Constitutional Law II Outline Rosenberg – Spring 1998 Levels of Scrutiny I. Rational Basis A. Requirements – The court will uphold the government action so long as two requirements are met: 1. Legitimate State Interest – This is a very broad concept – practically any type of health, safety, or “general welfare” goal will be found to be “legitimate”. 2. Rational relation – There has to be a “minimum rational relation” between the means chosen by the government and the state objective. B. When used 1. Equal Protection – Here mere rationality review is used so long as no suspect or quasi- suspect classification is being used. II. Strict Scrutiny A. Requirements –This standard will only be satisfied if the governmental act satisfies three very tough requirements: 1. Compelling State Interest – The objective being pursued must be “compelling” (not legitimate, as for mere rationality” standard); and 2. Necessary means – The fit between the means and the end must be extremely tight 3. No Less Restrictive Alternatives – There must not be any less restrictive means that would accomplish the government’s objective just as well B. When used 1. Equal Protection – If the classification relates either to a suspect classification or a fundamental right. “Suspect classification” include race, national origin, and (sometimes) alienage. 2. Freedom of Expression – If the government is impairing free expression in a content- based way, then the court will use strict scrutiny and will most certainly strike down the regulation. In other words, if the government restricting some speech but not others, based on the content of the messages, then this suppression of expression will only be allowed if necessary to achieve a compelling purpose. Similarly, any interference with the right of free association will be strictly scrutinized. 3. Freedom of Religion/Free Exercise Clause – Even if the government does not intent to impair a person’s free exercise of his religion, if it substantially burdens his exercise of religion the government will have to give him exemption from the otherwise-applicable regulation unless denial of an expression is necessary to achieve a compelling governmental interest. III. Intermediate Scrutiny A. Requirements 1. Important Objective – This is halfway between legitimate and compelling 2. Substantially related – This is halfway between substantially and necessary B. When used 1. Equal Protection/semi-suspect – This will be used to judge an equal protection claim, where the classification being challenged involves a semi-suspect trait. Gender is a semi- suspect 2. Free Expression/Non-Content-based – This review will be used to judge government action that impairs expression, but does so in a non-content-basis manner. This is true of any content-neutral T/P/M regulation. Equal Protection I. Race A. Classification – is this a racial classification, must look at the statute 1. Explicit a. On its face – Any law, on its face that treat races different Korematsu v. United States – law put all Japanese in containment camps during WWII. The court held that this law on its face is classification, thus must use strict scrutiny. The court further upheld the law under SS. b. Separation by race – When a law is designed to separate races Brown v. Board of Education – Law separate blacks and whites into different schools. The court found this to be discriminatory on its face, thus applied the strict scrutiny test. Lovings v. Virginia – The state law prohibited inter racial marriages. Unlike Brown, this law effected both blacks and whites equally. The court found that effect was not the issue, but classification was the issue. Thus the court applied the strict scrutiny test. 2. Purpose / Intent – when the statute does not classify on its face, but the purpose/intent is to classify, then the statute will fall into the race based classification a. Statistics – If the statistics of who is effects is substantial, then the court will find a race based classification Yick Wo v. Hopkins – law said that all laundry stores must be in brick building. Any stores not in brick must get a permit. All Chinese laundry was in wooden building and the board would not give permits t the Chinese. The court found this to be classification because of the law was applied in a way that is racially discriminating and the statistics where substantial. Washington v. Davis – State had a test for police officers. The test was a standardized test. The statistics showed that 4 times as many whites pass as blacks and the department knew this. The court found this not to be a classification since there was no purpose and intent. b. History – Is the law inconsistent for what they done in the past (1) Specific Sequence – The events leading up to the challenged decision. For example, if the property had always been zoned for multi-family use, and had then been changed to single-family zone when the projected was proposed. Arlington Heights v. Metropolitan Housing – city refused to rezone the land from a single family to a multifamily zone. Thus the housing could not construct housing for races. The court found this not to be a racial classification since there was no showing of intent to discriminate. If the area was zoned for multi-family and then rezone to single when the plan was proposed that would more likely be racial classification. (2) Ignoring Factors – Ignoring factors that would usually be considered important. (3) Departure from normal procedures (4) History – the history of the act (5) Testimony by legislatures c. Government Knowledge of impact is not government intent (1) Fact that government knew in advance that its action would have an adverse impact on one race does not establish the purpose to have that impact, especially where there is evidence of nonracial purpose. Washington v. Davis – government knew the test impacted whites and blacks differently. (2) Fact that government knew in advance that its action would have segregated races does not establish intent. Memphis v. Greene – street used by blacks went through a white neighborhood. The city decided to close the street to reduce crime. The court found there to be no intent, even though there is going to be further segregation. d. Race Neutral Explanations for Actions – If the government offers believable, nonracial reasons for its action, courts are less likely to infer a racial purpose. The question then becomes whether the stated purpose is merely a proxy, or pretext, for racial discrimination. Washington v. Davis – The reason was to ensure literate officers Memphis v. Greene – purpose was to reduce crime. B. Strict Scrutiny – If the law is found to be a racial classification, then must apply the SS test to the law. 1. Compelling State Interest a. Remedy past discrimination – is a compelling state interest if: (1) there are specific findings of (2) identified discrimination (3) by the same defendant b. Diversity Note: The compelling interest is in diversity, not in proportionate racial representation - Bakke c. Prevent current of future discrimination d. Affirmative Action Regents of Univ. of California v. Bakke – 16 spots were open to Davis to only black students. The P did not get in even though he had a higher GPA and test scores then someone in these spots. The court found this to be a racial classification thus they looked at the state’s interest. The states interest was (1) to remedy past discrimination, (2) have diversity in schools, (3) Increase the number of minority doctors, and (4) increase the number of doctors in the minority community. The court said that (1) is not since it disadvantages others; (3) no because you can’t create remedies for something you didn’t violate and (4) there is no proof that there will be more doctors in minority neighborhoods. Thus (2) is the only legitimate state interest, but using quotes was not the best fit, race as a factor is enough. 2. Not-compelling state interest a. Proportionate racial representation (quotas) Regents of Univ. of California v. Bakke – by having spots for black student only causes a white student to be discriminated against and thus unconstitutional. The court said that race can be a factor but not the only factor. b. Remedy past discrimination by anyone else Milliken v. Bradley – State bussed blacks from Detroit to white suburbs in a different county to correct the discrimination in the Detroit county. The court struck this down as not a compelling state interest since it makes another county pay for the others discrimination. c. Remedy segregation not caused by the government Pasadena Cty Bd. Of Education v. Spangler – After the city integrated all the schools, the whites moved out and the schools were segregated again. The city tried to re-remedy the segregation. The courts said that since the segregation was not a result of state action then they could not fix the problem by race-classifications. d. Military or Prisons – courts are more deference to assert government interest when the military of prisons are involved. 3. Narrowly Tailored a. Remedial Goal (1) The governmental action does no more than is necessary to remedy past discrimination. The remedy should be limited to both scope and time. Adarand Contractor’s Inc. v. Pena – Law gave Ks to Ktor who used minority sub-Ktors. P lost a sub-contractor job to a contractor who used a minority bid that was higher than P. (2) Non race-based remedies are unavailable or would not work. United States v. Paradise – The court held it is fine for the district court to set up a system to promote blacks to remedy the past discrimination of not having blacks as state troopers. There was no other non-race classification that could remedy quickly. b. Diversity Goal – narrowly tailored means (1) Racial diversity is only one of several kinds of diversity sought to be achieved (2) Each applicant receives individualized consideration, regardless or race, and race is one of several factors to be considered (No quotas are permitted) (3) Non racial-based remedies are either unavailable or do not work – Paradise c. General Factors (1) Have other, non race-based alternatives been considered (2) Does the burden fall unduly on a few individuals (3) Race can never be used as a proxy for some other characteristic. If there is some other characteristic that is true aim of classification, rather than race, as the basis for classification. II. Gender A. Classification 1. Explicit – Government admittedly treats males and females differently based only upon their gender. Frontiero v. Richardson – law gave husbands more money for each child while women did not. The court found this to be a gender classification Craig v. Boren – Law prohibited sale to men under 21, and women under 18. Thus a gender classification. 2. Unstated purposes – Same notion as unstated purpose in race cases. a. Question of Fact – The sole relevant fact is the intent or purpose of the government – is the government action intended to treat individuals differently based on their gender b. Statistical – Showing gender-based impact can be sufficient only if they are outrageously egregious Personnel Administrator v. Feeney – Law gave preferences to veterans in hiring. The legislature knew that they are almost entirely male, thus they would only be hiring males. The court found that the intent was for veterans, not gender. Geduldig v. Aiello – State disability insurance did not cover disabilities accompanying normal pregnancy and childbirth. Court found that classification was pregnant persons versus non-pregnant person. Court also noted that total amounts paid to females for all disabilities, even excluding pregnancy, exceed amount paid to men California Federal Sav. & Loan Assn. v. Guerra – State guaranteed greater protection for disabilities related to pregnancy than to nonpregnancy-related disabilities. As above, court seemed to suggest that classification was between pregnant and non-pregnant. c. Legislative/Administrative or Other History (1) Contemporaneous statements by legislatures – Arlingtn Heights (2) Departure from normal procedures (3) Departures from normal substantial outcomes d. Government Knowledge – This does not establish intent to have impact. Fact that government knew in advance that its action would have gender-based impact did not establish the purpose to have the impact, especially where government provides evidence of gender-neutral purpose – Feeney e. Gender-Neutral justifications for action – This indicates no gender classification unless proffered justifications are a mere pretext or proxy for discrimination. If the government offers gender-neutral explanation for its action, court is less likely to infer a gender-based purpose. The question then becomes whether the stated purpose is a mere proxy, or pretext for gender discrimination. f. Each governmental entity is independent – Actions and intentions of county C cannot be attributed to neighboring county Y, or to the state as a whole – Milliken. 3. Separate but equal – it is unclear whether separate but equal opportunities for males and females would be a gender-based classification (US v. Virginia, fn 7) Note: The question of whether a classification is gender based often becomes mixed up with the question of whether an admittedly gender-based classification is justified. B. Intermediate Scrutiny 1. Important Governmental Objective a. Is it real – Did the asserted state interest really motivate the state action, or was it simply an excuse made up after the fact. The more clear it is that the state though through and considered its goals and its means of achieving them, the more likely the Court will be to respect the asserted interests. b. Traditional Gender Stereotypes – The actions will be more likely struck down, c. Benign Intent toward females – Action actually intended to help women are more likely to be upheld d. Military or prison – The court will grant greater deference to assert governmental interests in matters of the military or prisons. Rostker v. Goldberg – Court upheld federal law requiring only men to register for the draft. e. Examples (1) Not important interest (a) Mere administrative convenience – Frontiero (b) More females entering nursing school, when most nurses were already female – Hogan (2) Important interest (a) Remedy nonspecific past discrimination against females, it is enough that the government seeks to remedy past societal discrimination – Webster. Although modern trend is to show some disability suffered – VMI Note: It does not seem necessary to either define the past discrimination with any particularity, or to show that it was committed by the D. (b) The state has an interest in establishing diverse educational opportunities including single sex schools, so long as it does it evenhandedly – VMI. (c) Being able to effectively enforce criminal laws Micheal M. v. Superior Court – The law punished men for having sex with a minor but not women. The state’s purpose was to prohibit teenage pregnancies. The court upheld this because they felt there was a substantial relationship. The court said than women have there won deterrence by being pregnant. The law here is a proxy for women. (d) Helping the poor, sick, or uneducated 2. Substantially related a. Solving equality among sexes – If the statute is designed to solve a gender issue, then the means and fit will almost always work. (1) Diversity – Separate but equal programs Virginia v. United States – The court struck down the admission policy of admitting only boys. The state produced another school for women that was not equal. The court said separate but equal is okay, but these were not. (2) Privacy – separate restrooms b. Gender as a proxy for other characteristics (1) Acceptable (a) Female as a proxy for: i. past economic discrimination Califano v. Webster ii. Person who is more likely to be deterred from having sex by concerns of pregnancy then criminal sanctions Person likely to provoke a sexual assault by prison inmates (not assigned) Person less likely to have been promoted by the Navy (not assigned) Surviving spouse who is likely to need financial assistance (not assigned) iii. Male gender as a proxy for: Person who is not concerned about the natural consequences of having sex Micheal M. v. Superior Court (2) Unacceptable (a) Male gender as a proxy for: i. Person who will drive drunk if allowed to drink Craig v. Boren ii. Person whose spouse does not work Frontiero v. Richardson iii. Person better able (than a female) to serve as the administrator of an estate (not assigned) iv. Person who is better suited to the training United States v. Virginia – The state said that women were excluded because they would not be able to complete the training. The court struck down this saying that this might not be true for all. v. Person who can meet necessary physical standards United States v. Virginia – see above (b) Female gender as proxy for: i. Person whose earnings are not essential to the financial survival (not assigned) ii. Person who cannot benefit from certain kinds of training programs United States v. Virgina – see above c. Factors to consider (1) Where other gender-neutral means available and considered? (2) Statistical Craig v. Boron – 2% of all males drive drunk was not enough to uphold the fit of the statute. The fact that males are 10 times more likely the females to drive drunk was not considered by the Court. Micheal M. v. United States – The court ignored the fact that only 2% of all sexual encounters lead to pregnancy even though the government interest was to avoid pregnancy. The law was still upheld. The court instead looked at the fact that females are more likely to get pregnant then males. C. Cases Fortiero v. Richardson – Married men received money for each child, women did not receive this unless they could prove they had dependence themselves. The court applied the intermediate scrutiny test for the first time. Craig v. Boren – Law prohibited sale of alcohol to men 21 or older and women 18 or older. The state said there interest was to limit drunk driving since 10 times as many drunk drivers are men. The court looked at the statistics and found only 2% of men drive drunk and .2% of women, since these are very close and it did not punish the men for drinking the alcohol this law is not upheld. This is a horrible fit. United States v. Virginia – State had all boy military school that a girl wanted to attend. The state said that since (1) women are not physically able to complete the training, and (2) single sex education is good for everyone (no distractions). The court found this to be a gender classification and found that the interest was not relevant. First, some women can complete the training, and second, by keeping women out does not help their education. The court is more concerned with the real reason Virginia is excluding women. Note: The court says that separate but equal might be upheld Micheal M. v. Superior Court – Law punished males only, for having sex with minors. The state’s interest was to stop teenage pregnancies. The court found this to be a gender classification but the interest was substantial and the fit was good since there is already a deterrence for women and that’s being pregnant. Note: The dissent talks about a law focus on both men and women would fit better Gedulig v. Aiello – Statute would not give disability to pregnant women. The court found this not to be a gender classification. The classification is about pregnant women and non pregnant women. Furthermore, there is no intent to classify by gender. Rostker v. Goldberg – Federal law required only men to register for the draft. The court found this to be a gender classification but since this is a military decision it the court was going to give it more deference. Furthermore, women were not combat eligible, so the law fit the eligibility. The fit was good since it only required combat eligible to register. Mississippi Univ. for Women v. Hogan – State nursing college was for women only. This was a classification. The states interest was to remedy past discrimination. The court rejected this because nursing is not an area where women have been excluded. Califano v. Webster – Social security gave higher benefits to women not men for there earlier years. The court allowed this as an adequate remedy for past discrimination of women not making the same as men. III. Sexual Preference A. Level of scrutiny – The court will use a rationale basis to determine if the law will be upheld. Romer v. Evans – State amendment disallowed any law that would protect gays, bi’s, or lesbians. The court said this a violation of the equal protection clause. Since this is not a suspect group rationale basis is used. The court said this does not pass since no law that disadvantages a politically unpopular group cannot constitute a legitimate state interest. Note: The dissent says that this is not taking away from the group just keeping special things from being added. Note: This almost makes gays a suspected class. The court is saying rational basis but seems to be using a higher standard. IV. Other Classification A. Alienage 1. Level of Scrutiny – Aliens are a suspect class, thus strict scrutiny 2. Political function exception – the Constitution has an exception to keep aliens out of political positions (i.e. the Presidency). This has been brought down to police and teachers Ambach v. Norwich – Law did not allow aliens to be public school teachers. The court held them to be a suspect class. Thus cannot be discriminated against without strict scrutiny. Here the court applies the political function exception and finds that teachers can shape minds that thus under the political function exception, thus the law was upheld. Note: This is a case-by-case analysis. The state cannot exclude aliens from non- politically important jobs such as law, engineering, etc. B. Mentally Retarded 1. Level of Scrutiny – not a quasi-suspect or suspect, then rational basis test Cleburn v. Cleburn Living Center, Inc. – Zoning ordinance denied permit to build a home for the mentally retarded. The court said that the mentally retarded is not a suspect or quasi-suspect class. This group is too large and diverse and there are already protective laws. Furthermore, there is no ill-feelings towards mentally ill or past discrimination. The states interest was to protect the neighbors and the attitudes of the neighbors. The court struck down the law since there was no threat to any legitimate interest of the state. Thus there is no rational basis to treat mentally retarded any differently. C. Age 1. Level of Scrutiny – age is not suspect thus rationale relation Massachuttes Board of Retirement v. Murgia – Law required uniformed state police officers to retire at 50. The court said that old age is not a discrete minority, thus rationale basis. Everyone turns 50. The law was upheld. V. Fundamental Rights & Equal Protection A. Voting 1. Amendments – originally not in the Constitution a. 19th A – vote for women b. 26th A – age requirement to be 18 c. 24th A – cannot be poll taxes 2. State elections – There is no federal constitution provision for how states elect governors – Fortson v. Morris 3. Level of Scrutiny – Voting is a fundamental right, thus any law interfering must meet strict scrutiny. 4. Equal Protection – If it is not required that there must be an election, then the state may produce another way to do the election – Fortson. But once the state choices to use an election, any law that goes to inequality in that election will be under strict scrutiny. a. Poll Tax – this is inherently unequal since the poor can’t vote Harper v. Virginia Board of Education – Court held that the $1.50 poll tax as a prerequisite of voting was discrimination. It violated equal protection. Voting is a fundamental right. This was line drawing, the court was concerned with equating poverty with stupidity. Note: This is like Yick Wo. b. Ballot Restrictions – requirements that a voter own property or other “special interest” to entitle them to vote. This will be inherently unequal. Kramer v. Union Free School District – The law allowed only those who either had property in the district or a child in the district, to vote in the school district elections. The court struck down the law. Although there is an interest to only allow those effected to vote, here the law did not fit well since those had an interest in the outcome were excluded. This is strict scrutiny since it kept out people from voting. c. Apportionment and Gerrymandering – If the Ps can show that the use of race was the “predominant factor” in drawing the district lines, the districting scheme will be subjected to strict scrutiny. Shaw v. Reno – voting districts were assigned so that one district would be predominantly black. The court ruled that if the P can show that the districts where made because of race, then strict scrutiny would apply. The court relied on (1) this could result in separation, and (2) elected officials would feel that they must represent only the members of that races needs and not the needs of the whole. Bush v. Vera – Texas redistricts created predominately racial districts. The court applied strict scrutiny. Texas argued that the purpose was to protect the encumbrance. The court said that would be legitimate, but here that does not seem the purpose. The state disregarded usual criteria for creating districts and the districts were almost homogeneous. Furthermore, the size and shape and obscure. In totality strict scrutiny must be applied. B. Welfare 1. Level of Scrutiny – There is no fundamental right to welfare, thus the level is rational basis Dandridge v. Williams – Maryland welfare law put a ceiling of $250/month per family regardless of the size. The court said that welfare is not a fundamental right and thus only apply the rational basis. The statute was rationally related to the legitimate interest to encourage workers not freeloaders. Note: The dissent says this is an equal protection issue since it treats children form a large family different than those from a smaller family. C. Education 1. Lower spending a. Level of Scrutiny – There is no fundamental right to equality in public schools, thus rationale basis. San Antonio Ind. School District v. Rodriguez – The state’s tax plan gave schools money from the property tax of the area. The gave a school in a poor district less money than that of a wealthier area. The court stated that poor people are not a suspect class because member of the class had not been subject to unequal treatment, and where not politically powerless. It is the judgment of the state on how they give out there money ad the court will not 2nd guess. 2. Complete denial of Education a. Level of Scrutiny – since this is a complete denial of a fundamental right, strict scrutiny is applied Plyer v. Doe – State denied education to the children of illegal immigrants. The court said that education is an important benefit under the equal protection clause. The state did not have a legitimate reason to punish the children for the parents actions. Furthermore, this would make a sub-class of illiterate people which is not in the state’s interest. Also, immigration is a federal matter not a state, some of these children might not be deported and thus end up illiterate. Note: Not known if Rodriguez is still good since it said education is not a fundamental right, and not under the equal protection clause. Note: This is how you look at it, this case focused on the child, Rodriguez focused on the school D. Abortions 1. Level of Scrutiny – Although abortion is a fundamental right of privacy, having the government pay is not, thus rational basis Maher v. Roe – Court upheld law than denied medi-care for abortions. The court held that this does not violate the equal protection from women who wish to have childbirth and others who want abortions. Freedom of Speech I. Rights Protected A. Expression 1. Symbolic Speech Texas v. Johnson – D charged with burning the flag. 2. Spending money – used to get a message across Buckley v. Valeo – Law said that nobody can give more than $1,000 to any one particular candidate or political committee. The court upheld this because its only a limit on spending money not on speaking. Anyone can go out and spread the message as much as they want. The court identifies a compelling government interest in trying to limit corruption promote equality among candidates. This has to pass strict scrutiny which it does. As long as there is no limit to communication then that’s fine, just not on one candidate. The second part was expenditures on political campaigns. That part was struck down because it was not narrowly tailored and there wasn’t so much danger of corruption (harder to corrupt the entire process than 1 candidate). B. Compelled 1. Right to not be compelled to say what you don’t want to say Wooley v. Maynard – Court said you cannot force people to bear or say the government slogan on your own private property. Here its license plates with a slogan “live free or die”. 2. Right to not be compelled to finance or endorse any political or ideological views Abood v. Detroit Bd. Of Education – government forced employees to join the union and those dues were used to pay political views. The government rejected this as forces people to endorse a view. Note: In CA the Avocado growers had to pay dues for commercial advertisements. The court allowed this more as a tax than forcing the governments message. II. Government Action A. Non-state action – The 1st A is a restriction of government action. It does not protect against non-state action. B. Affirmative Action – The 1st A does not require the government to take any affirmative action to help people speak 1. Exception – hostile audiences Edwards v. South Carolina – 187 black demonstrators demonstrated peacefully in front of 200 onlookers. They were arrested for breach of the peace. The court said the arrest was invalid since there was enough officers to protect from any violence. III. Analyzing 1st A Questions A. General – When the government takes some action that interferes with free expression, the constitutionality of that action is best evaluated by analyzing: (1) expression being regulated; and (2) the government action, along several continuum, as explained below. B. The expression being regulated or restricted 1. Value of Speech a. Most protected – ideas, philosophy, political speech, art, science, etc. are of the highest value b. Less protected (1) Indecent, vulgar, and offensive – These words have been held to be of a lower value. FCC v. Pacifica Foundation – dirty words “lie at the periphery of 1st A concerns” Note: Compare Cohen which states “one man’s vulgarity is another man’s lyrics.” “we cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which may often be the more important element of the overall message sought to be conveyed.” American Book sellers Ass’n v. Hudnut – “pornography is not low value speech within the meaning of Pacifica or Renton” (2) Commercial Speech – While protected if it is truthful, non-misleading advertising of a lawful product, is somewhat less protected than, say, political speech, but the extend to which it is less protected or less valuable is unclear. (a) Four Part Test i. Is the expression protected (must be about lawful activity, and not mis- leading)? ii. Is the government interest substantial? iii. Does the regulation advance the government interest? iv. Is the regulation more extensive then necessary? Central Hudson Gas & Elec. Corp. v. Public Service Com’n – The state law prohibited electric companies from advertising during peak use to avoid brownouts. The court rejected this applying the 4-part test. Note: The state could of just regulated the use Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council – Law prohibited pharmacies from advertising pricing. The state said this was to stop price wars, lower prices and reduced serviced. The court said that this was information and protected speech, thus cannot be regulated as long as truthful and not misleading. Note: The state could of just set the price of drugs so that there would be no price wars. 44 Liquormart, Inc. v. Rhode Island – Law prohibited the advertising of alcohol prices to reduce alcohol consumption. The court struck down since the law does not fit the interest. Although the court did not explaining constitutional status of lesser restrictions c. Least Protected (1) Obscenity (a) Miller standard i. The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest (shameful or morbid interest in sex) Note: What the community standard for the internet? See Reno v. ACLU ii. The work depicts or describes, in a patently offensive way (as determined by applying community standards), sexual conduct specifically defined by the applicable state law. iii. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value Miller v. California – D was convicted for mailing obscene material. The issue was whether this was obscene. The court applied the above test for the first time. Before the test was if it lacked any social value it was obscene. Cohen v. California – “Fuck the draft”. The court held this not to be obscene because it does not stir up sexual matters or stimulation. American Book Sellers Ass’n v. Hudnut – law prohibited all pornography of women. The court struck down the law since it did not talk about community standards, or whether the “speech” lacked any literary, social, etc. value. (2) Kiddie Porn – Kiddie porn is of low value. Whether it is protected at all is unclear New York v. Ferber – Held that it is not protected at least where it involves either live performances or photographic or other visual reproduction of such live performances. The extent to which the case rested on the low value of the speech, as opposed to the government’s interest in protecting children involved in the production of kiddie porn is unclear. (3) Taunts, verbal abuse, and intense provocation (a) Fighting words – Unprotected in part because of their low value, and in part because of the important government interests in protecting the listener and preserving the peace. i. Defined – expression that 1. by its very utterance inflicts injury or tends to incite an immediate breach of the peace; and Chaplinsky v. New Hampshire – Jehovah’s witness was arrested for saying “things” to the sheriff. The court held that if the words would cause a RPP to fight then the speech is not protected. “such utterances are no essential part of any exposition of idea, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality” Note: This is old law, but not clear if overrulled 2. is directed at the listener individually. It is unclear when words alone, not accompanied by some kind of “in your face” conduct, can meet this description. Cohen v. California – D had “Fuck the draft” on his jacket. The court said that this was protected. To be fighting words must be directed at a single person. “one man’s vulgarity is another man’s lyric.” “we cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which may often be the more important element of the overall message sought to be conveyed” American Book Seller’s Ass’n v. Hudnut – law prohibited all pornography of women. The court agreed with the city’s argument that this was fighting words, but struck down because it was not imminent. ii. Low value 1. Fighting words “are no essential part of the exposition of ideas, and are of such slight value as a step to truth that any benefit derived from them is clearly outweighed by the social interest in order and morality.” 2. But note that fighting words are not entirely without value (b) Hostile Audience i. The speaker “passes the bounds of argument or persuasion and undertakes incitement to riot” by overly antagonizing and taunting a hostile audience (this is the low value part); and ii. There is a clear and present danger of riot, disorder, etc. (This relates to the important government interest in preventing violence) Feiner v. New York – D called president a nazi in front of a group of angry people and was arrested. The court upheld the arrest since the speech was not protected as to antagonize a hostile audience. (4) Incitement – speech which advocates violence or overthrowing of government (a) Dennis / Brandenberg Test i. Clear and Present Danger – is the danger clear and present – Dennis test. Note: it is unclear if this prong is still met or if Dennis is overruled. Dennis v. United States – D was convicted for conspiring to overthrow the government by being a member of the communist party and teaching others to prepare for a violent overthrow. The court suggested that the more severe the danger, the less imminent and/or likely that danger needs to be in order for the speech to lose its constitutional protection – clear and present danger. This notion may survive Brandenberg. ii. Imminence – must advocate a imminent threat iii. Intent - Intended to produce imminent lawless action (low value); and iv. Likely to produce – high probability that imminent lawless action will occur weighed against the gravity of the evil (implicates important governmental interest in preventing imminent violence – Brandenberg) Brandenberg v. Ohio – Leader of KK was filmed by TV reporter and advocated violence against the government. The court held this to be against the 1st A. The court reasoned that speech is unprotected only if there is intent to produce imminent action and likely to produce that action. 3. Importance to the Speaker – Most of the time, any speech interest is important. However, on a few occasions the Court has noted the relative unimportant to the speaker of the 1st A interest asserted: a. Cable operator’s speech interest in not having to transmit programming is small - Turner b. Speech interest in being able to contribute more that $1,000 to a political campaign is slight Buckley v. Valeo – Law said that nobody can give more than $1,000 to any one particular candidate or political committee. The court upheld this because its only a limit on spending money not on speaking. Anyone can go out and spread the message as much as they want. The court identifies a compelling government interest in trying to limit corruption promote equality among candidates. This has to pass strict scrutiny which it does. c. Corporations are entitled to 1st A protections just like individuals First Nat’l Bank v. Bellotti – statute made it criminal for a bank to give money to any election unless it deals with property or money issues directly. The court struck down this as a prohibition of speech by a corporation which is entitled to the same protection as individuals. 4. Location Where the Speech Occurs a. Most protected – In the speaker’s own home: government is least able to regulate a person’s speech in her own home. Stanley v. Georgia – D was convicted of having obscene material in his own home. The court said that this was both a 14th A fundamental privacy right (in the own home), and 1st A right to listen to whatever speech you want in your own home. Note: The material is still obscene, thus taking it outside can be a crime, thus going out, buying and transporting can be a crime. b. Very protected – Public forums: government regulation of speech in a traditional public forum is subject to strict scrutiny (1) Public Forum defined – government property that has traditionally been available for public expression (2) Examples: (a) Sidewalks Madsen v. Women’s Health Center – law said that a one cannot picket in a 300 foot buffer zone around an abortion clinic. The court struck this down since it went to far and stopped speech in a public forum (b) But not airports International Society for Kirshna Consciousness, Inc. v. Lee (ISCON) – Kirshna’s were soliciting funds in the airport. The court ruled that this is not a traditional public forum, there are security risks. Furthermore, it slows the commercial flow. Note: The concurrence says that even if this a public forum, can put them in a booth because of the risks. c. Limited (designated) public forum – property that the state has opened for expressive activity by part of all of the public. With respect to the part of the public for whom the state has made the forum available, it is treated the same as a public forum, ISCON. Also the state cannot select the groups to whom the forum will be made available on the basis of content of the speech. Heffron v. Internatial Soc. For Kirshna Consciousness – Krishna’s wanted to hand out leaflets at the state fair. The fair wanted them to be in a booth. The court said this was fine. The fair is a public forum and this was only a manner restriction. d. Speakers private property other that the home – may not be as protected as her home (1) Workplace – since employees are a “captive audience” of the employer, government is more able to regulate speech/action in the workplace, even though it is the employers private property (2) Cable TV operator who owns the cable Denver Area Educational Telecommunications Consortium Inc. v. FCC – law required cable operators to black out channels with “obscenity”. The interest was to protect children. The law said that to activate viewer must ask in writing. Furthermore, the law said that cable operators cannot blackout public access even if obscene. The court struck down both of these since there is less restrictive ways to promote. e. Government operated property – regulation of speech on government property that is not a public forum need only be “reasonable,” so long as there is no viewpoint discrimination. (1) Airports ISCON v. Lee – The solicitation of money in the airport could be regulated because there is a reasonable government interest in security risks and commercial flow. But the banning of leaflets is not since it does not go to security or restrict the flow of commerce. The only thing that they can do is have reasonable time place and manner restrictions. (2) Public transportation Lehman v. Shaker Heights – Public transportation authority sold cards to commercial advertising but restricted political or public issues. The court held this was not a public forum, and there was a captive audience. Thus reasonable restrictions are allowed. Here the court found by doing this minimized the risk to the captive audience. Note: This is a case where the government is doing business, in those cases the government is allowed to restrict. f. Property of others – least protected. Government can regulate speech that intrudes into the private property of others without their request or consent (i.e. nuisance and trespass laws) Firsby v. Shultz – Ordinance prohibited picketing in from of ones home. The court upheld this since it is more like nuisance and a secondary speech. This goes to the manner note the content. FCC v. Pacifica Foundation – vulgar speech over the radio can be restricted because by going into the radio it enters peoples homes and is highly intrusive. C. Government Action 1. Governments role a. Government as regulator – of other people’s messages, rather than as simply delivering its own messages, the more closely that the government will be scrutinized. (1) The more a public forum subject to regulation or restriction, the more likely that the court is going to say that the government is regulating rather than speaking. Rosenberher v. University of Virginia – The school funded all programs except religious ones. The court rejected this since it was not paying for speech but selecting speech and discriminating certain viewpoints. (2) Ask whether the government is rewarding good speech(government using the spending power) or punishing bad speech(or withholding funds from speech that it does not agree with) from its own perspective. b. Government as speaker – (or rewarder) is subject to extremely limited scrutiny (1) When the government expends funds to transmit its message, the government can dictate the message it wants to transmit. (2) Examples – politicians making speeches, or government funding programs to get its message across Rust v. Sullivan – Federal funding went to doctors who did not discuss abortion. The court allowed this since they are not stopping speaking, just paying for speech. (3) Limitation – the government cannot dictate what government employees or agents say when they are acting in their capacity as private persons rather than as reps of the government and are not interfering with the government’s own operations (Tinker) c. Government as educator – actions must be reasonably related to legitimate pedagogical concerns (1) School-sponsored (and faculty supervised) expressive activity that students, parents, and other members of the public might reasonably perceive to bear imprimatur of school, and that are designed to impart some knowledge or skill, put the school in the role of the educator rather than regulator. Reasonableness test. Hazelwood v. Kuhlmeier – HS news paper restricted 2 articles about divorce and pregnancy. The reason was because of how controversial they were and to protect the identity of a teenage girl. The court held that the school can regulate the content, the 1st A is not the same for students as adults. The court found this to be reasonably related (not strict scrutiny). The school was not trying to create a public forum (like Rosenberger). Tinker – school prohibited black armbands on student in protect of the Vietnam war. The school said that they disrupt the classrooms. The court held this not to be reasonable and not related to the disruption at school. The big difference her is that this is not a school sponsored activity. d. Government acting as proprietor – Actions must be reasonable in light of the facts and circumstances (not no viewpoint discrimination allowed) (1) Examples (a) Post Office – USPS (b) Airport ISCON v. Lee – The stopping of solicitation was reasonable, but banning the handing out of leaflets is unreasonable. The reason is leafleting in airports is not as overbearing as solicitation, dos not stop the flow of commercial activity, nor does it go to security risks. Thus the manner restriction is unreasonable. (c) City busses Lehman v. Shaker Heights – Public transportation authority sold cards to commercial advertising but restricted political or public issues. The court held this was not a public forum, and there was a captive audience. Thus reasonable restrictions are allowed. Here the court found by doing this minimized the risk to the captive audience. (d) School districts internal mail system – Perry e. Government acting as regulator (or punisher or censor of bad speech) – When the government is regulating the behavior of individuals (punishing or restricting bad speech), its actions are scrutinized the most closely (Strict Scrutiny). (1) limiting what and/or where and/or how private persons can express themselves in a public forum Chicago Police Dept. v. Mosley – City ordinance prohibited all picketing within 150 feet of schools except peaceful labor disputes. The court struck down this law since it was content discrimination. It distinguished between peaceful labor picketing and all other kinds in a public forum. The law itself was in terms of subject matter, not time place or manner. (2) limiting speech on the internet Reno v. ACLU – Statute prohibited the transmission of patently offensive material to minors over the Internet. The court rejected this because anything sent might get in the hands of minors, thus people will stop using the internet. Furthermore, there is no history of regulation as TV and radio. The government has the burden of showing that a less restrictive way would be futile. (3) ordering (rather than hiring or rewarding) private citizens to deliver the government’s message Miami Herald Pub. Co. v. Tornillo – Florida statute forced newspapers to print candidates right of reply to previous criticisms in the paper, free of charge and equal to the manner in which the criticism was. The court struck down the law because it forced the paper to print content, freedom of speech is right to say whatever you want and not say whatever you want. Wooley v. Maynard – Court said you cannot force people to bear or say the government slogan on your own private property. Here its license plates with a slogan “live free or die”. f. Open Questions (1) When the government expends funds to encourage a diversity of views (as opposed to giving its own view, or subsidizing transmittal of a message it favors), it is acting more as a regulator/censor than as a speaker; Where should the line be drawn? (2) If government orders an individual to subsidize someone else’s speech, it is acting as a regulator, subject to strict scrutiny – Abood. But government can order individuals to pay taxes, which it can then use to subsidize delivery of its own message. Where is the line between forcing someone to subsidize or deliver a message and government taxing and spending to deliver a message? 2. What is the government regulating or restricting – Government action limiting harm unrelated to the content or viewpoint of the message being expressed is more likely to be upheld than limiting communication of the ideas or message sought to be expressed, even when both regulations are applied to the same act a. O’Brien Test (1) Be within the constitutional power of the government (2) Further an important or substantial governmental interest unrelated to the suppression of free expression (3) Be only on incidental restriction on speech that is no greater than is necessary to the furtherance of the important governmental interest in (b) above. Note: Don’t really believe that “no greater than is necessary” part. In Renton, for example, the Court stated that the regulation could stand because it left open “reasonable alternative avenues of communication.” See also Clark. This restriction has to do with the “fit” between he government interest and the restriction United States v. O’Brien – D was convicted for burning his draft card. The court created the 4 part test and applied it. The court upheld the conviction since it restricts the manner, not the content. The D could show his feeling about the draft without burning his card. The government interest was the draft and the cards were part of it. b. Most subject to regulation – Conduct or action unrelated to the message of the speech (Time/place/manner restrictions) require an intermediate level of scrutiny (O’Brien Test) 2. Secondary effect of speech – A regulation aimed at secondary effects is held only to the O’Brien standard, and not a strict scrutiny test, Renton. (1) Examples Renton v. Playtime Theatres, inc. – Zoning law disallowed adult theatres from area of residential, churches, parks, or schools. The court upheld the law even though the speech is protected (never defined as obscene). The regulation is designed to “prevent crime, protect retail trade, and protect property value, and not to suppress the expression of unpopular views.” This law was aimed at the secondary effects of the speech, and not at the speech itself. They are not trying to control the number of speeches, or what they say, just where they say it. Ferber v. New York – Laws against kiddie porn were upheld at least in part because of the child abuse inherent in the production of the material. While the court did not speak of secondary effects, that seemed to be a focus of its decision. Barnes v. Glen Theatre, Inc. – Law prohibited all public nudity and required all female dancers to where a minimum of a G-string and pasties. The court upheld this law as a manner restriction applying the O’Brien test. The court said that protecting morality is an important government interest. The use of G-strings and pastries does not reduce the content of the erotic message. (2) Limitations American Book Seller Ass’n v. Hudnut – city law against pornography of women to protect women. The court held that this law would stop women portrayed poorly with great literary benefit, but deny women portrayed equality with sexual content, thus not to the effect. 3. Conduct that accompanies the speech and makes the message overbearing or threatening (1) The argument – In some cases, the court has been somewhat tolerant of governmental regulations aimed at expression accompanied by conduct or behavior that makes the message particularly hard to ignore or resist, and that could result, in or lead to, abuse or fraud. (2) Test – Apparently, such regulations are looked at more closely than the O’Brien test, but less closely than pure content or viewpoint regulations. (3) Examples (a) In person solicitation – by attorney (but not by accountants), can be prohibited Ohralik v. Ohio State Bar Assn – Upheld the law that forbid lawyers from soliciting people by accosting them. The state interest was to promote the fair bargaining principle and the field of law. Note: solicitation for money could also be considered commercial speech, thus less protected. (b) In person solicitation and collection of contribution ISCON v. Lee – as opposed to mere dissemination of information) by Krishna’s in the airport can be prohibited (c) In you face – type utterance of highly offensive can constitute fighting words, but the same words would not constitute fighting words if not addressed to a specific individual (4) The response (a) Noncognitive aspect of communication is important and protected – Hudnut. (b) Emotive content is important and protected, and cannot always be conveyed by pure rationality – Cohen. (c) Also recall that in-person solicitation by a CPA as opposed to a lawyer, is protected 4. Content of the speech – When the government seeks to regulate the topic or subject matter being discussed, rather than the speaker’s conduct, or secondary effects, the regulation is subject to closer (strict) scrutiny. 5. Viewpoint discrimination – Restricting only one side of the argument is the most difficult to justify (1) Examples: Texas v. Johnson – D was convicted for burning a flag. The Court struck this down this because this went to the expression itself not the manner. RAV v. St. Paul – even though the statue was limited to fighting words, it was struck down because of its inherent viewpoint discrimination. Board of Educ. v. Pico – school banned certain books from the library for being anti-American, anti-Christian, anti-Semitic, and just plain filthy. The court held this to be a violation of free speech. Even though school boards have a substantial legitimate role to play, that discretion may not be exercised in a narrowly partisan manner, i.e. no viewpoint discrimination allowed. Heffron v. International Society for Krishna Consciousness – Krishna’s wanted to hand out leaflets in the state fair. The fair required them to be in a booth. The court said this was fine, it only restricts the manner. What the fair could not do is restrict them completely, that would be a content discrimination. (2) Ways to discourage certain viewpoints without it being “viewpoint discrimination”: (a) Government can enhance penalties for hate crimes, so long as the crime being punished does not consist only of the speech or expression of bias Wisconsin v. Mitchell – Court upheld a law that enhanced a racial motivated battery. (b) Government can, consistent with the 1st A, limit the person to whom certain speech can be addressed, but this tact might cause some equal protection problems. 6. Open Question – Note that for almost any “content neutral” regulation, arguments can be made that it is really content discrimination. For almost any content regulation, arguments can be made that it is really viewpoint discrimination. 7. Process issues – When government regulates expression on an ad hoc basis, its motives will be scrutinized more closely (and the regulation is more likely to be struck down as being the result of viewpoint or content discrimination) if government does not use established, regular, unbiased procedures for review of the questioned materials. 3. Government Interest a. Legitimate Interest (unrelated to speech, sufficient to justify T/P/M restrictions) (1) Health – No talking so loud that it will burst peoples’ eardrums (2) Protecting property – Clark (3) Protecting against antitrust violations or monopolies – Turner (4) Protecting the draft registration system – O’Brien (5) Preventing the evil of public nudity – Barnes v. Glen Theatre, Inc. (6) Protecting the sanctity of the vote – Burson v. Freeman b. Very important (compelling) interest (sufficient to justify content regulation) (1) Preventing imminent violence (a) Incitement (per Brandenberg) i. intent to incite imminent unlawful action (i.e. low value speech) ii. likely to incite imminent lawless action (the important interest) iii. Maybe imminence is not necessary to justify suppression of speech if the future violence is bad enough and/or likely enough – Dennis (b) Hostile audience i. The speaker passes the bounds of argument or persuasion and undertakes incitement to riot by overly antagonizing and taunting a hostile audience (i.e. low value speech); and Feiner v. New York – D called president a nazi in front of a group of angry people and was arrested. The court upheld the arrest since they could not protect the speaker or stop the riot that might ensue. ii. There is a clear and present danger of riot, disorder, etc. (the important interest) (2) Protecting the listener (a) Children – protecting children (government interest) from exposre to obscenity, pornography, and even offensive language FCC v. Pacifica Foundation – The radio signal during the day intrudes into the home and is readily available to children. Thus restrictions of the time of presentation is allowed to ensure children do not listen. Reno v. ACLU – statute prohibited the patently offensive material to be transmitted to a minor over the Internet. The focus was to protect children. The court said that this law will not protect children better than other forms of user based software and thus not less restrictive. (b) Captive audience – protecting even adults from offensive and/or abusive or threatening speech is important in situations where it is difficult or impossible for the listener to escape (when the listener is a captive audience) i. Examples of captive audiences 1. Riders in city busses – Lehman v. Shaker Heights 2. Individual in her own home being picketed – Frisby 3. Workers subject to hostile environment in the workplace – R.A.V. v. St. Paul 4. Consider also the fighting words notion that the words must be “in your face” to a specific individual 5. TV and radio are more subject to regulation because they are more intrusive than the internet. – FCC v. Pacifica Foundation, Reno v. ACLU (3) Protecting children from sexual abuse New York v. Ferber – law made kiddie porn illegal. The court upheld to protect children from exploitation and abuse. (4) Protecting the electorate process justified content regulation (prohibition of soliciting votes or distributing campaign literature) in a public forum (the sidewalk), within 100 feet of the entrance to the polling place Burson v. Freeman – law prohibited solicitation of votes within 100 ft of election. The court upheld the law under strict scrutiny. The interest was the integrity of the voting process, and the 100 ft is the least restrictive method of upholding the interest. (5) Access Conflicts – government has no obligation to ensure anyone access to an audience or to any media, but it has an important interest in ensuring such access in certain situations (a) Where government itself allocates scarce resources, it can take steps to ensure that different speakers get access to those resources Red Lion Broadcasting Co. v. FCC – TV stations must allocate time for other candidates to produce there view – this is the “Fairness” doctrine. The Court upheld this because TV stations are given a license which is more of a public trust and with public interest (unlike newspapers), this goes to regulation not censorship. (b) Government has an important interest in ensuring that local television continues and in promoting “widespread dissemination of information from a multiplicity of sources.” Turner Broadcasting System, Inc v. FCC – This is a must carry provision to carry local channels on there cable networks. Congress was concerned with the monopolistic practice of cable. The court upheld so long as without this stations would be at a serious risk of finical difficulty. This is about profits and money. The court found this to be a time/place/manner restriction, not content, they wanted to ensure everyone had access. Note: The majority applied the O’Brien test. The minority wanted this under strict scrutiny since it was focused on content and one type of individual. (c) in the public forum, when 2 groups are mutually hostile and one (or both) is threatening the other, government should take reasonable steps to allow both sides to speaks Edwards v. So. Carolina – 187 black demonstrators did a peaceful demonstration in front of a crowd of 200. The demonstrators were arrested for breach of the peace. The court rejected the conviction since there was no threat of violence and there was enough police to ensure that violence would not happened. Thus the police must allow them to speak. Terminiello v. Chicago – D made speech inside while mob was outside. He said things that incited the mob and then was arrested. The court dismissed this because that is the purpose of free speech to invite dispute. But it can restrict one side when necessary to avoid violence Feiner v. New York – D called president a nazi in front of a group of angry people and was arrested. The court upheld the arrest since it was to avoid violence, the government interest. Note: Although what efforts must the police make so that the D can speak? Skokie – Nazi party wanted to march in a Jewish town. The town made everyone who wanted to march to get a permit. They denied the permit. The court said that they may not deny the permit and must set up what is necessary to allow them to speak. (6) Military or public schools or children – always increase the weight of government’s interest 4. How good is the fit? a. How restrictive is the regulation – A regulation should not restrict more speech than necessary, nor restrict speech more harshly than is necessary. (1) Overbreadth (vagueness) (a) Overbroad – a regulation is overbroad if it prohibits too much speech, but it most be substantially overbroad. (Reno v. ACLU)(See Denver Area ETV) Terminello v. Chicago – D was arrested for inciting a mob with names. The court held that the statute of breaching the peace was overbroad, that is what the court focused on. Cohen v. California – “Fuck the draft”. The court held this to be overbroad since the violation was for “disturbing the peace.” (b) Vague – a regulation is vague if it is unclear what speech is prohibited and what is allowed by the regulation Reno v. ACLU – The CDA was vague and overbroad because obscenity it outlawed any image or other communication that depicts or describes in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs. Thus any anatomy books on the web would classify. (c) D’s conduct – even if D’s conduct is obscene, the statute can still be struck down because of overbroad or vague. (2) Statute as construed – overbreadth and vagueness analysis are to be applied to the stature as interpreted by the states highest court where the language is broad or narrow, the interpretation may apply it narrowly or broadly. R.A.V. v. St. Paul – Court interpreted the broad fighting words statute to only apply to the manner, not the content. (3) Standing –Litigants whose own conduct is unprotected can still have standing to challenge a regulation as overbroad if the regulation is “substantially overbroad,” and would deter significant amounts protected speech (4) Caveat on viewpoint discrimination – the less speech there is being restricted , the more likely it may be that there is viewpoint discrimination R.A.V. v. St. Paul – D was convicted under statute that says you cannot place any symbol if you know it is likely to arouse anger on the basis of color, creed, or religion. The D burned a cross in black family’s yard. The court said that the statute should be interpreted only to manner and that the manner can be regulated. The State could have prohibited all fighting words, but it could not prohibit only some fighting words without prohibiting others. (5) Tailoring – A statute is not tailored narrowly enough if it restricts speech more severely than is necessary to accomplish the government interest (a) Complete ban on speech – almost impossible to justify Liquormart, Inc v. Rhode Island – complete ban on truthful commercial speech for a legal product unconstitutional Stanley v. Georgia – even obscenity cannot be banned inside a person’s own home. (b) Channeling – Regulation that leaves open ample alternative channels for the communication is more likely to be upheld (Pacifica) Renton v. Playtime theatres – zoning law kept adult theatres out of certain neighborhoods. The other channels to communicate where other areas of town. (c) Regulation based on content – If the regulation is based on content or viewpoint, the Ct. is likely to find fault with the channeling if less restrictive means of achieving the governmental interest are available or have not been explored (Reno)(Denver Area ETV) 5. Other Factors a. History and Tradition ISCON v. Lee – considered in determination of whether property is a public forum. Here the court said that traditionally it was not. Compare with Reno and Red Lion( government is more able to regulate broadcast media than the internet in part because there has been a history and tradition of such regulation.) b. Military or Schools – 1st Amend. Rights of students in public schools and of soldiers in the military are not co-extensive with the rights of adults in other settings. Hazelwood School District v. Kulhmeier – School restricted 2 articles from being printed. The court held that student of public schools do not have the same rights to the 1st A and adults. IV. Prior Restraints A. General – laws that prevent people from printing certain items (i.e. top secret, attorney/client, etc.) B. Exception – The government cannot stop someone that the public reached unless it can show imminent danger. New York Times Co. v. United States – Newspaper wanted to publish top secret “pentagon papers”. The court held that the New York times can publish, unless the government can show imminent danger of publication. Note: The minority says they can always publish and the government can never stop them. The Dissent says, if its top secret, they can stop them Note: The government can stop them by bringing charges upon then for gaining the information, or for leaking, or liability for allowing them to leave. Freedom of Religion I. Lemon Test A. Government action must have a secular purpose 1. Primary effect must be secular 2. Must not foster excessive entanglement between government and religion II. Lemon Test Applied A. Secular Purpose (see generally Arlington Heights re reestablishing improper legislative purpose) 1. Court will normally accept state’s asserted purpose as legitimate, Mueller v. Allen 2. Adverse or beneficial impact alone will not establish an improper purpose, Mueller v. Allen, Agostini v. Felton 3. Court will infer an improper purpose (i.e., to advance religion, or to advance a particular religion) where asserted secular purpose appears to be obvious sham, Epperson, Edwards v. Aguillard B. Effect – question arises if government action does or appears to adopt, endorse, encourage, or financially benefit one or more religion 1. A few of the main ways the test has been restated: a. Is there the impermissible effect of state-sponsored indoctrination, Agostini b. Is there a symbolic union between government and religion, Agostini c. Does the government practice communicate a message of endorsement of religion to the reasonable observer, Allegheny d. Does the state action create any financial incentive for students to undertake sectarian education (or for individuals to change their attitudes, beliefs or practices concerning religion), Zobrest 2. Important Factors in determining whether state action has an impermissible effect: a. Neutrality – Is aid allocated on the basis of neutral, secular criteria, Agostini, Mueller b. Broad class of potential beneficiaries – Is the church only one of a potentially broad class of beneficiaries of the state action, Mueller Walz v. Tax Com’n – State had property tax with exemption to any property used for religious, educational, or charitable purpose. The court upheld this. First this was s secular purpose, it aided any non-profit group, the effect was not to promote but to passively help, and there is no government entanglement. Texas Monthly, Inc. v. Bullock – State exempted religious books from sales tax. The law was struck down because it wasn’t secular, it picked out just religious books. c. No direct aid to religion – Is the state money going to individuals (e.g., parents, Mueller; deaf children, Zobrest; children at risk, Agostini), rather that directly to the religious organization d. Does the state action relieve the religious organization of costs they otherwise would have to bear – or is it merely “supplemental to the core curriculum,” Agostini e. Passive v. Active – Passive assistance, such as tax exemptions or deductions, is more likely to be upheld than direct grants to religious organization f. If benefit goes directly to religious organization, is it restricted to use in non-religious program, Bowen v. Kendrick g. Examples: Mueller v. Allen – State gave parents with children in schools tax deduction for the money the spent of education. The court upheld this law. First, the state gave money to all children, in public or private. This advanced education and sets a benchmark for private school. Second, the money does not benefit the religion in anyway, it goes to the parents. Third, there is no government entanglement. Note: This is the difference between indirect and direct. Zorbrest v. Catalina Foothills School Dist. – The P wanted a sign-language interpreter that he is allowed to have under the IDEA, to translate for him at his private religious school. The court allowed this. First, the IDEA is definitely non-secular. Second, the benefit is to the student, not the school. Third, there is no chance that the students will think it’s the government relying the message. Agostini v. Felton – Federal money was used to help children who were flunking and teach them. This money was used for private or public schools. The court upheld the law. The purpose is to keep children from flunking. The effect goes to the student, not the school. 3. Specific Situations a. Public Schools (1) Not acceptable – encouragement of religion on school premises during school hours or school function. Examples: (a) Coerced or encourage prayer or religious instruction in school or at graduation; Wallace v. Jaffree – Original state law allowed a 1 minute quiet time in schools for meditation. The law was amended to say “for meditation or voluntary prayer”. The court held this as a violation of the establishment clause. This violated the first part it does not have a secular purpose. Note: This is a good example of making the entire statute bad because one part is pad. Lee v. Weisman – A high school had a priest as a speaker. The court held this to be a violation since it coerced the students into hearing the priest speak. Coercion is what the court was concerned with, any coerced speech was a violation. Here it is coerced because students would have to hear it if they wanted to be at the ceremony and peer pressure would ensure them there. (b) Curriculum structured to endorse or follow religious teachings Epperson v. Arkansas – Arkansas law forbid the teaching of evolution. The law was struck down because the sole purpose of the law was to not teach a segment that is in conflict with a religion. Edwards v. Aguillard – Law said that if you teach evolution, you must teach creationism. This law was struck down because there was no clear secular purpose. (c) Religious symbols (e.g., 10 commandments, or a cross) in schools (d) “Release” time from school for privately employed religious teachers to teach religion on schools premises during school hours violates 1st A, McCollum v. Board of Educ. – school was holding private voluntary religious classes for children. The court struck down this law as a violation of the Lemon Test. Note: release time for children to leave school for religious training is acceptable Zorach v. Clauson Zorach v. Clausen – court upheld law that allowed children to leave school for religious programs and religious classes held at the church. The reason was because this was not to endorse religion, just accommodate. (2) Acceptable – “Neutral” activities on, or uses of, school premises. (a) Examples i. Moment of silence (because silence is neutral, and not necessarily an encouragement of prayer), so long as purpose is not to encourage religion or prayer, Walace v. Jaffree ii. School property that is held out as public forum during non-school hours may be used by religious organizations, along with other, non- religious organizations, Lamb Chapel iii. School that nuetrally funds all non-religious student organizations may also fund religious student organizations Rosenberger v. University of Virginia – University was giving money to all student groups except a religious for printing costs. They used the Establishment clause as a defense to not promote religious activity. The court held that this was a violation of free speech (viewpoint discrimination), not justified by the defense. The program was nuetral enough ans by not giving money they were violating there own nuetrality. b. Actual or apparent endorsement – Whether there is an “endorsement” of religion by the state; depends upon “what viewers may fairly understand” to be the purpose of the state action, taking into account what is communicated, to whom, and in what context. The more powerful the message of endorsement or the benefit, and the more subject to influence is the audience, the less likely is the action to be upheld. (1) Religious symbols – depends on facts and circumstances (a) location (crèche in nicest part of city hall no good, Allegheny, but crèche as part of annual Christmas celebration downtown, accompanied by Santa and other secular symbols of Christmas, is ok, Lynch Allegheny County v. ACLU – Courthouse had holiday display of a Christmas tree, a major, and menorah. The court held that the use of the tree and menorah was fine. First, these are just meaningless symbols to celebrate the winter holidays. There are no less religious alternatives. Also, Congress has a prayer and the pledge refers to God. Note: This is like added the prayer to meditation, but there is was not upheld. (b) size (c) how religious is it (tree or Santa or menorah is less overtly religious than a crèche) (d) does it convey endorsement by government, as opposed to endorsement by private persons Capital Square review v. Pinnette – KKK wanted to place a cross in the town center designed for public speech. The court held they were allowed since to RPP would understand its not the government endorsing and the area is open to all people for speech. Note: The RPP out of towner, what would they think? (2) Ceremonial deism – “In God we trust” on money, “one nation under God” in pledge, and legislative prayer are mere “ceremonial deism” and do not convey endorsement of religion, Marsh (3) Holiday – Holidays such as Christmas, Sundays off, Easter, etc, d not violate 1st A. (4) Exemption of religious observer from “neutral” laws of general applicability that conflicts with religious doctrine is usually not enough to constitute Establishment (but Stevens concurrence in Boarne v. Flores) (a) Exemption from mandatory school attendance for Amish is okay, Yoder (b) Exemption form title vii requirement barring religious discrimination for religious organizations is okay Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos – Congress made an exemption to Title VII that allowed Churches to discriminate higher on the basis of religion for any position. The court upheld this since it is just neutral, this applies to all religions. (c) Exemption from draft for conscientious objectors is okay, Seeger (d) Exemptions from usual terms for unemployment insurance for religious observers who will not work on Saturday is okay Hobbie v. Unemployment Appeals Com’n – P did not qualify for unemployment benefits because she intentionally broke a workplace rule and got fired. She would not work on Saturdays because of religion. The court said that under strict scrutiny, the statute fails. (e) Requiring some to make substantial changes to adapt to religious preferences of others in not acceptable, Thorton (f) Although injesting drugs as part of the religion can be considered criminal Employment Division v. Smith – 2 people were fired from a drug rehab center for ingesting peyote. The did it for religious reasons. The court said that they can be fired. This is like time/place/manner, you can believe what ever you want but can’t practice whatever you want. The court said as long as there is a legitimate non-secular purpose, it will withstand. Note: The P’s argument was that wine in churches was okay but could violate a no alcohol in public rule. (5) State cannot prefer one religion over another, Larson v. Valente III. Free Exercise Clause A. Congresses power to enforce the bill of rights – 14th A  says that congress can make laws to enforce the bill of rights 1. Limitation – Congress may not make a law that modifies Judicial power under section 5 Boerne v. Flores – A church wanted to expand its lot but couldn’t do so under the zoning laws. Congress enacted the Religious Freedom Restoration Act under section 5 of the 14th A. The law said that any law that substantially burdens a religious must be decided with Strict Scrutiny. The court rejected this law in that congress does not have the power to interpret the law, only the Courts do. Note: This is the full circle back to Maybury v. Madison.