of the 14th A (1) Standard assumes a ―sameness:‖ (2) Differences matter b/c society says it matters 2. Formal: a. Antidiscrimination means that the state should not consider race when making decisions (1) b/c there are no relevant differences among the races, legislative distinctions based upon race are not rational and are therefore illegitimate (2) EPC requires rationality in state action, not actual improvement in the social position of racial minorities 3. Substantive a. Antidiscrimination means that race must be taken into account when the state makes its decisions (1) The situations of racial minorities is a consequence of long-rooted racial subordination in American history. The only way to rectify that is through state action helping these groups (2) EPC requires substantive justice C. Facial Racial Classifications that Disadvantage Minorities or Evidence Racial Hostility 1. Loving v. Virginia (1968): White man and black woman. Convicted for violating Virginia‘s anti-micegenation laws. Punishment: 10 days in jail or promising not to come back to Virginia for 20 years. a. Held: Statute is unconstitutional b. Statute only concerned w/ preserving the white race, since other non-whites can marry each other c. Virginia argues Neutral classification, since equal application of the law (1) S.Ct: No, this statute makes a race-based classification (2) Ct will not settle for formal equality. Need to look further at what is driving the statute. 2. Now, facially discriminatory statutes are considered irrational b/c there is no objective criteria to justify them. BUT…we are experiencing a tension b/c we‘re not completely comfortable w/ the idea of rushing to give everyone an equal playing field.

D. Facially Neutral Classifications (Discriminatory Intent and Effect) 1. Not enough to treat people the same, but for invidious intent a. Yick Wo & Loving = Ct determines that racial animous is fueling the classification → higher level of intent 2. Washington v. Davis (1976): DC police dept requires a written personal test. Disproportionate number of African-Americans fails this part of the test, thus, keeping them out of the police service. Nothing on the race of the requirement to treat African-Americans differently than others. a. Held: Disproportionate impact alone is not enough to trigger the EPC—esp. since govt interest is compelling (i.e. want police to have good communication skills). Not enough evid of discriminatory animous/intent. b. Facts do not show that disproportionate impact is a device to discriminate against African-Americans 3. Invidious Discriminatory Intent Test: a. Plaintiff‟s Prima Facie Showing (1) facially suspect classification, OR (2) facially neutral, but: Plaintiff shows intent ―a‖ motive; i.e. ―b/c of‖ such intent factors:  disproportionate impact (alone does not end the inquiry, but strong support)  clear pattern otherwise unexplainable  sequence of events to decision/act  procedure, substance departure  statements at decisionmaking --cts seldom allow testimony b. Defendant‟s Response Δ tries to establish that decision/act was based on a neutral reason; that is, that same decision would have been made/same act would have been done even if impermissible purpose not considered. c. Plaintiff‟s Rebuttal π tries to show that the neutral reason that Δ asserted was a pretext—i.e. was not the real reason—and that but for Δ‘s desire to discriminate on an impermissible basis, the decision would not have been made/act would not have been done. d. In short, the ct requires: (1) Prove intent through direct or circumstantial evidence (a) numbers about the impact/effect of the law—e.g. stark numbers of yick wo (2) Must be a motivating factor in the decision

E. The State Action Doctrine As a Limit on the Judicial Power to Address Racial Discrimination 1. EPC is only implicated when the state makes a classification a. Bill of Rights is subject to the state action doctrine. (1) Applies to state & local govt b/c of the incorporation doctrine b. Ct struggles w/ public v. private distinction in the Civil Rights cases. In general, state means state. Private actor can only be treated under the 14th A unless a very close relationship w/ the state can be shown. Three instances: (1) Private land but public functions (Marsh v. Alabama: Company town case.) Private company discharging traditionally public functions is not immune from having to provide equal protection. (2) State encourages private discrimination (Shelley v. Kraemer: Racial covenant preventing black families in a housing project.) By asking the cts to enforce/tolerate this private discrimination is state action—even if the state does not initiate the decision to discriminate. (a) This is problematic b/c judges act all the time & does not necessarily mean that anything a judge signed off on is state action (b) Ct has generally limited or ignored shelley (3) State and private acts entangled (Wilmington Parking garage: City garage which opens on the street level to businesses. One of the restaurants refuses to serve blacks. Ct: Although the business was a private restaurant, there was so much intertwining with the city that it was considered a state action. Building‘s purpose was to provide parking to the public) (a) Need a high degree of entanglement 2. Edmundson v. Leesville Concrete Co. (1991): Federal trial during voir dire. Δ, a private company, exercises preemptory strikes to exclude blacks from the jury (employment discrimination case). Held: The attorney is not completely a private actor b/c he has the assistance from the government. Govt facilitates the jury and trial system + trials by jury are a traditional government function. a. Justice Kennedy‟s State Action Edmonson Synthesis (1) Was the Constitutional deprivation the result of the exercise of a right/privilege w/ its source in state authority? (here, yes, only have rt of preemptories if in a court) (2) Can a private party fairly be described as a state actor? (a) Does it rely on government aid/benefits? (b) Is it a traditional governmental function? (marsh) (c) Do incidents of governmental authority uniquely aggravate the injury? 3. NB: Should still press the Constitutional issue when there is a statute that could get the plaintiff a finding of discrimination—better damages for Constitutional violation. Also, statutes are designed to prevent excessive or punitive damages. F. Affirmative Action 1. Definition: Government program that uses a ―suspect‖ classification for affirmative/postive/benign 2. Controversy: Benign racial classification or reverse discrimination? a. 2 approaches

(1) ―Race neutrality‖—strong presumption that race is never relevant to government decision-making (2) ―Discrete and insular minority‖—government might sometimes have legitimate reasons to consider race, but not when the group disadvantaged by the classification is a racial minority b. Benign (1) Justice Thomas: Govt affirmative action programs perpetuate a sense of racial inferiority. Does more harm than good b/c saying that the group needs help in order to succeed c. Discrimination: Since EP is a personal right, is there discrimination against an individual if allowing a previously disadvantaged individual over them? d. HOW? Even if level of scrutiny is determined, how to do this? (1) How much deference to give to government body (e.g. school, city council, etc.)? (2) The more deference given to the govt body, higher assumption that they are doing the right thing. 3. Level of scrutiny: STRICT a. Classifications based on race or ancestry are always suspect 4. UC Regents v. Bakke (1978): UCDMC reserves 16 of its 100 spots for members of a disadvantaged group. Bakke argues that he would‘ve been admitted if not for the quota. S.Ct. rules: 4 (brennan four); 1 (powell); 4 (statutory four) a. Brennan four: Quota is ok b/c this is to remedy past discrimination. (1) Applies midlevel/intermediate levels of scrutiny (less ―fit‖ than necessity) b. Powell: Not ok, but applies strict scrutiny. Diversity is ok as a compelling state interest, but a bad ―fit.‖ (1) Quotas/numbers are bad. Does not assess the quality of the nonminorities v. the ―16‖ (2) Numbers are too rigid that they become irrational. c. Statutory four: Quota not ok, but on statutory grounds—not constitutional grounds 5. General principles a. Deference issue: The lower level of govt doing the program, the more likely to strike the program. Ct is likely to defer to Congress, e.g.: (1) State/Local govt programs—struck as unconstitutional i) Bakke (medical school) ii) Wygant (CBA agreement where minority teachers were the last to be laid-off) iii) Croson (city of richmond must contract at least 30% of dollar amount to minority businesses) (2) Federal programs—upheld i) Fullilove (fed. govt funds require that 10% of funds to local govts must be spent on minority businesses) ii) Metro (fed. race-based preferences for increasing minority ownership of TV and radio stations) iii) Adarand (preference of a minority construction company in road project)

b. The more the methodology is strictly numbers, the more likely it will be struck. Ct uncomfortable w/ baldness of pure numbers (quota, ## or %) (1) But…ct favors flexible criteria. (2) ―Disadvantage‖ can be taken into account, but economic or social criteria is race-neutral. (a) May also have parallels that certain races are considered disadvantaged, but is not purely race-based (3) e.g. bollinger: Not universally bad to take race into account, but can‘t have rigid pidgenholing of this factor c. Court prefers (1) Race-neutral means (2) Narrow-tailoring—Need to make a ―fit‖ (3) Under/Overinclusive Problem (a) e.g. Overinclusive benefits more ppl than it means to be benefitted d. What are the sufficient interests? (1) Until Bollinger, Powell in bakke was the only one to say that diversity was a compelling govt interest e. Complicating Factors (1) “Majority minority” –e.g. Croson: Richmond City Council sets 30% of city business for minority owners, but a majority of the city council = black. Ct sees this as ―suspect‖ (2) “Racial politics‖—e.g. Predominantly African-American city counsel is giving preference to this group (i.e. african-american construction companies). Appears neutral, but race-based effects (3) Proxy—When advantage one group, may disadvantage another (4) Group v. individual preference 6. Grutter v. Bollinger (2003): Univ. of Michigan law school has an affirmative action program set up that attempts to achieve a critical mass in its student body. Grutter, a white female w/ 3.85 GPA + 161 LSAT. Denied admission, but is in the ―iffy‖ category. a. Level of scrutiny: STRICT (1) This is a race-based classification (2) Strict scrutiny whether purpose of program is affirmative or negative (3) Ct challenges ―strict in theory, fatal in fact‖ b. State government actor = public law school c. State interest: Diversity w/in the student body (1) Academic freedom: school as a ―marketplace of ideas‖ (a) This differs from UCDMC—where med school was admitting students to return to the underrepresented communities and serve them (b) Deference to the public officials (i.e. law school admissions committee)—They best understand how best to obtain diversity of ideas d. Thomas‘ (dissent): Classifications are not benign. (1) Fundamental premise is wrong—that programs bring ppl up instead of bringing them down. Programs perpetuate notion that racial minorities are inferior

(2) Narrow tailoring question is problematic—Umich did not adequately exhaust all race-neutral classifications (a) Lottery idea (3) Questions state interest in having an elite law school e. Analysis (1) Changes in this case: (a) Increasing deference (b) Strict scrutiny is NOT FATAL (c) Diversity IS a compelling factor to ensure the free exchange of ideas in the classroom (2) Limitations of this holding: (a) Does linking this situation to academic freedom limit extending the need to diversity to civil service and other areas of government? (b) How far can ―diversity‖ be pushed from the academic setting? f. Analytical Outline (1) Treatment of Suspect Classifications If classification is suspect, either: - on its face, or - by Yick Wo facially neutral classification analysis (2) Then strict scrutiny applies, even if classification seems to benefit traditionally disadvantaged group; i.e. whether state action is negative or affirmative [assumption: this applies beyond racial classifications] (3) What is strict scrutiny? Suspect classifications are subject to the most exacting scrutiny; i.e. they must be: - “necessary” to accomplishing - “compelling governmental interest” In context: “Compelling governmental interest” = “pressing public necessity” (a) Yes: i) National security/stop violence ii) Correct govt‟s own, specific acts of past discrimination— i.e. Croson: City of Richmond itself is not responsible for the absence of black construction ks v. school segregation cases where school bd itself is responsible, so ct will permit it to compensate for its own wrongdoing. Likewise, cannot act on behalf of the rest of the world—e.g. Freeman v. Pitts, need to trace segregation to something the school did—not housing patterns iii) Promote diversity

(b) No: i) ii) iii) iv)

Forment racial antagonism Perpetuate stereotypes Remedy societal discrimination Provide role models—e.g. Wiegand, laying off teachers but retain teachers of color to keep these teachers as role models. Ct says no b/c lack of teachers of color is not the school district‘s fault

(4) the ―NECESSARY‖ [fit] (a) Narrowly tailored—use least restrictive means to achieve purpose i) must show race-neutral alternatives considered, but will not achieve interest--e.g. lower standards to keep diversity ii) detailed findings, time limits preferred—i.e. want detailed findings w/r/t why this is the best way to do things + time limits to give these race-based programs a foreseeable end iii) quotas, rigid numbers disfavored—e.g. need flexible admissions program V. Gender Discrimination and Other Equal Protection Concerns A. Sex-and Gender-Based Discrimination 1. Women outside the Constitution: The Traditional Jurisprudence of Difference a. Women and men are biologically and inherently different than men, and the law should treat them differently—deference to nature (1) Challenged by the Seneca Falls Declaration (1848): Pushes the idea of sameness. The only thing holding women down = laws (2) In re Bradwell: Myra passes oral bar exam, and is endorsed by judges for admission. Bar refuses her admission b/c she is a married woman— violation of natural law to be available to help her husband (a) S.Ct: Endorses Illinois‘ decision to refuse her a license. i) Rationale: Natural law is the domestic sphere for womanhood. Unmarried women in business are an exception b. Debate over whether EPC extends to classifications other than race (1) Originalist argument: 13/14th A was in response to slavery—indicates that race is implicated. Only thing framers had in mind = slaves (2) Textualist argument: Allows for broad application of the EPC. If framers wanted to limit this language (―to any person w/in its jx…”) to freed slaves only, they would have put that in the language. (3) Post-Ratification, S.Ct stretches EPC beyond slaves and their descendants (i.e. to Chinese immigrants, (i.e. to Chinese immigrants, Yick Wo). Factors: (a) History of discrimination (b) Immutable (can‘t be changed and ―accident‖ of birth) (c) “Gross/inaccurate stereotypes” (i.e. all chinese…) (d) “Discrete and insular minority” & “politically powerless” (discrete = set apart, highly visible; insular = group isolated by itself) (e) Alienage (non-citizenship or ability to become a citizen)

This breaks down the notion that high scrutiny is only given to those cases where discrimination is based on the accident of birth. Thus, immutability may not be the best way to distinguish a classification. (4) Fitting in women (a) History of discriminatory laws w/ differential treatment (b) Immutability—yes @ time of these cases (c) Gross stereotypes—laws based on stereotypes that women were weaker and less capable (d) Discrete/insular/highly visible—tougher here b/c women are not isolated from society & not a minority 2. The Jurisprudence of Equal Treatment and Heightened Scrutiny of Sex-Based Distinctions a. From Rational Basis to Intermediate Scrutiny (and Beyond?) in Gender Cases (1) Rational Basis → Reed v. Reed (1971): Bro and sis—which one gets to administer the estate. Idaho statute: tie goes to the male. (a) Held: Violation of the EPC (b) Ct uses rational basis scrutiny & rejects valid state interest (administrative convenience) as arbitrary (2) Strict Scrutiny → Frontiero v. Richardson (1973): Differing benefits for serviceman by sex. Justification is for administrative convenience based on the idea that most men are breadwinners. (a) Brennan (plurality): Tries to put sex as a strict scrutiny classification by comparing women to blacks i) Women are politically powerless ii) Powell/Burger/Blackmun concur: Agree w/ result but reject notion of heightened scrutiny (b) State may NEVER justify discrimination on administrative convenience i) is the state‘s burden to show the ―fit‖ is correct; that regulation is justified (3) Intermediate Scrutiny → Craig v. Boren (1976): Men under 21 could not buy 3.2% beer; women can buy beer after 18. State justification: traffic safety [nb: health/safety/welfare is not always a compelling state interest] (a) Held: Violation of EPC. ―Fit‖ is not narrowly tailored + purpose of law is not related to the means. Only 2% more males than females arrested for drunk driving. Not enough to justify gender distinction. i) Also problematic b/c this is based on gross stereotypes that this is about allowing young girls to marry and drink w/ their husbands (b) Alternatives: Stiffen penalties, more cops, education (c) Under/overinclusiveness → bad fit or congruence (d) Stevens/Rehnquist: Setting up tests of levels of scrutiny is ill-advised. Beginning to invite judicial subjectivity


(4) Applying Intermediate/Middle-Tier Scrutiny Classification Fit Govt‘s Interest Mid-level Substantial Important (a) Miss. Univ. for Women v. Hogan (1982): [Public] nursing school for women. Man tries to apply, is denied admission and sues. State‘s justification- compensation for workplace discrimination against women → (unsupported since 90% of state‘s nurses were female) i) Held: Violates EPC under middle-tier level of scrutiny. ii) Perverse result: By applying mid-level scrutiny, it is actually easier to help women than to help race discrimination since a lower burden on the state to show fit and govt interest. (b) US v. Virginia (1996): Virginia Military Institute (VMI) trains men to be ―citizen-soldiers.‖ State interest: leadership, high sense of public/military service. Ct. App. found this violated EP and ordered VMI to either admit women or create a comparable institution for women. All-women‘s liberal arts college created. i) Held: State has not provided the court with “exceedingly persuasive justification”. (A) Nothing to indicate that only men are deserving of soldier training. Not necessarily advancing the state‘s goal by excluding women (B) Notion that hazing/adversarial training won‘t work w/ women present is based on out-moded stereotypes → Blanket prohibition is using women as a proxy—need a tighter fit. ii) Remedy also insufficient. Remedial program is NOT equal. (A) VWIL does not offer adversative training. (B) Also consider tangible/intangible factors such as facilities, faculty numbers, alumni network access (c) Analysis: MIDDLE-TIER SCRUTINY Midlevel classification is subject to heightened scrutiny; i.e., must be: i) → substantially related to accomplishing ii) → “important” government interest Whether affirmative or negative act Remedies short of integration must provide substantial equality re: tangible and intangible goods (d) Analysis: IMPORTANT GOVERNMENT INTEREST i) exceedingly persuasive ii) genuine, not invented post hoc to respond to litigation (look @ moments before the situation is made)


not reliant on overbroad generalizations/outdated stereotypes re: difference

Specific important governmental interests OK:  Compensate for particular economic disabilities  Promote job opportunity  Advance development of individuals NOT OK:  Create or prolong inferiority b. Classifications That Have a Disparate Impact upon Women (1) Gedulig v. Aiello (1974): CA disability insurance program paid benefits to persons temporarily disabled from work, but excludes pregnancy. π argues: gender-based classification. Govt interest: $$, since large number of women will get pregnant. (a) Held: Classification is really about pregnant v. non-pregnant people, NOT sex-based discrimination (b) Only needs rational basis scrutiny (c) No showing of invidious intent to discriminate (2) Personnel Administrator of Mass v. Feeney (1979): Mass law has a preference to give extra points to veterans. π, a woman, tests high on civil service, but is bumped down the scale in deference to veterans. State actor: dental examiner. (a) Held: Survives rational basis scrutiny: studies show that veterans were having trouble getting jobs after service. (b) Classification is veterans v. non-veterans (c) Fit: reasonable (d) Also, could be a national security interest in giving benefits to veterans (3) Analysis of above cases: Categories (pregnancy, veteran status) have strong sex-based correlation, but court chooses not to see it as sexbased. Facially neutral classifications, with no discriminatory purpose against women. INVIDIOUS DISCRIMINATORY INTENT? (a) facially suspect classification OR (b) facially neutral, but: π shows intent “a” motive; i.e. “b/c of” such intent factors:  disproportionate impact (e.g. Yick Wo)  clear pattern otherwise unexplainable (e.g. why only chinese launderers not qualifying for a permit)

  

sequence of events to decision/act (e.g. history of hostility towards chinese) procedure, substance departure (e.g. suspension of procedures, decisions behind closed doors) statements at decisionmaking (e.g. one person saying the ‗real‘ reason, can suspect that other decision makers are saying the same thing)

→ at middle-tier scrutiny, court is less suspicious and more willing to accept the facial neutrality c. Critiques of Abstract Equality and the Emergence of a Jurisprudence of Difference (1) Idea: Sex must be taken into account when the state makes its decisions (a) Based on the notion that EPC requires substantive justice (b) Rationale: i) Long-rooted history of subordination of women and inherent differences b/t the sexes ii) Only remedy is through state action in favor of women (2) Bray v. Alexandria Women’s Health Clinic (1993): Bray, Δ, is in a private anti-abortion group who tried to stop women from traveling interstate to abortion clinics. Clinic claims deprivation of their civil rights [42 USC § 1985(3): “If two or more persons conspire or go in disguise on the highway…for the purpose of depriving…any person of the equal protection of the laws…”] (a) Ct: Classification is women seeking abortion v. everybody else—no sex-based discrimination present (b) No evidence that Δ discriminates against all women (3) US v. Morrison (2000): Female student raped by two football players. Had a school hearing and one player was suspended for two semesters, which was later repealed. Victim/US sue the university and Δs under the federal Violence Against Women Act (VAWA), which gives a civil remedy for a crime of violence motivated by gender hatred. (a) Held: Statute is unconstitutional b/c this is an improper application of 14th A—i.e. 14th A does not regulate ―private‖ action (b) No state action –victim could have only sued the state officials who failed to punish the guy—not the guy (c) Counter: In enacting the VAWA, Cong. was ―enforcing‖ the EPC b/c it was compensating defaults in state protection of women against violence i) But the inability of states to protect women against private violence does not create additional congressional authority B. ―Other‖ Suspicious Classifications 1. How to determine what classification applies a. Factors (1) Like race


3. 4. 5.


(2) Immutable (3) Accident of Birth (a) Religion usually included here (4) Discrete minority (a) Set apart in a visible sense (5) Insular minority (a) Isolated from the dominant culture—like a linguistic minority (6) Past discrimination (7) Gross stereotypes (a) Not being treated as an individual (8) Irrational prejudices (a) That these ppl deserve this classification (9) Politically powerless Alienage a. Different treatment for legal noncitizens (v. legal citizens) b. Strict scrutiny applies unless a national interest—then rational basis (1) Federal interest → rational basis scrutiny (a) Presumption that the feds are protecting our border, thus, national security is implicated (2) State/local interest → strict scrutiny (a) e.g. A state law requiring US citizenship for welfare benefits, civil service jobs, or a license to practice law will be struck down b/c no compelling interest (b) Exception: If a law discriminates against alien participation in the functioning of the state government, then apply rational basis Birth to Unmarried Parents a. Ct inconsistent as to what level of scrutiny b. Accident of birth → intermediate level? Age a. ALWAYS rational basis b. But ct is inconsistent Wealth a. Rodriguez: Tx school district where the quality of public education varies by neighborhood/tax base. Held: No constitutional violation (1) Wealth is not a fundamental right (2) Ct. also says that education is not a fundamental right (against Brown??) b. MLB: Child taken from mother, she loses @ trial. Cannot afford to appeal b/c can‘t afford the transcript (1) Held: Heightened scrutiny here (2) Wealth is conjoined w/ a right to have a family (a) Classification alone is ordinary rational basis (b) BUT…sometimes wealth classification will be unconstitutional if wealth is a cognizable claim Physical or Mental Disability a. City of Cleburne (1985): P: Cleburne Living Center, a group home for the developmentally disabled. D: City of Cleburne. Dispute: A requirement in the zoning regs that require a special use permit for the ―feeble-minded.‖ Group

home permit denied b/c neighbors didn‘t want it, fear jr. high students would harass occupants, risk of flood, size of home and # of occupants. (1) Here, ―semi-suspect classification‖—not quite the next level (a) Present here: immutable, accident of birth, past discrimination, gross stereotypes, irrational prejudices (b) Not necessarily present: discrete (depends on the condition), Insular (usually disbursed throughout community, and later become insular), politically powerless (but direct participation is not necessary as demonstrated via fed/state remedial legislation) (2) Strange result if only two levels of scrutiny—would always depend on the classification to see whether govt wins or loses (a) Would probably survive rational basis review. Zoning is a governmental concern, and the method is reasonable (i.e. limiting the ## of ppl in certain areas) (b) Would probably not survive strict scrutiny. No compelling interest, and there are alternatives to accomplish this (i.e. not necessary). (3) Ct admits that the trait justifies differential treatment, but hesitates on the heightened scrutiny b/c of the ―passing‖ phenomenon (i.e. Plessey)—idea that you can‘t generalize what this group will look like (a) Policy implications: fears a slippery slope—that this group will become so elastic that the characteristic doesn‘t always play out to justify the classification (b) Does not want to invite litigation (c) Also, this group already has political power → should NOT want higher scrutiny (4) Wrong result if this was only rational basis (i.e. city would lose)…so court engages in a review of the city‘s justifications (a) Discounts flood plain argument (b) Neighbors—irrational prejudice (c) Junior high—like cooper v. aaron, cannot give in to mobs; must protect ppl & punish the wrongdoers (d) Size-since other homes let into the neighborhood, this is based on prejudice b. RATIONAL BASIS W/ TEETH SCRUTINY—Classification not suspect enough for middle tier scrutiny, but still of concern [mentally retarded, post-lawrence, sexual orientation?] will not satisfy the EPC unless → demonstrably reasonably related to → real & legitimate govt purpose Court will not automatically defer to the legislature—less deference to the legislative wisdom (1) In reality, discourse is like rational basis—but the result is no longer guaranteed 7. Mingling Equal Protection and Fundamental Rights a. Skinner v. Oklahoma (1942): Habeas proceeding. Skinner in jail. Williamson (custodian/warden). Okla steps in on behalf of Williamson. Skinner convicted of robbery w/ firearms (twice) and stealing chickens. State wants to sterilize

him under Okla state law which authorizes sterilization for criminals of a moral turpitude. Several constitutional issues at question here. (1) Ct reads this as an EPC case. Procreation/marriage = fundamental right (2) Also arbitrary distinction b/t the crimes that qualify for sterilization (i.e. larceny v. embezzlements) (a) No equal protection of the law b/c of irrational differentiation of crimes that qualify for sterilization AND what is at stake (i.e. a fundamental right) (b) e.g. of judicial activism i) Ct takes the wealth classification and melds it w/ the notion of fundamental rights so that the statute can be overturned. (3) Arises out of Buck v. Bell—Compulsory sterilizations for the developmentally disabled. Woman has a child out of wedlock, and is thought to be developmentally disabled and is sterilized. (a) Holmes—judicial restraint 8. Sexual Orientation a. Federal Law (1) Griswold v. Conn (1965): Prosecution of a physician for supplying contraceptives to a married couple. Held: Conviction overturned b/c invades the privacy of the marital bed (i.e. the decision of a married couple to have sex to procreate or not) (a) Begins the notion that family life, intimacy, is not one that the govt ought to intrude on (2) Bowers v. Hardwick (1986): Georgia statute declaring sodomy—for homosexuals OR hetereosexuals--illegal. P conditionally charged and charges brought, but prosecution dropped. P and cop had a history. P files declaratory judgment action to determine the constitutionality of the law. (a) Held: No fundamental right to engage in sodomy (3) Romers v. Evans (1996): ―Colorado for Family Values‖ wants a constitutional amendment that overturns local ordinances protecting against discrimination against homosexuals. [city jobs prohibit employment discrimination + zoning prohibits discrimination against families, race, gender, homosexuality] Proposed amendment was to respect other citizens‘ freedom of association, and the liberties of landlords/Ers who have objections to homosexuals. (a) Held: Amendment violates the EPC (b) [EPC] forbids govt law/policy by which homosexual/lesbian/bisexual orientation, conduct, practices, relationships are the basis by which persons may have or claim minority or protected status, quota preferences, or discrimination. (c) RATIONAL BASIS. No legitimate interests i) Indicates that S.Ct is starting to think of homosexuals differently than other groups (e.g. people who read comic books) ii) But like Clegburne, apply rational basis and the govt loses

Scalia‘s dissent: Moral judgments are made all the time (e.g. in criminalizing murder, prostitution), and are based in religion. Should only talk about rational basis when the right at issue is NOT fundamental. a) Bowers indicates that homosexuality ≠ fundamental right (d) HYPO: What‘s next? If someone is gay, can they remain in the military? i) On a Romer analysis, no real & legitimate govt purpose. BUT, legitimate govt interest in ―national security‖ (4) Lawrence v. Texas (2002): Tx statute punishes same-sex sodomy. (a) EPC argument: i) Classification—is it constitutional? ii) Govt interest—can govt regulate morality? If so, to what extent? Is morality a legitimate govt purpose? a) Ct: agrees that in the abstract, it is ok for govt to legislate morality b) BUT…can‘t have as the ONLY interest = morals IF the result creates an underclass and singles out a single group (b) DPC argument: This statute isn‘t enforced enough; thus, invites arbitrary behavior by govt officials. Offends low-level DPC. i) Having the statute on the books makes it available for law enforcement to harass behavior they don‘t like ii) Essentially an invitation to single out an individual for prosecution (c) Debate over whether to overrule Bowers i) No a) O‘Connor: save it for later. Bases this on stare decisis and the need for predictability b) Scalia: Also concerned w/ stare decisis. Also discusses the implications for Roe v. Wade since Casey was decided based on stare decisis from Roe. Also pissed b/c majority never declares this a fundamental right All governmental interest in legislating morality is in doubt ii) Majority—YES a) Looks to Chief Justice Burger in Bowers: This is deeply rooted in civilized people b) Kennedy‘s majority opinion: refutes that this behavior is rooted in (1) history; (2) values of western civilization--looks to intl norms aa) This referral to international jurisprudence may return in the Guantanamo cases. bb) Also is a new bill proposal which would prevent foreign law in S.Ct. unless the law is referring to the original meaning.


(d) Limits to this opinion. Doesn‘t involve non-commercial prostitution, minors, non-consenting adults i) b/c of these limits, ppl then turn to the state courts and state constitutions to give more rights b. State Constitutional Treatment (1) Massachusettes (a) Massachusettes constitution → aspirational document. ―Happiness‖ is a constitutionalized right (b) Challenge to statute (?): ―No law can limit marriage to a man and a woman.‖ (c) Mass S.Ct: Appears to apply RATIONAL BASIS w/ teeth. Takes a hard look @ govt interest. Refutes alleged govt interest i) Desire to create favorable setting for procreation. Mass S. Ct: Marriage licenses sole purpose is not procreation [refutes catholic teaching that sex is only to procreate]. Civil marriage is secular ii) Best interests of the child to have two parents of opposite sex. But Mass allows for same-sex foster parenting/adoption, single-parenting, divorced parenting. Invalid classification b/c marriage does not advance the interests of a two parent family iii) $$--preserving scarce state and private financial resources. Mass S.Ct: No, and civil unions are not enough b/c don‘t confer the intangible benefits of ―marriage.‖ c. Interplay between Federal and State Constitutional Treatment (1) SF/Mayor Gavin Newsome‘s Actions (a) 2/10/04: sends a letter to the city clerk to issue marriage certificates to same-sex couples. The first couple is married two days later. (b) Even though CA initiative states, ―Only a marriage b/t a man and a woman is valid and recognized in CA.‖ i) AG‘s job is to enforce properly passed laws in CA (c) SF City‘s argument: CA constitutional law has an EPC + CA case law gives higher scrutiny w/ discrimination against homosexuals i) CA Constitution. § 1, sec. 1: Inalienable rights…aspirational. ―Happiness + privacy‖ are constitutionalized (d) But procedural complaint: Executive officer is taking the right to interpret the constitution i) e.g. Cooper v. Aaron: Gov‘r Faubus blocks school children from letting kids into school b/c he takes the initiative to interpret the law—contrary to the S.Ct ii) Newsome argues: Distinct b/c there has been no federal or state court decision here iii) Is this like Pres. Bush‘s interpretation on the enemy combatants case?? a) Is the executive beginning to assert constitutional interpretation that circumvents the courts?? (2) Federalizing this issue

(a) Do not have 5 judges to recognize gay relationships i) Scalia: No fundamental right or national consensus. No c/l history to have this right. ii) Also may look @ trend amongst the states to see whether the right is now recognized as a fundamental right. (b) re: Federal constitutional amendment i) Full faith and credit clause argument: judgment in one state must be honored in another state ii) New constitutional amendment opposing gay marriage? a) Needs Congressional approval + each state‘s ratification w/ a supermajority Strict scrutiny Middle Tier Rational Basis w/ Teeth Scrutiny Rational Basis CLASSIFICATION ―Suspect‖ Midlevel Maybe suspect Not suspect FIT Necessary Substantial Demonstrably reasonable Any reasonable GOVT INTEREST Compelling Important Real & legitimate Any legitimate

First Amendment—Free Speech
I. Free Speech and Competing Values A. Revolution: Immediate history to govt backlash B. Advent of the printing press → ability to mass produce verbal communication 1. Concern b/c could reach more people faster 2. Also can‘t control who is getting the ideas or dissemination of info a. Govt sees this as a threat to their authority (1) Begins issuing licenses to those who are allowed to print (2) Also uses censors, govt officials who controlled what was distributed C. Blackstone: having censored info, is a violation of the c/l—i.e. it is wrong to punish after the fact [or prior] 1. Punishing speech prior to the fact—Today, little room in interpretation of this amendment for pre-restraint a. e.g. Pentagon papers case: govt tried to w/hold publication on the Vietnam War b. e.g. Progressive Magazine: trying to publish a recipe for hydrogen bomb. 2. Punishing speech after the fact—i.e. publication goes out and then dole out the punishment a. Flag burning/cross burning b. Libel/slander c. Obscenity/Child porn D. Basics 1. Text: ―Congress shall make no law…abridging the freedom of speech.‖

a. Rationale: Speech contains or provokes ideas that can lead to social or political effect, including self-governance, discovering the truth/ideas, advancing autonomy, promoting tolerance. 2. 1st A GUARANTEES APPLY TO THE STATES AS PROTECTIONS ASSURED BY THE DUE PROCESS CLAUSE OF THE 14TH A a. Substantive rights includes everything in the 1st A (1) Religion also included in the Amendment (2) Amendment is about individual space and individual autonomy b. ―No law‖ goes to the states c. ―Abridge‖ is not an absolute prohibition 3. Free speech rules apply to conduct when the conduct has major expressive component II. Regulation of Harmful Messages A. Illegal Advocacy 1. Illegal Advocacy = Words that encourage others to break the law 2. Evolution of the law a. Learned Hand‘s Masses Test (1) Govt may make a crime of direct incitement to violent resistance to the law b. Clear and Present Danger Test:--Justice Holmes (1) Govt may make it a crime to speak words used in circumstances and of nature to create clear and present danger—i.e. speech will bring about preventative substantive evils (2) CLEAR = degree (3) DANGER = proximity in time c. Thus, tension b/t statists and libertarians---how far to tolerate dissent? 3. Brandenburg v. Ohio: OH criminal syndicalism statute. [It is a crime to engage in: (a) advocating duty/necessity/propriety of a crime/sabotage/violence/ terrorism to accomplish industrial or political reform AND (b) voluntarily assembling w/ a group formed to teach criminal syndicalism] Here, Δ, a KKK leader, convicted. Evidence was KKK events filmed on TV, where leader advocated, ―Let‘s march and destroy the groups we hate. Let‘s take revenge…there ‗might‘ be action taken.‖ Held: Statute unconstitutional b/c focuses on advocacy, not the incitement to imminent lawless action. a. Ct attempts to establish a BLR for predictability (1) 1st A law is always concerned about the CHILLING EFFECT—i.e. when one can‘t tell is the speech is protected, the danger that ppl will err on the side of silence. (a) This burdens the free market place of ideas (2) Thus, here, applies message that free speech = free speech b. Govt MAY make it a crime to engage in advocacy that is: (1) „directed to incite” or produce imminent lawless action; and (2) likely to incite or produce such action (3) Thus, need to show proximity (danger) and degree (clear). Would be tough to prove px cause. c. Criminalizing ―mere abstract advocacy‖ unrelated to any tendency to produce forcible action, violates the 14th A.

d. 3d party at play? Here, not action directed at the state. KKK is attacking society‘s elements e. Also, does this implicate the EPC? i.e. individual liberty v. govt security OR individual liberty v. individual liberty of the victim 4. ICTR & prosecution for ―incitement to genocide‖--as a comparison a. Prosecutor v. Ruggiu: Δ, Ruggiu, Belgian. Δ is a radio broadcaster in Rwanda. never killed anyone or gave a direct order to kill, but broadcasted, ―go to work‖ and ―have a good time killing inyenzi (cockroaches).‖ Ct accepts his plea of guilty for (1) incitement to genocide and (2) persecution as his crime against humanity. (1) Legal std for incitement to genocide (a) US: Direct and public incite to commit genocide (b) ICTR: Crime to directly and publicly commit genocide AND specific intent as the genocidaire (i.e. the person doing the killing). Also, does not matter if it produces the result. i) This would not work in the US under Brandenburg. Needs to be directed to incite or produce imminent lawless action and is likely to produce action. Under Brandenburg, if no result → just mere advocacy. (2) Is this conviction proper? (a) Possibly can be ok w/ result, even if not ok w/ the std (b) Clear = ―direct‖ incitement to violence i) Evid: ―Go to work‖ = orders to kill; Cockroach = Tutsi; Show common knowledge of what these phrases meant (c) Present danger = is the conduct enough to show present danger? i) Context—the existence of lawlessness, fact-specific. History of ethnic strife, only two radio stns in the entire country + no tv; Also, easy to mistake this broadcast as the govt‘s. ii) Here, no free marketplace of ideas. Thus, people are more susceptible to messages b. International courts don‘t usually wait until the threat becomes imminent b/c of the history of the Holocaust. Also belief that danger is always present—need to prevent hate acts B. Thus, to succeed against Brandenburg, argue the FACTS. The other side‘s argument is basically, ―oh, come on…‖ III. Obscenity and Indecent Speech A. In general, obscenity is not protected. 1. BUT…all sexually explicit material ≠ obscene 2. Distinction b/t pornography and obscenity (unless child porn involved) a. Porn thought to have social value in sex education; medical journals, literary/artistic impression b. Ct struggles w/ how to define obscenity (1) e.g. Nudity alone ≠ obscene 3. Ct has different levels of tolerance for 1st A regulation depending on the penalty. e.g. criminal prosecution or zoning?

4. Chaplinsky v. NH (1942): 1st A is NOT ABSOLUTE. Is constitutional to prevent or punish ―well-defined, narrowly limited classes of speech.‖ a. e.g. Not protected: ―the profane,‖ ―libelous speech,‖ ―insulting or fighting words,‖ ―Lewd and obscene‖ b. Rationale: Not an essential part of the exposition of ideas. That speech has such slight social value as a step to the truth that the benefit is clearly outweighed by social interest in order and morality. c. Post-1942: See a shift in definitions. Also a challenge to whether the 1st A is only about the free marketplace of ideas B. Miller v. CA (1973): Miller producing pamphlet advertising ―dirty‖ books and videos. Arrested under CA penal code which makes it a misdemeanor to knowingly distribute obscene material. 1. Ct tries to define obscenity b/c due process reasons (need ―fair notice‖ of what‘s criminal and not), and need to decide if ideas have value (do not want to inhibit ppl if there is value) 2. Holding: Conviction for a crime is ok IF a. The average person, applying contemporary community stds, would find that the work, taken as a whole, appeals to PRURIENT CHARACTER (1) Less protection for booksellers b/c applying a community (not a national) std. Since those rural communities were the only ones prosecuting for this anyway, with a national std they are forced to use more liberal stds (2) More protection to booksellers b/c taking the work as a whole (3) Prurient = response needs to be unusual, inordinate or perverted b. Work depicts/describes, in patently offensive way, sexual conduct specifically defined by applicable state law, and c. Work lacks SLAPS (serious, literary, artistic, political, or scientific value) 3. Thus, a pornographer could avoid this test by adding articles to the mix (e.g. Cosmo, Playboy) C. Miller test applies to sellers and buyers 1. Paris Adult Theatre I v. Slaton (1973): About the right to purchase obscene materials. Held: Need for autonomy and privacy DOES NOT allow you to purchase these materials. 1st A does not protect the purchase of obscene materials. 2. BUT…Can‘t prosecute for the possess of obscene materials if they are found in a private home a. Stanley v. Georgia (1969): Police searching home for gambling stuff and find obscene/dirty videos in the home. Prosecuted for possession of videos. Held: Unconstitutional. Individuals have the right to do whatever in their own private space (1) This implicates the personal autonomy value [inherent in the 1st A]. (2) Imposes a BALANCE on Chaplinsky (a) Rationale: Ideas don‘t just happen. Notion of thinking about things, especially in solitude (b) Sorta like human rights law: concept of the liberty of conscience (c) Also like Thurgood Marshall‘s idea: We have the ability to form our own ideas/thoughts/values before engaging in the marketplace

(d) Like lawrence v. tx: what happens in one‘s own bedroom is not the court‘s business. 3. Post-Miller Clarification #1: Personal privacy and autonomy Miller test applies to sellers and buyers. - no 1st A right to buy obscenity (Paris Adult Theater) - Govt interest in suppressing crime by regulating the market for obscenity is weightier than personal interest in buying the obscenity BUT… 1st A does preclude the govt from making possession of obscenity in one‟s own home a crime (Stanley) D. Child Pornography—Sexually explicit material that involves in production OR depicts children. 1. Miller: Not all porn is illegal 2. NY v. Ferber (1982): NY statute banning child porn (i.e. porn involving children as models/actors). Held: upheld conviction. govt interest: protect children. a. BALANCING TEST. Here, balance falls in favor of state interest (1) 1st A values: freedom of expression, liberty of consciousness (2) State interest: Protect children from involvement in sexual activity; Prevent exploitation in production/distribution. b. These materials would not be considered obscene under Miller. (1) Thus, this would probably be ok if only adults were involved here. 3. Ashcroft v. FCC (2002): Virtual child porn by computer drawings & morphing adults into kids. Held: This is ok. a. Under Ferber rationale—no support for banning this porn b/c no actual children used (1) But Ferber still permits prosecution for things that involve children. (2) Thus, if no child actors then no harm b. Govt also argues that the state also has an interest b/c it may excite pedophiles or give them the idea that this is permissible or enables pedophiles to convince kids that this is ok behavior (1) Kennedy: No: there are other ways to lure kids. (a) In order to allow this test, must pass the Brandenburg test (imminency of lawless behavior) (2) Also, no statistics to show that watching this leads to this behavior (3) Ct is skeptical of other claims of harm c. BALANCING TEST—falls on 1st Amendment liberty 4. HYPO: Would the 1st A protect ―American Beauty‖ (movie where father fantasizes about daughter‘s friend; nudity involved)? a. Argument that 1st A does not involve American Beauty in an attempt to suppress child porn b/c child porn is not speech (1) Narrow definition of speech as words spoken or printed on paper. Thus porn would only be considered conduct (a) Message is unknown until you talk it out w/ the conduct—arguably like burning a draft card, where you don‘t know the meaning (2) But this argument doesn‘t work b/c framers must have meant a liberal meaning of ―speech‖ and ―press‖—i.e. notion that speech is expression

5. Butler v. Regina: Canadian statute bans ―obscene materials.‖ Δ owns an adult video store. Ct: Affirms conviction. a. Would this happen in the US? No b/c would not pass the Miller test. b. Canada concerned w/ the effect of having this stuff—that it is degrading and dehumanizing to women (1) Post-Ferber: US S.Ct wants hard and empirical evidence of the effects. (2) Here, too hard to generalize women here and prove vulnerability E. City of Renton v. Playtime Theaters (1986): Renton, a suburb of Seattle, passes a zoning ordinance prohibiting adult theaters w/in 1000 feet of any residence, church, park, school. Most films shown in adult theaters ≠ obscenity under Miller. Thus, it is protected speech. 1. Held: Balancing test for speech. 2. Ct requires argument by the state that their method/rationale advance a SUBSTANTIAL GOVERNMENT INTEREST a. Uses the term ―fit/narrow tailoring‖ = includes a notion that we need reasonable avenues of communication for the speech to be expressed. b. Here, there are reasonable alternatives—i.e. other physical areas on the map to have these theaters. Does not matter that the prices of the real estate in those areas are high—1st A does not require that we give bargain prices for this—as long as a market exists. (1) If the reasonable alternative exists, then ct will defer to it. (2) This analysis is more lenient than EPC i) Compare with Cleburn and Croson ii) Also, Renton based studies on Seattle (very different community). Ct: Ok. Local findings are unnecessary. iii) Ok for let cities choose different methods to mitigate secondary effects (e.g. Seattles ―red zone‖ v. Renton‘s disbursed design) 3. Ct also attaching levels of scrutiny or a ―tiered‖ approach. a. CONTENT-BASED: strict scrutiny b. CONTENT NEUTRAL (i.e. limiting speech for other reason besides content → secondary effects): intermediate level of speech (1) Usually permissive if the regulation goes to the health/safety/welfare of the state (2) 1st A & Content Neutral Regulations on Speech Govt is permitted to regulate IF - content-neutral speech, i.e. predominant govt concern is not the suppression of speech, rather goals unrelated to speech - if so, considered, “TMP”, not content-based, restriction (3) Test—looks like intermediate level of scrutiny Govt permitted to regulate if the law is Designed/narrowly tailored to serve a substantial important govt interest Leaves reasonable alternative avenues of communication (4) Reasonable Alternatives → Reasonable opportunity to engage in particular kind of speech w/in governmental unit (e.g. city)

“Speakers” subject to market like anyone else, but governmental regulation may not effectively suppress/greatly restrict access to lawful speech. IV. Fighting Words, Captive Audiences, and Offensive Speech A. The Fighting Words Exception 1. 1st A does not protect “fighting words”; words that by their very utterance cause a reasonable person to a. inflict injury OR b. tend to incite immediate breach of peace 2. Cohen v. CA (1971): In LA city courthouse. Δ wears jacket ―Fuck the draft.‖ Arrested as leaving the courthouse under CA penal code that prohibits ―incitement of peace, by offensive conduct.‖ a. Held: Conviction is unconstitutional. Govt‘s case lacks ―particularized & compelling reasons for its actions‖ (i.e. little categories of speech that may be suppressed), cf content based, unprotected speech categories (1) No evid of intent or tendency to incite violence/unlawfulness (thus not w/in Chaplinsky or Brandenburg) (2) Not obscenity b/c not sexually explicit or erotic in this context (3) Not defamation or libel (doesn‘t hurt any particular person) (4) Fighting words—no b/c no one reacts to this ―speech‖ (except the bailiff). But even then, bailiff didn‘t breach the peace → THUS, CONTENT-BASED WAYS TO REGULATE SPEECH ARE OUT b. This is not a content neutral statute (1) Not a TMP restriction—i.e. not limited to the courthouse only. Statute is too broad. (2) Harlan: 1st A doesn‘t regulate ―taste‖ or ―style‖ – emotive force of speech matters. (a) Don‘t want the govt to regulate taste b/c may over-censor a person b/c they may not be able to discuss something ―properly.‖ Would exclude them from the discussion c. No ―captive audience‖—presumed presence of unwilling viewers is no automatic ok to curtail. (1) Not an intrusion into home (2) Viewers easily could avert eyes (3) In the courthouse, can come and go. No fit here. d. Cohen focus → hearer (i.e. does the speaker‘s insult provoke a reasonable hearer to imminent violence v. speaker) v. Brandenburg focus → speaker (i.e. does the speaker‘s advocacy intentionally provoke hearer to imminent violence v. others) 3. 1st A and Offensive Speech Govt may not suppress/punish speech that offends some, yet does not fall w/in “unprotected” category Govt MAY regulate some speech in content-neutral TMP fashion B. Offensive Speech in the Electronic Media


1. Issue: should the std change when the media is electronic? a. No: Give speech more room if the concern is w/ whether the hearer will punch the speaker. Less threat of imminent violence b. Yes: TV/radio/internet: More pervasive & tougher to shut down. Easier to access. Less control for selves—it comes at you and you can‘t change it. 2. Pacifica (1978): George Carlin recorded a monologue featuring seven dirty words. Pacifica radio plays this. Father complains to the FCC. Held: FCC can regulate ―indecent speech.‖ a. Rationale: Concern of children; Privacy of home (fact that medium goes into the home, right to decide the education of your children)….captive audience problem b. Overlay: Red Lion Broadcasting Co (1969): ―fairness doctrine‖—Give equal time to opposing viewpoints on important political issues. (1) Rationale: Scarce Resources (i.e. limited numbers of frequency). Closed market = more room for regulation (2) Political speech = high priority speech 3. Sable: Cyberspace is like print media. But other concerns like pop-ups make it like broadcasts a. Fact-specific—as technology keeps changing b. The more ability ppl have to stay away—i.e. make independent decisions—the more this is treated like a marketplace of ideas (1) Under the traditional doctrine, only can be limited by a ―punch in the nose.‖ But would probably need to stretch this test to limit speech. 4. hypo: FTC: sex-based spam must have warning. Can the govt regulate this? a. State action? Need a govt actor (unless implicating the 13th A) b. Is it speech or press? c. Content-based or content neutral? (1) Content based (a) If yes, then two questions: i) Unprotected speech category (i.e. the state‘s interest in regulating dangers of this speech → compelling [e.g. imminent or immediate harm from fighting words]. If yes, then it is ok to sanction ii) If protected, presume protected and not ok to sanction (b) Level of scrutiny: Strict i) Need compelling interest + narrow tailoring (2) Content neutral (a) Level of scrutiny: Midlevel i) e.g. child porn, focus is on secondary effects, thus, regs should try to minimize harmful effects 5. Indecent speech summary a. Not protected b. Then, subject to strict scrutiny c. Exceptions: (1) TMP regulation (2) Captive audience Speech with a Government Nexus

A. Public Forum Doctrine 1. Does the govt function as SOVEREIGN or PROPRIETOR? a. Sovereign: Suppresses, regulates, harmful, low-value speech in public interest. → Then 1st A content-based, content-neutral rules apply → If content based restriction, does it survive the presumption that the govt can‟t regulate content? Or is it fighting words, obscenity, libel? b. Proprietor: Govt engaging in activities that private citizens engage in-e.g. landlord, educator, employer, patron → Query: Is the govt a private actor, not bound by the 1st A? Then need to figure out whether the space is considered a traditional public forum or not. (1) Potential 1st A duty of govt as proprietor (a) 1st A ALWAYS binds the govt i) Rationale: Govt has monopoly on public force, thus, is not like a private actor (b) 1st A NEVER binds the govt i) Rationale: Govt decides what to sponsor on its turf 2. Is it a public (i.e. traditional 1st A rules) or non-public (i.e. govt can act like a private actor) forum? a. Traditional public forum (streets and parks) AND intentional/designated / limited public forum (public theaters, public school, film series) (1) General rule: TRADITIONAL PUBLIC FORUMS MUST BE OPEN TO SPEECH (OR ANY OTHER PEACEFUL EXPRESSIVE ACTIVITIES) (2) Regulation must be (a) Content neutral i) Narrowly tailored to serve a significant government interest ii) TMP regulation is ok → regulation need not be the least restrictive means of accomplishing the goal. The reg may not burden substantially more speech than is necessary to further the significant government interest iii) Leave open alternative channels of communication b. Nonpublic forum (1) e.g. Airport, military bases, mailboxes (2) Govt can regulate speech here if rsbl (basically a rational basis test) (3) BUT No viewpoint discrimination (usually fatal, strict scrutiny) (a) e.g. Content → limiting all categories (e.g. all religious speech, all political speech) (b) e.g. Viewpoint → Limiting one viewpoint w/in a category (e.g. prohibiting Christian speech) 3. Federal v. CA rule: a. Fed rule: If it is private, it is off-limits (even if there is public stuff going on there or it does a traditional public function)

b. CA rule: Unless notice given (i.e. that owner reserves the right to limit access), must allow ppl on—if a traditional public function 4. US v. Grace: Woman wants to pick the S.Ct. held: Yes, she should be allowed to be on the sidewalks. Refutes the argument that the S.Ct should not be swayed by public protests—even if listener doesn‘t listen, ppl should have the right to talk. 5. Ward v. Rock Against Racism: Central Park bandshell. Requires groups to use their sound technician. Rock wants to do a concert w/ their own sound technician. Held: Regulation is ok. a. Viewpoint discrimination argument: some music needs to be loud to enjoy it (e.g. punk) b. Ct: This is a content-neutral regulation. Thus, it requires substantial govt interest, but narrow tailoring. [Ct starts at intermediate scrutiny, but has elements of strict scrutiny] (1) re: Narrow tailoring: Is a reasonable alternative available or a ―less restrictive means‖ ? (differs from EPC definition of narrow tailoring as a least restrictive means) (a) Here, having a city technician is not the least restrictive means. It is a LESS RESTRICTIVE MEANS → midlevel scrutiny language. (b) Least restrictive would mean that rock could bring its own technician. VI. B. Unconstitutional Conditions Symbolic Speech—or Hate Speech? A. Flag-burning is protected speech under the 1st A 1. Texas v. Johnson (1989): Flag burner convicted under statute which makes it a misdemeanor to desecrate, intentionally or knowingly…a state/national flag. Δ burns the flag in protest, and on-looker is offended and takes the flag home to bury it. a. Held: Flag burning is protected speech. Defer to the marketplace of ideas. Notion that in a free market, the exchange of ideas leads to the truth. The remedy for ―bad speech‖ is stimulating more speech into the marketplace. (1) Kennedy: 1st A is about having to listen to horrible speech (a) Ct fears the chilling effect (2) But, govt can regulate, if at some point, the market becomes so unbalanced that rational speech has no chance. B. Hate speech (content-based restriction) 1. In general, it does not meet the exceptions to when govt can regulate…fighting words, obscenity, libel. a. Comes close to fighting words, but Brandenburg, need imminent violence b. If, on the facts, there is an assault or battery, then it will be easier to prosecute on those charges and not the 1st A. (1) But if assault accompanies hate speech, can attach motivation as haterelated c. But for policy reasons, probably do not want to wait until actual violence. (1) Want to avoid fear, creating a hostile environment (2) Don‘t want the appearance that govt is endorsing the speech or threats (3) Issue: how long do you have to wait until the ―harm‖ has occurred?


(a) Consider: Attempt doctrine (crim law)—the point at which there is enough circumstantial evidence to concede harm (b) Thus, under Brandenburg, STATE USUALLY LOSES b/c tough to speculate whether there was a danger of harm i) But perhaps if other perspectives are articulated (e.g. from the victim), then can see the harm a) e.g. Justice stevens, a WWII vet, who wants to create an exception for the symbol of the flag 2. Cross-burning cases a. RAV v. City of St. Paul: St. Paul‘s ―Bias Motivated Crime‖ statute makes it a misdemeanor for (disorderly conduct) to place on public or private ppty/ a symbol, object, etc., including but not limited to a burning cross or swastika / knowing or w/ rsbl grounds to know it / arouses others‘ anger, alarm, resentment on the basis of race, color, creed, religion, gender. (1) Held: (Scalia‘s opinion): This is content or viewpoint-based which discriminates on the reasons individuals display the symbol (e.g. movie on WWII in a university class). Does not refer to all viewing/display of swastikas or burning crosses—evidenced by the ―end‖ of the statute which makes it clear they‘re looking @ content. (2) VIEWPOINT DISCRIMINATION ≠ OK (a) Viewpoint discrimination, i.e. punishing only certain viewpoints, is when only one type of the speech in question is proscribed. (b) e.g. libel: Can regulate this speech, but can‘t write a law convicting libel only against the govt or against nuns. b. Virginia v. Black (2003): Opinion is rooted in the meaning of the symbol. Cross burning is intimidating. (1) True threats are not protected (2) Still considered a breach of the peace. It is an intentional utterance of words designed to instill fear in others and in context, is likely to do so. (a) In a narrow context, this is considered harmful to society and the govt can regulate it Vagueness, Support/Advocacy, and Anti-Terror Measures A. Idaho case: Δ is a 34-year-old grad student who is a webmaster for Islamic, ME webpages (some advocate suicide bombing). Doesn‘t share FTO views. He is Muslim, against suicide bombings and not anti-American. Is on trial for the statute in Humanitarian Law Project—i.e. providing ―material support‖ to FTOs, including ―expert guidance and assistance‖ [even though he doesn‘t subscribe to the ideas]. Can this survive a 1st A challenge? 1. Press? speech? a. No—he is only functioning as a publisher or allowing the e-mails to go out b. Yes—he has discretion over the content—which is part of a system of expressive conduct. Argument that he is a speech enabler. 1st A jurisprudence includes cyberspace. The ct‘s 1st amendment definition of speech = broad 2. Govt is acting as a sovereign; no public forum implicated 3. Content-based or content neutral? a. Δ would argue: content-based.

(1) Govt is only after terrorist speech, advocacy. (2) Thus, apply strict scrutiny b. Govt would argue: content-neutral. (1) Any infringement to speech is incidental. Actually concerned w/ the secondary effects (national security). (a) National security = important governmental interest (b) Ct defers to the executive since this may implicate ―foreign relations‖ (2) Must be tailored = ―less restrictive means‖ (a) Lots of deference to the govt (3) Thus, apply intermediate level of scrutiny 4. Also argue the VAGUENESS ARGUMENT a. IF you put ppl in jail, they must be given notice, the message must be clear. (1) Here, training by UN-recognized NGOs. Can still pass Brandenburg and still be prosecuted. (2) Humanitarian Law. Ct: no one knows how to define ―training.‖ US claims it is in the US Atty‘s Manual. Ct: That is not enough…uncomfortable to limit the scope of regulations as they get to the 1st A, even in a post-9/11 world.

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