con law II outline

Constitutional law II outline Incorporation The bill of rights does not, in and of itself, apply to the states. Must incorporate them into the 14th amendment for them to apply to the states. But how do you do that? -Start with Dred Scott: case kicked out of court on lack of diversity jurisdiction- Scott was black and not a citizen; therefore, there was no diversity of citizenship to be in federal court because there was no federal question jurisdiction yet. - After the Civil War, we get the 13, 14, and 15th amendments. -The 14th amendment applied only to states and included the privileges and immunities, equal protection, and due process clauses. Most people thought the privileges and immunities clause would be the most important. -Slaughterhouse cases- court threw out each claim under the 14th amendment: -Equal protection (EPC)- court says this clause was meant to protect only racial claims and in this case, it was not a racial claim - Due process (DPC)- court says this clause only applies to process and in this case there was no claim for procedural process, only substantive process, which did not exist at the time. -Privileges and Immunities (P&I)- court says this clause should be read very narrowly; only 2 (and later another was added) instances that fall under this clause: 1) right to go to foreign embassy to ask for help 2) right to petition legislator. 3)*** right to travel (from Saenz v Roe) - Twining v NJ- court suggests for the 1st time that there may be some substantive element to due process that is related to the BOR that comes from natural law. -Palko v. Connecticut- a right is a component of the DPC of the 14th amendment only if thy are of the very essence of a scheme of ordered liberty. To abolish them is to violate a principle of justice that is fundamental to the people. Basically, if you cannot conceive of a free and just society without the right, it would be incorporated in to the DPC (must reference all free societies, not just US). Under this application of incorporation, usually only the 1st amendment could be incorporated because you could conceive of a free society without most of the other rights. - Adamson v California- holding same as Palko- concurring and dissenting opinions are important: o Black’s opinion- against judges using subjective judgment about certain rights but if there is something in the constitution, should enforce it to the hilt. Once you start incorporation, must totally incorporate, otherwise the judges are just choosing what they think is important (framers told us what was important when they wrote the BOR). o Frankfurter’s opinion- accepts there is some substantive value to the DPC but not the whole BOR. Should only protect things so egregious that it violates the fundamental 1 idea of due process, but should not look to the BOR at all to make that decision. Under this theory, you get none of the BOR and basically no rights at all. ****MODERN RULE**** - Duncan v Louisiana- when judging whether a right should be incorporated, should look to the Anglo-American traditional model of justice. o What is incorporated?  1st amend  3rd amend  4th amend  5th amend (except for the grand jury requirement)  6th amend  8th amend o What is NOT incorporated?  7th amend (the anglo-american history or equity does not give a jury in civil trials) o Not sure?  2nd amend  9th amend  10th amend o Justice Harlan would apply the strength of each right differently to the states than the federal govt- this position has never been accepted, however. o “jot-for-jot” theory- once a right is incorporated, it is incorporated under the same strength to both the state and federal govts. Substantive Due Process 3 categories: 1) incorporation doctrine (explained above) 2) economic due process- use of the DPC to substantively protect property rights from govt regulation. This body of law is now dead. 3) privacy rights Economic due process Economic theory that swept the nation in the early 19th century because of capitalism. Corporations wanted to protect their ability to use their profits as they saw fit- began suing states for passing legislation that interfered with this “right.” -Munn v Illinois- shipping rate cap on grain (part of the Granger laws)- court rejects the claim that this is a violation of the companies property rights- this case establishes the public need theory (whatever property rights exist within the DPC do not apply to property subject to public need, ex. food. -Santa Clara v Southern Pacific- establishes that corporations are persons under the 14th amend and they have access to EDP. 2 - Minnesota Rate case- first time SC ruled in favor of EDP claim- said the state regulation of railroad rates was unconstitutional. - Allgeyer v Louisiana- summary of what EDP became- any govt regulation of contract was a violation of EDP (ex. minimum wage and labor laws were violations) ***EXCEPTION: Regulations protecting food (public need) and women - Lochner v NY- regulation of workforce in bakeries- right to contract. protecting the rights of individuals to contract ***EXCEPTION- public health (like structural mining safety, similar to pubic need exception) What courts went after in the Lochner era: 1) maximum hour laws 2) yellow dog contract laws (could not prohibiting employees from joining union) 3) minimum wage laws 4) price regulations (EXCEPTION still is public need from Munn) 5) monopoly laws a. EXCEPTION- laws regulating for women tended to be upheld. - Nebbia v NY- OVERRULED LOCHNER- court upheld regulation of milk prices. Says property is not absolutely protected by the constitution. Says there is no substantive component of DP. Basically says regulation is only unconstitutional if it is discriminatory or irrational to the point that it is arbitrary. -West Coast Hotel v Parrish- overruled Adkins- upheld a minimum wages law for women. - US v Carolene Products- upheld statute that outlawed filled milk (seemed like a little arbitrary statute). Basically if there is any statement of facts that the legislature can rely on in making the law, the statute is fine and not arbitrary. -Williamson v Lee Optical- statute that prohibited opticians from selling glasses unless had a prescription from ophthalmologist or optometrist upheld. State even refused to say why they passed the statute, and the court tried to reason for the state! -Ferguson v Skrupa- statute that only lawyers could be debt adjustors upheld- says it is not for the court, but the legislature, to decide whether this is wise legislation. Privacy -Buck v Bell- statute authorizing state to sterilize insane patients; SC found this statute constitutional and says it is better for the entire world to prevent that kind from procreating some of their own kind. 3 - Meyer v Nebraska- statute making it illegal to teach foreign languages in school. SC finds this legislation unconstitutional under SDP citing that there are things the govt just cannot tell you what to do. - Pierce v Society of Sisters- statute illegalizing private schools- SC finds the statute unconstitutional under SDP that had just been articulated by Meyer. Both Meyer and Pierce are still good law, but the theory behind them is not exactly the same anymore. -Skinner v Oklahoma- statute authorizing sterilization of habitual criminal violators of moral turpitude crimes- problem was that these crimes excluded white collar criminals. Justice Douglas tries to reconfigure the case into a fundamental right equal protection issue. BUT in order to do that, you must define a fundamental right, which is what Douglas was trying to get around by making this an EPC issue. So basically, Douglas created a fundamental right to procreate from nothing- he avoided the issue of SDP altogether. -Griswold v Connecticut- also a Douglas opinion. He liked the idea of privacy but just could not figure out where it came from. SO he created the idea of the penumbra (from 1,3,4,5, and 9th amends)- says these amendments are all about privacy, which implies a right of privacy generally. He says one of the things protected by this implicit right of privacy is the right not to procreate or the right of marital privacy. - Goldberg’s concurring opinion- says you only have to look at the 9th amend to find this right of privacy. - Harlan’s concurring opinion- goes beyond the majority opinion and explicitly uses SDP. He says privacy is a right to freedom like in Meyer and Pierce. However, this right is not absolute (ex. you can still criminalize adultery, homosexuality, etc…). - dissenting opinion- says the majority is trying to Lochnerize and you cannot do that! ABORTION - Roe v Wade- statute making all abortions illegal unless the mother would have died- state claims that the purpose of this statute was to protect the mother’s health and the unborn fetus. The SC finds the statute unconstitutional. It looks to the history and tradition of abortion regulation, and finds traditionally, abortions were illegalized to protect the women from abortion butchers, but medical advances had now made abortions much safer. The court decides this case under the 14th amend SDP. The court also talks about the fetus’ right. The state claims it is protecting the fetus’ rights, but constitutionally, only a person has rights and a person is defined as someone who has been born in every context of the constitution. o Holding: established the trimester system (turns on fetus viability- ability to live outside the womb)  1st trimester: neither of the state’s interests (protecting woman or the fetus) kick in because having an abortion in the 1st trimester is very safe and the fetus is not viable at this stage  2nd trimester: the state interest in protecting the woman’s health kicks in here because 2nd trimester abortions can be dangerous; however, the interest in the fetus does not kick in because the fetus is not yet viable. 4 - 3rd trimester: both state interests kick in here because the fetus becomes viable. o EXCEPTION: if the woman’s life is at risk, she is never banned from having an abortion because no one is required to give up their life for another life. o Dissenting opinion- (White and Rehnquist) there is no such thing as privacy because it is not in the constitution. o Alternative constitutional rationales to Roe:  13th amendment- if the state prohibits abortion, basically it is making the woman a slave or involuntary servant to the state for 9 months BUT response to that is that she voluntarily got pregnant (response to that is she is not voluntarily pregnant now)  EPC- abortion regulation only affects women BUT the response to that is that fetuses are a group that aren’t getting protection either and that this regulation is trying to protect the fetuses who don’t have any rights at all.  Establishment clause- banning abortion is basically endorsement of a particular religious view and forcing it upon everyone. Cases stemming from Roe: o Definition of viability     Missouri v Danforth- gives definition of viability as the ability to live outside the mother’s womb Colautti v Franklin- cannot make doctors liable criminally for aborting fetuses- cannot 2d guess doctors in making the decision to abort. Webster- if a woman is believed to be more than 20 weeks pregnant, the doctor is required to perform an amniocentesis test to determine exact age. This is just a test, not a limitation, so the statute was upheld. o General regulations on abortion  Akron and Thornburgh- see support for Roe shrinking  Webster- see above  Casey- statute included: juvenile consent provision, reporting requirement, medical emergency allowance provision, husband notification, informed consent, and waiting period (these last three became the central issues of the case)  District court had used Marks v US to go against Roe  SC- joint opinion- lists 4 factors to overturn a prior decision: o Has the prior decision become unworkable? (here, roe is still workable because it is written like a statute) o Have people/society come to rely on the old decision? (here, they have relied upon the availability of abortions in the even that contraception fails) o Has the law evolved in a way that undermines the principles on which the prior decision was based? (here, if anything privacy 5  rights are much stronger and broader than at the time Roe was decided) o Have the facts that were the basis for the prior decision evolved in a way that makes the prior decision wrong? (here the only fact that pertains to Roe is viability and that has not changed) HOLDING: court says one of the basic flaws of Roe is its rigidity. Medical technology has advanced to the point that there are no longer rigid trimesters. The court holds that the state may discourage abortion prior to week 24 (viability) as long as they are not banning it altogether. This is subject to the undue burden analysis. An undue burden is a substantial obstacle. o The husband notification provision was struck down because it imposed an undue burden on the pregnant woman. o The informed consent and waiting period provision were upheld because they did not impose a substantial obstacle on the right to an abortion. o Partial birth abortion  Sternberg- statute banned partial birth abortions unless it was to save the life of the mother.  Background- there are 3 ways of performing abortions: o Vacuum aspiration- basic way in the 1st trimester o Dilation and evacuation (D&E)- safest method in 2nd trimestersafer than carrying to term. o Dilation and extraction (D&X)- usually required for breach birth- fetus partially delivered, head collapsed and the rest removed- sometimes safer for woman than D&E  This statute did not intent to prohibit D&Es but the statutory description applied to both dilation methods. Statute was found unconstitutional because the state does not have an interest in prohibiting certain methods of abortion because that does not protect the fetus, just prevents certain kinds of abortions. Also the interest in the woman does not kick in because these methods can be safer than carrying to term. o Abortion funding (equal protection/ fundamental rights arguments)  Mayer v Roe- court held that Roe did not grant an absolute right to abortion, only expressed protection against undue burdens. Denying funding is not an undue burden imposed on the woman bc it is not the govt’s fault she got pregnant. Harris v Mcrae- court held there is no constitutional right not to be poor, therefore the govt can refuse to fund medically necessary abortions.  6  Webster- statute prohibited a public facility (any property leased or owned by the state) or public employee from doing anything for the purpose of encouraging or counseling women in non-medically necessary abortions. The facility in question was a private hospital that leased the land for $1 a year from the state. The court found the statute constitutional, which expanded the financing doctrine to indirect, as well as direct, financing by the state. Russ v Sullivan- statute on federal family planning- if you get money from the govt, then none of your employees can counsel or refer patients on abortions even if asked about it or you lose all your federal money. Court found this statute to be constitutional- basically says the govt doesn’t have to fund anything. HOWEVER, this case may not be good law anymore under the 1st amendment:  Rosenberger- school would not give student activities fees to political and religious groups. Student group wants to get funding- court finds in favor of students. The court holds this case is different than Russ in that in that case the govt was hiring people to speak on behalf of the govt and could control who they gave money to. In this case, the purpose of the fees was to disseminate a range of private opinion.  Forbes- public tv station in Arkansas would not let 3rd party candidate debate on air. The state won here bc the govt was serving the essential function of a newspaper editor. It could make executive decisions as to what was important to put on the air.  o Juvenile abortions -Kerry v Population Services-extends Eisenstadt (availability of contraceptives) to juveniles. -Matheson- draws distinction between parental notification and parental consent -Belatti v Baerd- court held that states could require juveniles to get parental consent ONLY if there existed a judicial bypass (Belatti bypass), in which the juvenile can go to court. Belatti bypass: judge looks at 2 criteria 1) maturity of the applicant 2) best interest of the mother - Hodgson and Ohio v Akron-statute that required both parents get notification and 48 hour waiting period. Court held that requirement of Belatti bypass applies to both notification and consent. RIGHT TO FAMILY 7 -Village of Beltair- zoning regulation requiring single family residences. Court held that there is no constitutional right to live with a bunch of unmarried people. Moore v City of East Cleveland- case in which a grandma was living with 2 grandchildren that were cousins. The court held that the constitution protects the family because it is rooted in the history and tradition of the country. o Standard: the more what you want to do fits within this tradition, the more likely it will be protected by the constitution. -Zeblocki- statute holding that a parent who had child support payments could not get married until he was paid up. Court strikes down this regulation, holding that people cannot be prohibited from getting married because it is one of the most intimate rights protected by the history and tradition of the country. -Turner v. Saffley- prisoners have no fundamental rights BUT here this right at issue was the right to marry, and the prisoner won! -Michael H. case- what history and tradition do you look at? 1) the tradition of the marital unit OR 2) the tradition of the biological parent having some relationship w/ his child. -Troxel- statute giving grandparents the right to visit grandkids but did not consider parents’ desires. Court held that when there is an absolute conflict between parents and grandparents, the parents win under the history and tradition standard because parents are closer to the children than grandparents. Marriage fails to trump funding interest: -Ling- state statute limited aid to related persons living together, which gives people a disincentive for living together, but financing is different so the govt wins. -Bowen- court upheld a requirement that child support payments could be used to offset govt funding for kids- follows the previous case in that govt aid is treated differently than govt regulations in general. SEX Two types of freedom of association: 1) 1st amend implicit constitutional right: right to association with other people to engage in activities that are protected by the 1st amend (speech, religion, etc.). 2) SDP- right to intimate association -Roberts v Jaycees- statute prohibiting discrimination in public accommodations. The lawsuit was brought because women were not allowed in a club. Court held there was no 1st amend right to association here because they were not participating in a 1st amend activity. The court also rejected the SDP intimate association claim. Definition of intimate association: 1) smallness of group 2) high degree of selectivity 8 3) seclusion from others in critical aspects of the relationship -Bowers v Hardwick- (overruled by Lawrence) statute prohibiting sodomy. Court sees no history and tradition protecting homosexual sodomy (virtually every state had a regulation on this). majority opinion says that almost all law is a moral regulation and that is ok. -Lawrence v Texas- similar statute to Bowers. OVERRULES BOWERS. Court decided this case of SDP privacy rights. HOLDING: 1) morals alone are not enough to regulate behavior- must also have some concrete harm to a person (ex. incest) or an institution the state is trying to protect (ex. marriage in the context of gay marriages) 2) cannot look at the history and tradition of an issue at the time the constitution was written- must look at the evolving tradition of an issue (ex. less sodomy laws in states tending to move away from regulating sex) - Williams- Alabama sex toys outlawed- P’s asking for new fundamental right to be recognized. Court held having sex toys was not a fundamental right Recognizing new fundamental right: 2 step analysis 1) must describe exactly what you want the court to recognize 2) court must determine whether the right is rooted in the history and tradition of the country and (if it is crucial to a free society-from Palko) BUT the court abandoned Palko in Duncan-so the “crucial to free society” part is unsure. COHABITATION -Hollenvaugh- librarian and custodian shacking up and got fired- ISSUE- does the library have any state interest in prohibiting employees from cohabitating? HARMLESS LIBERTIES -Swank- cop riding around w/ girl on motorcycle- fired- raises both 1st amend and intimate free association claims-court held 1) for 1st amend, the purpose is not to protect casual chitchat, but speech important to society and 2) for intimate association, there has to be some intimate relationship, which there was not here. - Pence- mustaches on bus drivers banned- court held this was an arbitrary infringement and had no rational relationship to any state interest. -Rathert- cop w/ pierced ear fired. Police dept held that it detracted from police professionalism. Court sides w/ police department and held that this case was different than Pence in that here the police department is worrying about public moral. 9 -Palm beach topless ordinance- male jogger sues State interests alleged: 1) stabilizing land value, 2) maintain history and tradition of the town. Court struck down ordinance and held there was no evidence that topless joggers impede on land value or that there was a history of jogging w/ shirts on in Florida! RIGHT TO DIE Cruzan- similar facts to Schiavo. State statute required clear and convincing evidence of the patient’s intent. Parents did not have enough evidence to have feeding tube removed. HOLDING: court upheld statute because it did not interfere w/ the patient’s right to die so much as to make it unconstitutional. The court acknowledges some constitutional protection for making right to die decision but does not say it is a fundamental right or how strong the right is. Gluxerg- assisted suicide case- HOLDING: court held that affirmative actions of assisted suicide are different than withholding treatment as in Cruzan. There is no constitutional right to assisted suicide. State interests in right to die cases: 1) preservation of life in general 2) protection of ethics in the medical profession (assisted suicide goes against the Hippocratic oath) 3) protection of vulnerable groups 4) avoidance of involuntary euthanasia Quill- EP case- companion to previous case. Must have SDP right to get EP. There is no substantive due process right for assisted suicide and therefore no equal protection right. Pruneyard- state law can always add to your rights but can never diminish the rights given in the federal constitution Procedural due process Goldberg v Kelly-everything is property to the person getting it so everything gets PDP. Roth - OVERRULES Goldberg- teacher w/ 1 year contract let go after that year. Has no property interest because he was given what he was promised already. modern standard for PDP 1) identify a property or liberty interest that the govt has taken away 2) determine what process is due (see Matthews) Step 1: Identify property or liberty interest 10 PROPERTY INTERESTS State defines the property interest Court defines the procedure. Logan- employment discrimination case- gets PDP bc he had a property interest in getting a hearing w/in 120 days. Perry- similar to Roth BUT P claims the school had an implicit expectation that if you had a 1 year contract, it would be renewed unless you had just not done your job. If this is true, a property interest had been created. Loudermill-statute saying civil servants could only be fired for malfeasance, misfeasance, or nonfeasance. The statute created a property interest within the definitions of why they were fired. OVERRULES Arnett which had created the bittersweet analysis- if the statute creating the property interest also defines the procedure, the only procedure you can receive is what is defined in the statute. Now, however, the statute can define procedure up to the point of being unconstitutional and the court may look at what the state has suggested as proper procedure. Goss v Lopez- student suspended from school- court held he had a property interest in an education because of statutes requiring all children go to school and creating comprehensive public school systems. LIBERTY INTERESTS Court defines the liberty interest (w/ exception of parole statute cases) Bodily integrity- if the state whacks you w/ a stick, they are infringing on your liberty interest Ingram- kid paddled- has a liberty interest in keeping the state off his body Prison Mitchum-guy moved from one prison to a crappy prison. Has no liberty interest- once you are in prison, they can move you wherever they want. EXCEPTION: Jones- if they want to move you from general population to a psych ward, you have a liberty interest because of the stigmatic consequences of being in the psych ward. Allen- parole case- court characterizes parole cases as liberty interests BUT treats it as a property interest in that it allows the state to define the interest. (looks to the parole statute) Indefinite civil commitment Pusha- state may civilly commit someone as long as it bears the burden of proving: 1) the person is mentally incompetent 2) he is likely to be dangerous in the future 3) cannot control himself in the future (from Hendrix) must be separate findings on steps 1/2 and step 3 (from Kansas v Crane) 11 Reputation Wisconsin- reputation is a liberty interest subject to PDP protection. Paul v Davis- reputation plus standard- must have some concrete harm as a result of damage to your reputation. Megan’s Laws Otto v Doe-challenged under ex post facto clause- court held that these laws a civil, public safety laws, not criminal and not subject to the ex post facto clause. Connecticut v Doe- court goes through 2 step PDP analysis- bypasses step one and assumes there is a liberty interest. In step 2, says it was already satisfied because he got a trial. Doe v Pryor- from 11th circuit- court rules in favor of P- held that the implications of the guy being on the list implicates a SDP privacy right and therefore a liberty interest automatically. Child abuse hotlines Cases in favor of P Bohn v Dakota- created a liberty interest in family solidarity- by sticking its nose into family affairs, the state has infringed on a constitutionally protected liberty interest of keeping family affairs private. Valmont v Baine- if your name gets on the list, the repercussions are enough to give you a liberty interest. Case in favor of state Jones- because the list was not available to the public, there were no implications upon reputation and no liberty interest. REMEMBER: Just because you have a liberty interest does not mean you have a substantive right BUT if you have a substantive right, you automatically have a liberty interest State of mind requirement: must prove state intentionally robbed you of a property or liberty interest Pratt v Taylor- hobby kit “stolen” from prison mailroom- this is not enough to prove state intentionally took it. Hudson- negligently dropped pillow and P tripped on it- not enough because it has to be intentional, not negligent. Step 2: what process is due? 12 1)Matthews v Eldridge-state requiring proof you are still disabled to continue getting social security. The state said the P was not disabled anymore and took away his SS. He is given an appeal, but during this appeal he is given no money- wants ruling that PDP keeps his money going to him while the appeal is pending. Test (always do this under step 2 of PDP) 1) identify the magnitude of the P’s interest 2) look at risk of erroneous deprivation 3) efficiency interest of the govt (how much will it cost?) 2)Zimmerman v Burch- pre-deprivation relief- wanted a hearing before the govt too away your interest not an appeal after the fact. This is the mental institution case (pleasantly nutty) Test 1) was the deprivation predictable by the state? 2) Was there a pre-deprivation remedy available? 3) Was the state officials’ conduct authorized and therefore attributable to the state? 3) Mullane v Central Hanover Bank- notice STANDARD: is notice reasonably calculated under all the circumstances to apprise the interest party (P) of the pendancy of the action and affords him the opportunity to present objections? Dusenbery v US- registered letter mailed to prison that they were selling car of inmate. Never got the letter. Must look at it from the perspective of the state- was it reasonable to think the registered letter would give notice? Court says yes, even though there is no evidence that he even mailed a letter. Basically, any statement by the def of attempt to give notice will suffice. Other PDP issues: Supermax prisons Austin v Wilkinson- prisoners do have a liberty interest in Supermax prisons but it is unclear as to whether that applies to lower levels in prison. Existing state remedies Pratt, Hudson, Ingram-must take all existing state remedies into account when deciding whether you received adequate process (look at internal law- within the agency itself- and state law- both tort and criminal) Immigrants Zadvydas v Davis- the 14th amend is written in terms of persons, not citizens, so ALL people being kicked out of the country get process (also indefinite detention w/out hearing is unconstitutional) 13 Punitive damages (court actually characterizes this as SDP issue) BMW v Gore- gives 3 guideposts to determine when punitive damages are unconstitutional: 1)degree of reprehensibility of def’s conduct 2) disparity between actual harm suffered and punitive damages 3) difference between punitive damages awarded and civil penalties authorized in comparable cases State Farm v Campbell- advisory as to how to enforce the guideposts from BMW 1) as a matter of DP, you cannot take into account out of state activity by the def. 2) anything above a single digit ratio (9:1) is presumed unconstitutionalthis can be overcome in cases where def’s conduct is particularly reprehensible 3) must specifically figure what the civil penalties are (usually very small because of mandatory caps on recovery) Grading Univ of Michigan v Ewing-in the absence of faith, courts will not get involved in this issue Univ. of Michigan v Horowitz- must give faculties the widest range of discretion in grading Susan M. v NY Law school- reaffirms Ewing, BUT you do have a property interest if the school promises you an appeal process in something like the handbook. Equal protection Pre-war litigation (see notes p 22) Civil War legislation 13th amend-codified emancipation proclamation Civil rights act of 1866- provided all legal rights to freed slaves- focuses mostly on commercial rights bc it was passed under the commerce clause 14th amend- contains sec 1 (DP, P&I, and EP) and sec 5 (giving congress power to pass laws to carry out the provisions of the amend. 15th amend- voting rights Civil rights act of 1871- provides criminal sanctions for conspiracies to violate civil rights KKK act of 1871 (42 USC 1983)- there is a remedy both equitable and legal against anyone acting under color of law for violating constitutional rights Civil rights act of 1875- gives rights other than commercial- basically same thing as CRA of 1965 Judiciary act of 1875- gave federal question jurisdiction to all federal courts. SC cases from this era (basically gutted all the legislation that had passed) 14 Slaughterhouse cases- gutted 14th amend (see earlier notes) US v Reese-civil rights act unconstitutional bc it was not limited to race (see previous case) US v Crookshank- could not use 1870 act to prosecute lynchers bc there was no evidence the men were lynched for trying to exercise their right to vote CRA of 1875 held unconstitutional bc it regulated private behavior and only state actions could be regulated by legislation passed under the 14th amend. Jim Crow legislation/cases Plessey v Ferguson- 14th amend not intended to enforce social integration- established separate but equal doctrine Cumming v BOE- not a violation of separate but equal to turn black high school into elementary school bc black students could go to the next county over. Missouri v Canada- paying for black to go to school out of state held unconstitutional bc it was not equal- you have to provide a resource in the same jurisdiction if you make a school available for white students. Sweat v Painter- UT law school case- UT has qualities incapable of being objectively measured (it is special)- cannot make an “equal” law school for blacks. McLoren v Oklahoma- physical barriers between black and white students unconstitutional- if you admit the student, you must treat him the same way as white students Brown v Board of Education Court held: 1) cannot look at original intent of the framers bc public education is a 20th c phenomenon 2) public education is so important that whatever equal protection is supposed to protect, it definitely applies to education 3) intangible factors make it inherently unequal 4) segregation has psychological effect on black children. Brown II- enforcement of integration- court ordered integration w/ “all deliberate speed” Bowling v Sharpe- applies integration to federal schools in DC by performing reverse incorporation of EP into the 5th amend DPC (which applies to the federal govt) Response to Brown Cooper- court held that once they had ruled on an issue and said what the law is, it is embodied by the supremacy clause and becomes the law of the land- it applies immediately to both the parties involved and the general public. 15 Hawkins- UF law school case- see p 25 notes Griffin- school tried to cut checks to parents to send kids to private school. Court held this unconstitutional bc of the intent to avoid desegregation. Green v County School Board- overruled Brown II- must desegregate immediately Swann- HOLDING 1) court could not impose absolute quotas on racial representation in schools, BUT may use ratios as a starting point 2) some one race schools may remain in a desegregated schools system if the system is deemed unitary under Brown. 3) Courts may gerrymander the districts to achieve racial distribution 4) Courts may order busing to achieve integration Intent School cases Must show schools intentionally discriminated, which was easy in the south bc statutes specifically indicated that. Outside of the south, it was more difficult to show intent. Keyes- simply showing a handful of schools are segregated does not prove the whole school district is intentionally segregated. If P shows several schools are segregated, the burden shifts to the def to explain the segregation to be non-discriminatory. Non-School Cases Washington v Davis- application of Keyes to non-school settings. STANDARD: de facto (numerical) discrimination does not violate EPC. De jure discrimination must be shown (intent) Intent can be inferred by the way the statute is applied (ex. in this case, intent could not be inferred bc there was evidence black applicants were trying to be excluded- in fact, they were trying to diversify the police force. Other examples 1) veterans getting preference on civil service exam- women losing these jobs bc most vets are male. Could not show intent! 2) McKlesky v Camp- study showing 4 times more likely to get death penalty if you kill a white person than black. Could not show intent- no evidence that you are given the death penalty BECAUSE you kill a white person. The system IS racial, but not intentionally racial, and that is constitutional. Arlington Heights: framework for determining impermissible intent Test: 16 1) numbers- impact of a particular policy (must rise to significant level- See Yick Wo and Gomillian) 2) sequence of events leading to adoption of statute- ex. school shuts down public schools to avoid integration case. 3) Departure from the norm- ex. procedural departures- govt agents meet in the middle of the night to conduct business (smells fishy) 4) Contemporaneous statements by govt officials- if they are dumb enough to say it, it can be held against them! HOWEVER, if just one official makes a statement, may not be able to hold the whole agency responsible. Integration Milliken I- white kids bused from Grosse Pointe to Detoit- held unconstitutional- cannot bus cross district BUT if the suburban schools are show to be created to segregate from the inner city, that is different. Milliken II-approval of injunctions meant to upgrade schools as a cure for the consequences of illegal discrimination. Jenkins I- how do you pay for upgrade of school? Judge cannot impose taxes- he can order what needs to be done but the state has to decide how to pay for it. Jenkins II HOLDING: 1) How do you determine when the effects of discrimination have been cured? Look to test scores in comparison to suburban test scores BUT must show the previously low test scores were the result of discrimination (not bc of economic status, etc…) 2) judge cannot draft injunction to attract white kids to the school (violation of Milliken I- amount to cross district busing). Only ok if it is meant to cure the effects of discrimination. Dissolving injunctions Pasadena v Spangler- once a school has been declared unitary and the injunction dissolved, the only way you can reinstate an injunction is to show that the return of segregation in schools is the result of additional intentional discrimination by the school board since the 1st injunction. Oklahoma City v Dowell- when is a school unitary and ready to dissolve injunction? 1) look at extent of good faith compliance w/ original injunction by the school board 2) look to whether vestiges of past discrimination have been eliminated to the furthest extent possible Freeman v Pitts- judges should dissolve injunctions piece by piece. Once dissolved, it is governed by Pasadena. Universities US v Fordice- are historically black colleges unconstitutional? Yes, bc there is not a compelling state interest to have a university, part of which is focused on racial segregation. Court ordered 17 the schools to be reconfigured so that each school would attract more students of the other race and for the black school to receive funds to upgrade facilities. Afro-centric high school Cannot take one segment of society (race of gender) and exclude the rest Non-school EP race cases Overt discrimination based on race Strauder v WV-statute prohibiting blacks from serving on juries struck down Koromatzsu- war is different (BUT case is technically overturned in light of evidence that the govt defrauded the court in asserting national safety problem w/ Japanese) Facially neutral statutes premised on racial bigotry Loving- statute prohibiting interracial marriages- if statute is premised on racial discrimination, even if facially neutral, it is unconstitutional. Administrative discrimination cases Yick Wo v Hopkins-statute enforced almost 100% of time against Chinese held unconstitutional. Gomillian v Lightwood- like previous case- gerrymandering to exclude black residents held unconstitutional (usually cities have the right to configure districts as they please) Palmore- custody taken away from mother bc she remarried black man (court had said it was in the best interest of the child not to grow up in mixed family)- SC says this is unconstitutional- if the state action reflects private bigotry, even if state renounces that bigotry, it is a violation of EPC. Sec 5 of 14th amend- congress’ authority to pass statutes Burney- In order to sue a state for damages, the state must either waive his 11th amend immunity OR congress can abrogate a state’s 11th amend immunity. -PROBLEM: Seminole Tribe v Florida: congress cannot abrogate a state’s immunity in a statute passed under the commerce clause, only under the 14th amend. - Back to Burney: SC strikes down statute that said govt could not do anything that substantially burdens religion w/out a compelling interest and pursuance of that interest through LRM (least restrictive means). Court says the statute was not authorized under sec 5 of 14th amend (which incorporates the 1st amend) bc the statute does not enforce the provisions of the 14th amend (which would be the free exercise clause of the 1st amend bc that is incorporated) but changes substantive law. Standard: In order for the state’s immunity to be waived, and therefore P gets damages against the state, the statute must have been passed under sec 5 of the 14th amend (remember all amendments under incorporation). To be passed under this section, the statute must ENFORCE the amendment’s provisions, not change substantive law. 18 Dept of Human Resources v Smith- counselors fired for using peyote in religious ceremonies. Prior to this case, the standard under the free exercise clause was the substantial burden test. Under Smith, no longer hold states to the compelling interest standard. If the state has a law of general applicability, it can be applied to everyone across the board, even those who violate it for religious reasons. RFRA passed in direct response to this case. HOLDING: The court says the statute goes beyond the rights the court says people have under the 1st amend. This is changing the law, not enforcing it and could not be passed under sec 5 of the 14th amend so it is unconstitutional. Katzenbach v Morgan- held it is ok for congress to expand rights under sec 5 of 14th amend. Contrary to Burney. ***How do you have Katzenbach AND Burney then? In Burney, the court said that Katzenbach is a statute outlawing literacy tests as a prophylactic remedy to take into account other things states were doing that did amount to violations of the EPC. Establishment of congruent and proportional analysis- standard for identifying the proper remedy for an injury congress is trying to prevent. (actually it doesn’t make any sensethe court was just trying to justify keeping the voting rights act while keeping Burney) ***Congruent and proportional analysis*** Must convince court the statute is congruent and proportional to redress the injury congress has identified- the injury must be one that the court itself has identified as a constitutional violation. What is congruent and proportional? Florida Prepaid v College Savings- state defends patent theft under 11th amend immunity. P says there is a federal patent law abrogating this right. State responds w/ Seminole Tribe (cannot sue under statute passed under commerce clause). P responds that it was passed under 14th amend to remedy unconstitutional takings by state actors. Look at C&P analysis: court held this was not C&P bc in enacting the statute, congress identified no pattern of patent infringement or constitutional violations (takings under 5th and 14th amends) by states. Kimmel v Florida- no pay raises for FSU employees. People hired later paid higher due to market rate increase. Sued under Discrimination Employment Act for damages. Court held statute unconstitutional under Burney bc congress had shown no pattern of discrimination by the states under the C&P analysis. Problem here is that age is a rational basis group and people are not shown to discriminate against people based on age unless it is totally irrational and arbitrary and almost nothing is irrational discrimination. Congress must have an abundance of evidence of a pattern of totally irrational discriminatory behavior by the states to justify this statute bc that is the constitutional standard for age discrimination. Board of Trustees v Garrett- nurse who was fired after she got cancer sued under portion of ADA requiring states to make reasonable accommodations for people w/ disabilities. 19 Court held the statute unconstitutional bc not C&P. congress had not shown abundance of evidence of violations by states. Dissent- Breyer has clerk go through all testimony in congress to identify every instance of state discrimination against people w/ disabilities. Majority says these instances were isolated, not a pattern. Hibbes- P wins under the Family Medical Leave act, which gives employees 12 weeks unpaid off from work to deal w/ family emergencies. Passed to protect women who are usually the ones having to deal w/ family problems. Court classifies this as a gender case (intermediate scrutiny) Court says this is C&P bc there is a lot of evidence of people getting fired for having to take off work. (P wins- not like Kimmel and Garrett bc it is heightened scrutiny-need less evidence of state pattern of f-ing up) Tennessee v Lane- P sued under ADA title 2 (access provision), which says no person w/ diability should be excluded from services, programs and activities of public interest. The state defers to Garrett, saying it is a compelling state interest not to put an elevator in the courtroom bc it is cheaper. Court says this case is a fundamental rights EP case, which requires strict scrutiny (it is a fundamental right to have access to the courts to defend yourself in a criminal proceeding). Congress needs very little record of states screwing up under strict scrutiny so the P wins here- statute is C&P. (It all depends on the building here thought- there is no fundamental constitutional right to have access to a hockey rink, for example) A fundamental right is basically anything in the constitution, plus privacy. These cases may or may not be fundamental rights cases: Hunter v Erickson- city council passes ordinance prohibiting discrimination based on race, then citizens put referendum on the ballot invalidating the ordinance. Court held this unconstitutional bc you cannot change the political process to disadvantage a racial minority. Washington v Seattle School District- opponents of busing to achieve racial integration put proposition on the ballot that would prohibit school boards from requiring busing. This is also a change of system case. By making the state change its policy, it is diluting the power of the racial minorities in the city. Crawford- citizens put referendum on ballot prohibiting the California SC from interpreting the California EPC any differently than the federal EPC. The SC says this is ok to do bc it is a change in substantive law, not the political system. Evans- Colorado’s three big liberal cities wrote ordinances prohibiting discrimination based on sexual orientation. Then the state put on the ballot an amendment that would negate that ordinance. The city sues. SC says the amendment is unconstitutional under rational basis bc it targeted 20 homosexuals through rank prejudice (that is usually the only way to win a rational basis claim) Affirmative Action Only 2 compelling state interests have been recognized: 1) remedial (applies to both educational and employment AA) 2) educational diversity (applies only to educational AA) Intent requirement still applies- must show proof of past intentional discrimination. Education cases: Bakke- AA at UC Davis med school- fairly rigid program (see p 34 in notes)- establishes that race is race. Racial AA programs get strict scrutiny just like the discrimination cases. School asserted 3 interests to justify AA: 1) remedial (but the court says faculties are not equipped to implement remedial AA programs) 2) improve health care of inner city (but there is no record that more minority doctors will achieve this result) 3) educational diversity (this is a legitimate interest BUT the strict quota system will not accomplish that goal) STANDARD: “Race as a plus”- must take into account many different diversity issues; race can be a plus BUT NOT the only factor. Podberesky v Kirwan- 4th COA case- AA program giving merit based scholarships to blacks challenged by Hispanics. School gave 4 rationales for the program: 1) recitify poor reputation in black community, 2) blacks underrepresented in school, 3) very low retention rate for blacks 4) hostile atmosphere for blacks on campus. School loses under the narrow tailoring aspect of AA (see notes p 38-39) Hopinwood- held Bakke unconstitutional but was later overruled by Grutter. UT law school- used 2 different systems for admissions for blacks and Mexican Americans. Holds diversity is not a compelling state interest. Univ of Michigan v Grutter- law school case- program upheld- used race plus as a factor. Established critical mass objective. Must still avoid rigid quotas. (also this is where O’Connor makes her statement that AA programs will no longer be needed in about 25 years) See Scalia’s dissent in notes p 39 Univ of Michigan v Gratz-under grad case- program struck down bc system of numbers was too absolute. Employment and set asides Wygant-much more likely to uphold AA in hiring programs than lay off programs. 21 Sheet Metal Workers v EEOC- court imposed AA program on employer who had engaged in hiring discrimination based on race. Remember you CANNOT have a rigid system and there must be state action. Here the state action is satisfied bc the court (state actor) is imposing AA upon a private actor. US v Paradise- Court instructed Alabama highway patrol to implement an AA program bc they had never hired a black person. The highway patrol did this but never promoted any. Court said they had to promote some too. Court imposes rigid quota system on them. They appeal to the SC saying you cannot have a rigid quota system. Court says there can be a judicial decree imposing a rigid quota system ONLY if nothing else has worked. (look to the record to see what else has been tried) This is the one EXCEPTION to the Powell rule of flexibility. Fullilove- requirement of 10% set aside for MBEs- court held it was flexible bc you could get out of the set aside if there were not enough people in the geographic area to fulfill the quota. Must have a “get out” program in order to be flexible. City of Richmond v Crowson- virtually identical program to previous case. Only change was in set aside number (upped from 10% to 30%) SC strikes down this program as unconstitutional bc in Fullilove it was a federal program and the federal govt can do things the states just cannot do. Federal govt not bound by 14th amend (which is later overturned in Aderand). Court says the state has no compelling interest here (tried to justify it as remedial) bc you cannot speculate how many minority businesses you think would exist if not for discrimination in the past. You have to tell the courts exactly why and how many absence MBEs is attributable to discrimination. Also you cannot rely on statistics from other areas- has to be from the jurisdiction in which you wish to implement the program. Metro Broadcasting- NOT GOOD LAW ***OVERRULED BY Aderand- makes Crowson the ultimate law. Facts- the stature giving 10% stipends to MBE subcontracting bids was held unconstitutional. STANDARD: 3 general principles of AA 1) skepticism- strict scrutiny for race based AA 2) consistency- race is race 3) congruence- federal and state govt get same application AA based on gender: Lamprecht- program looks like Metro Broadcasting but based on gender. Struck down bc the numbers could not back up the state’s assumptions that womenowned stations would play more women-targeted programs. Summary of AA: 22 1) talk about the state’s compelling interest (can only be 2) 2) talk about narrow tailoring of the program a. what race neutral efforts were made to address the problem before resorting to race cognizant methods b. must conform the remedy to past discriminations by the particular govt agency trying to implement the AA program c. must develop extensive findings of the nature of past discrimination (numerical data) d. must prove past discrimination was so egregious it amounted to unconstitutional intentional discrimination e. if there is a remedial program, it can only be done by some agency having political accountability (from Bakke, ex. legislature, executive officials in an agency that answers to the govt) f. programs must be temporary (from Grutter) g. hiring programs good/ lay off programs bad (from Wygant) h. judges can get away w/ more than agencies or universities who are implementing voluntary AA- assumption is that there is proof of past discrimination in the courts (from Paradise) i. availability of waiver (flexibility) Rational basis discrimination Roystarguano- gives the nomenclature to use when deciding rational basis cases- reasonable and not arbitrary, fair and substantial. New Orleans v Dukes- current standard- classification must be rationally related to some legitimate state interest. Railway Express-city council outlaws advertising on trucks for any business not owned by the truck owner- city claimed this was a safety issue- court upheld ordinance saying it would not 2nd guess the city as to what they felt about traffic safety. Williamson v Lee Optical- also see in SDP- optician case- here the state did not even give an interest but was still upheld- not 2nd guessing legislature. Minnesota v Cloverleaf Creamery- law banning plastic milk containers- state gives completely inaccurate reasoning but court still upholds law. State is not required to convince the court of the correctness of their legislative process. Fitzgerald v Racing Association of Central Iowa- state charges higher taxes on slot machines in race tracks than on riverboats. Again the court won’t 2nd guess the legislature, and upholds the statute. Beezer- MTA refuses to hire anyone who takes methadone, even though none of the jobs are safety related. City says this is a public relations matter- people don’t like people who have been on drugs. SC says this is an acceptable reasoning and upholds the statute. 23 Fritz- federal govt takes over railroad retirement fund. Came up w/ really arbitrary system of allocating benefits. The statute was not written or read by congress but the court says this is a rational relationship and upholds the statute. EXCEPTIONS TO RATIONAL BASIS (P WINS) Moreno- food stamp statute that was intended to keep hippies from participating in the food stamp program. Statute struck down as unconstitutional bc rank prejudice is never a rational basis. Romer v Evans- seen earlier in political representation- statute was predicated upon rank prejudice towards homosexuals- not constitutional. Cleburne v Cleburne Living Center- here the court treated mental retardation as an intermediate scrutiny group (usually treated as rational basis). Residential zoning statute prohibiting mental retardation home. City gave 2 reasons for its policy: 1) protection of high school kids nearby (court says this doesn’t work bc some of the residents went to that HS); 2) protection of residents bc home was on floodplain (court says this doesn’t work bc there was a nursing home nearby also and they didn’t seem so worried about those people getting flooded out). Ordinance is struck down as unconstitutional. Court rules under Moreno- rank prejudice, BUT Justice Marshall says this is not rational basis but intermediate scrutiny. Intermediate scrutiny (gender) Prior to 1970s, women got nothing from EPC. Bradwell, Minor, and Muller all used the rationale of paternalistic protection of women to uphold law practice, voting, and labor laws, respectively. Reed v Reed- Court uses rational basis scrutiny to strike down a statute that automatically favored men over women in administration of estates. Criteria for identifying new groups for heightened scrutiny standard: Brennan’s opinion from Fronteiro v Richmond 1) history of discrimination against the group 2) is the characteristic that defines the group immutable? (not able to be changed)? 3) Is the characteristic congenital (born w/ it)? 4) Is the group politically powerless (look at numbers-so small they cannot defend themselves in the political process)? 5) Relationship between the characteristics that define the group and the nature or the regulation (ex. Brown, there was no relationship between segregation by race and education)? Factors applied to gender: Gender discrimination received heightened scrutiny, making the govt come up w/ substantial interest. Here, though you look to whether the govt’s interest is merely 24 romantic paternalism. If this is their interest, it is not substantial and unconstitutional. HOWEVER, if the statute is based on “real difference” between the sexes, that is a substantial interest and may be constitutional. ALSO, administrative convenience is NOT a substantial interest. Craig v Boren-statute prohibiting non-intoxicating beer to be sold to males under 21, but females over 18 could buy it. This is the case that actually adopts the intermediate scrutiny standard for gender. The state’s rationale is safety (boys get more DUI’s than girls). Court says the numbers are inaccurate and actually boys and girls drive equally drunk but boys just get arrested more and girls are escorted home. Statute unconstitutional. LaFleur- regulation requiring female teachers to take maternity leave as soon as they get pregnant. Struck down on romantic paternalism. Stanton- statute requiring parents to support males until 21 and females until 18. struck down on romantic paternalism. Orr v Orr-statute requiring only men to pay alimony. Struck down on romantic paternalism. Goldforth v California- statute giving men half survivors benefits only if he can prove more than ½ support came from his wife. California v Webster- statute giving women higher multiple average of earnings in calculation of SS benefits. Congress wrote this statute is an AA rationale. It was upheld. Cahn v Shevin- statute giving widows (not widowers) an extra homestead exemption on property taxes. Statute upheld as AA program bc women had been discriminated against in the workplace in the past and would not have enough money to pay property taxes. Slessinger-military promotional statute that discriminated against men- court says bc the military discriminated against women in other aspects, this was an AA program trying to compensate for that discrimination. regulation upheld. Feeney- veteran’s preference on civil service exam (vets mostly men)- court upholds program bc no evidence of intent to discriminate against women. Gavaldi v Aio-state employee disability insurance program upheld bc you have to show discrimination exists against the program beneficiaries AND among people paying for the program. Basically, both men and women benefited from the program in this case (several male sexual conditions were classified as disabilities, but not pregnancy) California statutory rape statute- upheld bc the statute evens out the risk between men and women. Females already run the risk of getting pregnant so now the male runs the risk of going to jail. This is NOT romantic paternalism. 25 Roscar-challenge to draft registration requirement. statute upheld bc men had conceded that the military has the right to allocate combat positions to men and women differently. This is an administrative convenience statute BUT the military is different and can get away w/ a lot more in gender. Lamprecht-gender is gender (AA in gender gets intermediate scrutiny like discrimination in gender. Mississippi College for Women-single sex nursing school held unconstitutional bc it perpetuates the view that nursing is a female profession (since nursing is historically female). VMI-all male military school- state’s justifications were 1) pedagogical- general preference of single sex education and 2) admitting women would change the experience of students already there. Court held that women should be admitted BUT the school does not have to change the way it runs the school (except have separate quarters). Open question: can you challenge the actual standard (ex. lowering the amount of upper body strength required for firefighters)? Intent is required in gender cases!!!! WHY the statute is passed is key: Good- remedial or real difference Bad- romantic paternalism or administrative convenience First Amendment History- Levy book- 2 different ideas of free speech- see notes p 46 Anti-war free speech cases (WWI & II) Schaffer- this was the standard before the SC got involved. Test: bad tendency and effect- if material had the bad tendency an effect of leading to obstruction of the draft, the 1st amend did not protect the speaker. Schenk- conviction of creator of anti-draft pamphlet upheld. Test: clear and present danger analysis- does not matter what the words are, but the context in which they were said. Holmes- would give not protection under 1st amend during wartime. Debs v US- head of socialist party gave speech admiring draft evaders. Conviction upheld under clear and present danger analysis (again, the key is context) Frohwark- editor of German newspaper defended Kaiser; conviction upheld. 1st amend not intended to give immunity for every type of speech. Test: a little breath that would kindle a flame (context) Masses- Learned Hand opinion (was overturned on appeal but later adopted by the court) 26 Test: incitement analysis- looks exclusively at the words (must use action words) Abrams- pamphlets opposing American invasion of Russia. Conviction upheld as a clear and present danger Holmes’ dissent- people are stupid and why should the majority, who is wrong half the time, be able to imprison someone for using words to disagree? Speech should be used in the development of ideas. Here Holmes introduces the immediacy idea. Gitlow-advocate of violent overthrow of the govt. HOLDING: where the legislature has already identified the dangerous speech, clear and present danger does NOT apply bc the legislature has already assessed what is a clear and present danger in enacting the law. Holmes’ dissent: CPD does apply bc congress’ ability to control speech is controlled by 1st amend- this is the law today under Brandenburg. Whitney v California- Brandeis and Holmes’ concurrence- immediacy must be based on reasonable grounds to think that something will happen immediately. They also use Hand’s incitement language, adding immediacy. Test: if there is any time between when the speech was made and the action was taken, then the speaker is protected. EXCEPTION: conspiracy –if the govt has evidence of speech in a group context where, in addition to the speech there is an overt act (ex. buying fertilizer for a bomb) that is linked to what was said, it is no longer speech but conspiracy prosecution. Modern Rule 1) incitement (action words- ex. you should burn down the building!) 2) immediacy (ex. words led to a riot at that moment) 3) intent to cause the outcome Dennis- court formally adopts the Brandeis/Holmes analysis BUT having said that, court turns around and guts that analysis. Test:- court must look at the gravity of the evil discounted by its improbability. Yates v US- court modifies Dennis to say that a speaker must be concretely advocating something not just abstractly advocating (which would be just believing in something)- this basically goes back to the incitement “magic words” standard. Scales- speaker has to be doing something w/ the specific intent of furthering the goals of his group. Bohn v Floyd- overturns Eugene v Debs- no concrete action words were used. Watts v US- charged w/ threatening life of president. Conviction reversed. This was not a true threat but merely a political hyperbole. 27 Brandenburg v Ohio- MODERN STANDARD- reiterates Holmes/Brandeis Test: three components (govt must satisfy ALL) 1) clear and present danger- in context, speech is likely to lead to imminent lawless action. 2) Incitement- use of action words (from Masses) 3) Intent- intended words to lead to imminent lawless action Hess- this case turns on the imminence standard- depends upon how much the words look like a definitive plan. NAACP v Clayburne Hardware- SC uphold 1st amend free speech rights of boycott of white businesses in Mississippi. Court says the language was not threats but advocacy of force or violence. Turns on immediacy standard- any lapse in time between the speech and the action, speaker is protected bc during that time, people have a chance to think about their actions. Also, to be a true threat, an actual person being hurt has to be identified. Kingsley International Pictures- advocacy of anything, political or not, is protected under Clayburne as long as there were no actual depictions of sex that would violate obscenity statutes. Hustler-kid killed himself trying to do autoerotic asphyxiation seen in Hustler. Speech is protected as advocacy bc of the intent requirement in Brandenburg. Threats Watts-seen before. SC has not determined what is a true threat BUT Courts of appeals have: 9th circuit- Nuremburg Files- TEST: reasonable speaker- would a reasonable person (speaker) foresee the statement would be interpreted by the person spoken to as a serious expression of intent to harm or assault? 2nd circuit- US v Kellner- TEST: if threat, on its face and under the circumstances made, is so unequivocal, unconditional, immediate, and specific as to the person threatened as to convey a gravity of purpose and imminent prospect of execution, it is a true threat. (basically Brandenburg style) 6th circuit- US v Alkhabaz- TEST: if the threat, bc its particular purpose is to change the behavior of the person direct to, does not do so, or is not communicated to that person, it is not a true threat. 8th circuit- rape fantasy letter case- the fact that he communicated the information to someone he could have reasonably expected to tell the girl, it was a true threat. Teaching speech 28 Rice- hitman book. TEST: mere abstract teaching is advocacy (governed by Brandenburg). Mere teaching speech (not abstract) is governed by a reasonable person negligence standard Stuart v McCoy- treats this as advocacy- there was no intent, immediacy, or clear and present danger. Fighting Words Must be 1-1 Must be physically proximate Must constitute the 1st blow in a fight Cohen v California-established there is no such thing as captive audience outside the home. Also, govt cannot decide a word is impermissible in general in public discourse. Also form and content are treated the same way. One man’s vulgarity is another man’s lyric. Gooding v Wilson- guy arrested for telling policeman he would kill him- not fighting words bc there would not have been a true fight (guy was a policeman! Had a gun!) Rosenfeld- same situation except audience was kids- nobody is gonna fight the kids Lewis- same as above- mother to policeman- policeman not gonna fight the mom! Brown- not fighting words bc guy spoken to was a cop AND there was no 1-1 confrontation. Overbreadth Usually can only challenge statutes as applied, but in 1st amend can challenge on their face. If a statute limits speech, a substantial portion is protected, it is overbroad and unconstitutional. Limitations to this doctrineBroderick- overbreadth must be real and substantial as judged in its legitimate sweep Rocket v Spokane Arcades- if P is engaged in constitutionally protected speech covered by statute, can only raise as applied challenge. BUT if P is engaged in unconstitutional speech, he can raise a facial challenge. Osborne v Ohio-court can narrow the statute to the point where it is unconstitutional ONLY if: 1) def was on notice that the limitation was part of the statute, and 2) the jury convicting him was instructed based on the narrowed statute. Vagueness 29 Almost always raised in conjunction w/ overbreadth Requires statute be defined w/ such clarity that a reasonable person can understand what is prohibited and define it in a manner that limits arbitrary and discriminatory enforcement (gives def notice and limits discretion of cops) Content and Viewpoint regulation Can never regulate viewpoint Can only regulate content if: 1) the content is outside the protection of the 1st amend already 2) speech is a subset of an unprotected category of speech which represents an especially egregious example of the unprotected category (ex. threatening to kill president has especially egregious consequences than just threatening to kill just anyone) 3) secondary effects are distinctive from other types of speech (ex. zoning of adult theaters) 4) blue eyed actress- where there is no real threat of official suppression of ideas, the govt may regulate the speech Hate speech Wisconsin v Mitchell- hate crime enhancement is ok! The enhancement is for the MOTIVE not the intent. 1st amend does not come into play at all. 30