syllabus

Required Books:

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Stone, Seidman, et al., CONSTITUTIONAL LAW, Sixth ed. (2009) Hamilton, GOD VS. THE GAVEL: RELIGION AND THE RULE OF LAW Pocket Constitution to bring to class-- MANDATORY

Additional resources www.justia.com or www.findlaw.com (Constitution text; Supreme Court opinions; statutes) Exam: Short answers there IS a right answer {3-5pts} Long answer Issue Rule Analysis Conclusion o o o Dont change the facts, and analyze facts in light of rule Multiple approaches to one issue DONT ERASE Identify as many issues as possible

Date

Assignment

Aug. 30 Read Bill of Rights, 14th, 15th, 16th Ams; Lecture: Levels of Scrutiny Sept. 1 9/6 9/8 9/13 9/15 9/20 9/22 9/27 Oct. 4 10/6 10/11 10/13 10/18 10/25 10/27 Nov. 1 Reynolds v. U.S., 98 U.S. 145 (1879); Wisconsin v. Yoder, 406 U.S. 205 (1972) (entire opinions) Free Exercise of Religion, text pp. 1507-22 Class Cancelled [makeup: Review Session at end of course] GOD VS. THE GAVEL, pp. 238-311 Equality, Slavery, 441-461 Brown, 462-488 Equal Protection, Rational Basis Review, 489-511 Equal Protection, Heightened Scrutiny and Race, 512-19, 531-33 McCleskey v. Kemp, Affirmative Action, 546-50, 555-66, 571-83, 587-90 Parents Involved v. Seattle Sch. Dist., 600-616 Equal Protection, Heightened Scrutiny and Gender, 619-23, 627-32 636-44, 648-52, 656-59 Equal Protection, Sexual Orientation, 664-675; Alienage, 686-690 Equal Protection, Disabled, 704-709 Incorporation, 729-735, McDonald v. City of Chicago, 561 U.S. ___ (2010) 11/3 11/8 11/10 11/15 11/17 Freedom of Expression, Advocacy of Illegal Action, 1032-66, 1071-76 Speech that Provokes a Hostile Audience Reaction, 1076-1089 Dangerous Ideas and Information, 1089-1102 Overbreadth, Vagueness, Prior Restraint, 1109-12, 1118-1128 Low value speech [New York Times v. Sullivan], 1128-1149

11/22 11/29 12/1

1172-74, 1181-88, 1192-1214, 1208 Substantive Due Process, Economic, 735-44, 749-58 Substantive Due Process, Privacy, Abortion, 831-39, 843-50, 855-98

TBD:

2-hour Review Session

Free Exercise Clause

General Overview Hierarchy: o o o o Belief = absolutely protected

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Speech = highly protected (Religious Speech is regulated by Free Speech) Conduct = not protected *Court is upholding ability of congress to write laws based on what can endanger people

Takeaway: o o o If law is regulating belief unconstitutional If law is regulating speech 50 different rukles If law is regulating conduct most likely constitutional

I. FREE EXERCISE CLAUSE QUESTIONS Multiple lines of Cases : Cubby Hole Jurisprudence: o o STEPS: What most plaintiff show? o Trigger for 1 Amdt Claim: Usually shield not sword (response to criminal prosecution,etc.) o o A. Burdening Religious Activity Regulation of Conduct: Reynolds rule reiterated n Smith o if law applies to everyone engaging in same conduct is illegal (neutral & generally applicable) > no violation Even If only one group is engaging this that alone does not make law unconstitutional (disproportional impact does not matter if gen. applicable) Reynold o o Court does not stack up faiths, does not use Religion to battle Religion. Congress can make laws regulating criminal activity > Congress likewise can create exceptions for religious belief. Sincerity of belief: Would court still analyze case in the same way if he disclaimed any religious belief? NO, he is not asserting a right that is recognized by Free Exercise Clause o *Plaintiff cannot lie about the substance of their beliefs. Complainant must show substantial burden on religious conduct to bring claim Court may not challenge the truth of belief, but may question the sincerity of belief
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Reynolds (criminal activity & compelling state interest) Sherbert (non criminal activity & no compelling state interest)

What is conduct? What is law regulating it? -- is it neutral and generally applicable?

Types of Challenges

o o

As Applied Facial Congress has no authority

Development: Yoder o When Belief and way of life are inspeparable, & religions supports the achievement of the state interest strict scrutiny and least restrictive means. Yoder o o Free Exercisse + Parental Rights Childs Interest is diminished, Parents win Hybrid Right Impact (of religious non-compliance) matters yoder (good citizens vs. Reynolds (polyg.)

What are options for Religious Group: o o o Complete isolation Accommodation of Religious Group to Culture Going to State legislature and Ask for Exemption Yoder states that if you have a central religious tenet to be isolated from broader world the 1 Amendment will protect you o Reynolds says that you cant be special, laws apply to everyone at least to the point that it is intolerable and you need
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**Difficult Free Exercise Issue what do we do with groups that want to be separate from society? o

Conduct is Deciding Factor: U.S. v. Reynolds (1878) [ Bigamy law challenge; Religious belief is no defense for criminal conduct in the case of neutral and generally applicable law] Intermediate Scrutiny for content neutral law that effects religiously motivated counduct Facts: Reynolds has married two wives. Issue: challenging congressional authority of law outlawing bigamy. Critical Holding: Court must interpret Free Exercise Clause for First Time o NEUTRAL LAW OF GENERAL APPLICABILITY :Congress has power to pass this law within health/safety purview = legitimate purpose EXCEPTION: Reynolds mounts AS APPLIED Challenge: Religious motivation does not change the criminal question: did the person knowingly participate in the illegal activity. o Congress could have created exception for religious practice congress did not do this.

Conduct is NOT deciding factor, impact is (esp. involving kids Wisconsin v. Yoder (1972) [Amish schools -> decisive factor; state must allow least restsrictive means ANOMALY] STRICT SCRUTINY for when govt regulates religiously motivated conduct Facts: Wis. Law mandating education through age of 16 conflicts with Amish tradition Balancing Test What factors do you put on the scale? o Religion: Survival of Amish Traditions & Religion fundamentally: Amish way of life is not separable from this conduct. Parents have right to raise children thusly

State Interest: education creates good/self-reliant citizens

Court Decision: Rejects these arguments for THIS religious group (as applied o o Least Retritive means: State must show that it is really serious about higher education: Basis: Unchallenged history & expert opinion 300 years of consistent practice strong evidence of sustained faith pervading residents entire mode of life

B. The Free Exercise Clause: Required Accomodations [Sherbert & Progeny Sherbert Test: Is strict application of law the only way the state may achieve goal? If yes Const. Braunfiedl If burden is across the board (i.e. criminal penalty) -= Reynolds vs. case-by case determinations (sherbert) -> case by case can accommodate rel. difference. Sherbert If a person is not breaking the law and a state recognizes secular exception> state must recognize religious exemptions o o o If there is exemptions law is not generally applicable & neutral State shows that there are more that exemptions do not undermine interest Solution for state: If state removed ALL exceptions state could impose that rule b/c secular reasons are going to be treated the same as religious reasons. o *Keypoint any exception leads to religious exception

Problems of Mandatory Accomodation o o o Unemployment Cases Taxation rejected reasonable accommodation requirement Restircted Environments; Military (Goldman v. Weinberger) rejected free exercise b/c officer werearing yarmulke. Majority emphasized importance of uniformity and respect & dissent said that limitations based on a reasoned basis of interference with appearance could survive Prisons: free exercise restrictions are judged on a reasonableness basis reasonable to restrict some respondents from services when necessary

Braunfield v. Brown (1961) [Orthodox Jews vs. Compulsory Sunday closure; only way to achieve goal] Facts: Pennsylvania required stores to be closed on Sunday. Orthodox Jews protested Neutral law (not targeted at Jews) + Indirect Burden + no way for state to effect pupose => constitutional

Sherbert v. Verner (1963) (seventh day Adventist and Saturday Sabbath; ) Facts: Seventh day Adventist could not find work that respected Saturday Sabbath, needed unemployment. State did not recognize as good cause religious reason as valid to refuse work. Holding: Brennan Violates free expression; other secular exemptions open path for religious exemp. o o In Braunfield, there was no other way the government could serve its goals . Sherbert no government interest is harmed by allowing her benefits; exemptions do not undermine point of unemployment comp. legislation

C. New Regime: Reynolds > Sherbert: Employment Division v. Smith Employment Div v. Smith courts give broad outline for FEC cases Past Cases: o Yoder = hybrid right = FEC + other constitutional right (aka parental rights) compels accommodation. (this characterization is unworkable moving forward) o Sherbert = only dealt with legal privilege, not illegal conduct

RULE: What must be present to invoke strict scrutiny? o Court will not apply strict scrutiny to a law that is neutral and generally applicable (a la Sherbert) that regulates conduct Rational Basis/ Low Level Scrutiny Is government treating everyone engaging in exact same criminal conduct the same? YES NO STRICT SCRUTINY o o If law is not neutral or not generally applicable strict scrutiny & Least Restrictive means Focus on conduct o iflegislature wiling to burden everyone the same way law stands if legislature makes exception for secular reasons strict scrutiny States have exceptions this group should lobby for Political Solution Religious liberty is not just obligation of judiciary but also of legislative branch.

Takeaway: Legislative Role

Malleability of Generally Applicable Law: - where the fight is! o o can you make argument of distinctive treatment or similar treatment) Hypo: UVB; South American Church with Hallucinatory Tea, present in U.S. State: Generally applicable law illegal, UVB loses Church: UDV Argument Rule is not generally applicable, there are exception for other Sched. 1 drugs. We should get one too.

Employment Division v. Smith [peyote smokers. Reinterprets FEC jurisprudence; regulation of conduct is legit] Facts: Member of native American church smokes peyote, get fired for failing drug test. State refuses unemployment benefits.

Issue: Does law as applied, and lack of reasonable accommodation, violate Free Exercise Clause? Arguments for Smith: Yoder & Sherbert o o o Yoder: Native Americans have a long church tradition (Amish/Yoder); Peyote is Central Belief Distinguish Reynolds: No harm to society by Native American peyote use. Sherbert: Other states have exceptions without any resulting harm

D. Reaction to Smith Religious Freedom Restoration Act in 1993 RFRA: mandated STRICT SCRUTINY for every law that may impact Congress Double Universe o Constitutional Free Exercise Smith o Sincerity of Religious belief Rationality Review = if neutral and generally applicable Strict Scrutiny = if not neutral OR generally applicable Yoder = strict scrutiny outlier for hybrid rights

Statutory Free Exercise Sherbert & Yoder Strict Scrutiny = applies to ALL laws whether neutral and generally applicable or not. Applies Sherbert & Yoder RFRA unconstitutional; but now applies to ONLY Federal Law RLUPA applies strict scrutiny to land use and prison Sincerity of religious belief is still challengeable

Summary: Free Exercise Clause Scale: Patchwork of Free Exercise Clause Protections Smith: Scalia Majority Unemployment Cases (still applied) RFRA Proponents

Braunfield/Reynolds/Smith: Rationality Review - neutral & generally applicable laws (not absolute rule, but rationality rule b/c if not rational may be a pretext)

Sherbert: Strict Scrutiny when there is 1) Differential treatment b/t religious exceptions vs. secular exceptions Strict Scrutiny

Wisconsin v. Yoder: Strict Scrutiny for neutral, generally applicable laws compelling interest & least restrictive means test (very fact based, court driven inquiry)

Plaintiff Must allege: Plaintiff Must allege: 1) Not a rational law or Sherbert 1 not a generally applicable law there are exceptions, I am entitled to on 2) how is law not generally applicable

- RFRA: applies strict scrutiny to every law in U.S. Plaintiff must allege 1) Significant burden 2) Least Restrictive means get creative!! compromise

problem for court

o RFRA Development RFRA 1997: forces strict scrutiny to any law when a person invokes impact on their faith Boerne v. Flowers (1997) limits RFRA only to federal government on constitutional balance of powers grounds RLUIPA applies RFRA to state hospitals and state prisonsany state land usefor institutionalized persons now available State RFRAs/RLUIPA also applies to common law Trigger/Steps: RFRA or RLUPA o 1) Complainant must show substantial burden on religious conduct Burden shifts to pubic actor o 2) Public actor must show compelling interest & least restrictive means (affordable) Least Restrictive Meansmost creative part of argument must think of alternative solution Least Restrictive Means: What can state fight back on? o o Economics/aesthetics all can be argumetns (ex. 10 floor church in West Village) Safety hair restrictions in prison accomodation is too expensive.

Example: Sex-abuse Victim sues Church for Negligence relying on Tort law against negligence for employers. (common law) First Question: Is this a substantial burden on their religious conduct ? o effect on finances does not create burden (Braunfield making belief more expensive indirectly is not substantial burden) Smith: neutral and generally applicable rule law applies o Law still stands though negligence

State Law: o o o o RLUPA does not apply (tort law is not land use) RFRA does not apply (federal law only) State RFRA possible triggers strict scrutiny State Compelling Interest protecting children from abuse is a compelling interest (every state recognizes this) o Least Restrictive Means how could you serve this compelling interest by a different means Less restrictive to go after perpetrator vs. monetarily punish church

Church argument: unless you can criminally indict leadership of organization criminal system is least restrictive

Free Ex. II Employment Div. v. Smith12/18/2011 12:52:00 PM

Employment Division v. Smith Intro Yoder where did it come from? Court re-assesses its entire Free Exercise Jurispurdence o How does it characterize prior cases? Con Law II Discussion o What does court say courts are good at? What is province of

Equality
13 Amendment:
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Servitude is acceptable as punishment However, not under any other circumstances is this allowed *we dont really know the entire scope of the 13 amendment
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14 Amendment: Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Why is it applied to race? o o Plessy v. Ferguson limits 14 Amendment to Race Lee v. Optical
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TEST: Depending on the type of disparate treatment (race, gender, economics) Court eventually assigns different levels of scrutiny. o Strict Scrutiny = Race Plessy v. Ferguson: 14 Amendment is directly related to slavery, therefore addressing racism is clearly within its scope. o o Intermediate = Gender Rationality = Economic
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I. Privileges & Immunities II. Equal Protection Clause Dred Scott Not our role to bend the constitution you should amend it o o o o Challenge amending constitution is too difficult but, that is the point, stability Court disclaims role of changing Constitution & policy Court will not reflect zeitgeist not our institutional competency Court acknowledges that this is the final word on interpretation, not necessarily the best result o Plessy v. Ferguson (Equal Functioin NOT Equal Resources; Separate but equal is fine when you are receiving same service) o o Facts: Plessy is 7/8ths caucasion, prosecuted for not removing himself from white only car. Statute: LA statute states that white riders must ride with white riders and black with black. *Standard Approach

Plessys Arguments: Challenges Interpretation of genetic division over 5/8ths white white car vs. states one drop rule Black cars are less comfortable/broken down.

o o

Issue: Is such categorization appropriate? And is Plessy receiving equal treatment? Steps for Equal Protection Analysis: What is base line of individuals? Who is similarly situated? E.g. Court must decide to which group (black or white) is similarly situated to? What is equal treatment? Where do you draw line of equality? Function (of train)?

Is he getting equal treatment in each car?

Holding: Because the statute places equal limitations on blacks and whites no violation of equal protection clause. Legally equal Plessy can get on at the same station as everyone else, same mobility of movement. If function of train is transportation equal treatment Social equality does not matter to the court inferiority is perceived
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Court limits 14 Amendment to RACE History of amendment points to correction of slavery racism is the next step from slavery 14 Amendment is CLEARLY Applicable to race
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Harlan Dissent: Constitution is colorblind the fact that law touches race, and labels races differently is unconstitutional

Equal protection jurisprudence Separate is acceptable (separation was endemic in Reconstruction society, and before [property holders vs. landless])

Brown Development Brown I: Brown V. Board of Education (Any separation of races in education unequal) o Historical Background: A Advocates had been litigating and pushing for expanded application and equality Higher Ed. Cases.

Brown was a waterloo because it effectively rearranged Southern Culture

Facts: Brown wants access to white school vs. black school. Topeka claims that schools are both performing function of education (a la Plessy). Topeka Arguments: consequentialist reasoning: we are equipping them for what they are going to be doing. Integration is distracted/violent. Different starting points minority students arent ready. Sociologically this is all we can do.

Holding: Court pivots 180 degrees from Plessy.; not willing to go to the level of abstraction (function) in Plessy for education. Social Science Research separate education creates badge of inferiority (sanctioned by the court) as being lesser valued. Unconstitutional this gets into their psyches and lowers their horizons. How does court get from badge of inferiority unconstitutional Segregation ALONE creates inequality in education

Contextual Constitutional Interpretation vs. Textual Interpretation Battling statistics vs. what does equal mean?

o o

Remedy: How does court gets to place that collapses schools together

Post Brown How can schools separate now, not based on race? Zoning geography Capability/Accumen Court orders social upheaval Southern states do not move.

Problem: Court has institutional legitimacy crisis courts ruling cannot be enforced.

Brown II: Focus on Remedy o o o Lower courts must exercise Equity Power Issue: Holding: Court orders district courts to tailor orders to each district, which is distinctive. You must fine tune this with All Deliberate Speed. o All Deliberate Speed with much additional time as necessary great deal of leeway Court understands radical nature of decision and backs off a bit Allows time for states to comply prevented plaintiffs from enjoying benefits of win Encouraged white resistance by allowing flexible time line.

Hypo: School districts put disabled kids in different classrooms than other kids o o Is it constitutional to treat children with disabilities differently. How would you figure this out?

Sociological data does this create badge of inferiority that impairs their future or actually assist them.

Badge of inferiority engendered? Full fruition of abilities? Quality of education in mainstream classroom undermined? Gvt. Decision: as much mainstreaming as possible

Steps: Is there sociological data that points to badge of inferiority? What is governing category? Race or Ability? Can govt distinguish between disabled and abilty? NO STRICT SCRUTINY

Differently situated and can therefore be treated differently

Takeaway: o o o Brown is difficult to translate outside of race-based division. Brown does not stand for right to education Brown states that if govt engages in doctrine of separate but equal based on race unconstitutional. o Brown does NOT order complete integration/proportional representation/no scientific desegregation just some attempt to break down segregation in some way.

Bussing becomes method of choice Brown Follow up: o What are options for South to comply with ruling but maintain status quo? Student choice self-selection based on violence Govt decision private decision If govt is providing choices that are not really private (b/c govt is not providing security) argument that this still violates Brown o How to affect change? Must provide security Handful of brave minority kids completely shunned different cafeteria Is there state action? Dumb teenagers -> no constitutional issue Teachers engage in differential treatmentargument for discrimination Private actors cannot be held constitutionally responsible

Hamilton Overview Discrimination -> Legal Universes Case Steps: Complainant must show discrimination (burden) and what level of scrutiny burden shift Government must prove it has an interest (burden) and that it satisfies level of interest

Public Discrimination Private De facto Segregation ( Solution: Statutory Private party acts discriminatory subject to federal, state & local laws Solution: Equal protection Clause De jure (from the government) segregation Unconstitutional for government (state or federal) to hire employees based on race Statutes also limit. Race based hiring strict scrutiny & EPC

Boundary Line = Shelly v. Kraemer (racial limitation in deed) Ex. Deed restricting sale of house to certain houses private contract b/t private parties Question: can courts approve and enforce a contract that requires discrimination? NO.

* Free Exercise Clause does not map as cleanly

Rational Basis Methodology Equal protection claims involve a challeng to laws that allocate benefits or impose buadens on a defined class of individuals o Real question: whether under particular circumstances, a challenged classification is permissible o 1 how has the govt defined the group being benefited or burdened? (means 2-what is the goal the government is pursuing (ends 3- is there sufficient connection between the means and the ends? (fit/nexus)

Govt may use constitutionally suspect classifications only when their use is tightly tied to achieveing a really significant government objective

Rational Basis Case Development: o o What do you do when individuals feel discrimination based on economic choices? How does Court deal? Court does not limit EPC to race b/c 1) language of EPC and 2) it would limit its power. Court decides that it will be arbiter of equality -> open up courts power

NYC Transit v. Beazer 1979 (Drug users rationality review, no violation of EPC) o o Facts: MTA issues blanket policy against hiring individuals on methadone. Procedure: District court found this blanket policy too broad, issued injunction which allowed agency to make some classification. Rule is broader than necessary to exclude methadone users who are not actually qualified to work at MTA.

Argument: Creates a classification that biases against recovering narcotics users. Classification is Overinclusive -- this classification is not sufficiently tailored to achieve its goals. Government Classification: Narcotics Users puts methadone users in this category Non users

Desired Classification Nonemployable, Unsafe Users Employable, Safe workers (methadone users, some, should be allowed in here)

EPC Test: Is discrimination/distinction constitutional or non constitutional? Constitutional is it rational? Nonconstitutinal strict scrutiny

Holding: Reversed, policy is upheld; I Court sets level of review: Discrimination based on drug use Rationality Review (no constitutional concern raised) Policy serves general objectives Made by branch/agency with power to make such choices does not circumscribe a class of people nor does it create or reflect any special likelihood of bias. while the policy is not well-tailored, the federal courts are not authorized to go in and review it Institutional Incapacity: Court is not an expert in dealing with drug addiction or organizing MTA. *Court is backing off being arbiter of social policy.

Dissent: Majority and Dissent are fighting over percentages usually occurs in legislature Dissent notes that Methadone users are no more likely to be bad than remainder of population Agency did not engage in study and this requirement hits blacks and poor the hardest

Notes: Relevant Differences

Levelling up vs. Levelling down usually equal protectin cases involve some benefit that a plaintiff wants extended to them.

Relevant Difference -* principlal of equal treatment requires that individuals be treated similarly to the extend that they are the same and differently to the extentd they are different difference is only relevant if it is empirically related to the purpose of the rule

Note: Permissible Legislative Purposes Expressions of moral dispproval Ex. U.S.D.A v. Moreno (food stamp case; legislation excluded from participation any person in a household that was not related to another member of the household) (Violation of EPC;) Unrelated person provisioncreated an irrational classification that was not related to stated purpose of act to raise food nutrition levels of lowincome persons Anti hippie bare congressional desire to harm a politically unpopular group -- not a legitmate purpose Statute struck down

Ex. City of Cleburne v. Cleburne Living Center, (1985) Texas zoning ordinance allowed group care homes to be built but specifically excepted services for drug addicts, alcoholics or mentally ill. (Violation of EPC) Citys reasons could not be squared with differentiation fear of school kids harassing mentally retarded belied by fact that mentally retarded kids attend school &fear of flooding belied by willingness to allow old age facility Courts Analysis: Rationality Basis Citys claims are not rational b/c citys claims are showed to be false or *Very rare for rationality review to produce violation What level of scrutiny does disability induce? o o Court rejects Strict Scrutiny Court engages in a searching Rationality/Rationality +

Outcomes:

Why? Court may want some discriminationit is appropriate. Are uses similarly situated YES (Cleburne cannot make this distinction)

Problem: selection of the group is city decided on neutral principles based on groups? Hypo: crime-study showing increased crime rates around drug rehabilitation passes rationality review

Context: Land use cases court is very deferential in zoning decisions Local authorities better at reaching these conclusions Option: Cleburne could rezone and ban ALL group homes based on land use.

Ex. Romer v. Evans (1996) CO. passes constitutional amendment forbidding local ordinances from enacting anti-discrimination measures protecting homo/les/bisexual orientation and behavior. (Violation of EPC) Context: SCOTUS addresses what level of scrutiny to apply to sexual orientation based discrimination Court refuses to answer. Rationality Review if statute doesnt pass rationality review -> no need for new standard 1) imposes broad and undifferentiated disability on a group 2) No offered explanation for the law other than discrimination (no claim of danger, etc.) invidious discrimination is per se unconstitutional 2) sheer breadth is unrelated to the reasons offered for amendment inexplicable except by animus for targeted no rational relationship to state interests 4) * Court can not find rational reason either

Outcome No government can forbid civil rights based on sexual orientation o States action was only invidious discrimination; no plausible government interest. No obligation to enact civil rights principles.

Dissent we express moral disapproval all the time : anti-sodomy laws. Law targets conduct we allow states to limit conduct Does not ban gay individuals , but bad behavior. If government cant outlaw bad behavior it cant do anything

Lawrence v. Texas Struck down law preventing homo but not hetero sodomy on due process grounds Oconnor found that distinction between the two violated EPC b/c it reflected

bare desire to harm one group

Note: Actual Purpose Review o Any purpose a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. o o Inconsistency judicial response Can courts put best face on policy to uphold it? Minnesota v. Clover Leaf Creamery (outlawing plastic milk containers in favor of paper) TC overruled law because it was purposed on supporting local dairy and pulpwood industries MN Supreme court noted environmental purposes no empirical connection between the two o Difficulat to discern actual purpose and assumes unitary purpose of legislature

Note: The Means-Ends Nexus o To survive EPC review, classification must bear some connection to a permissible government end. o Overinclusion Permissibility of legalized generalization turns on Cost of generalization as compared to cost of a more individualized judgment. o Underinclusion: Court has said that EPC allows legislature to proceed step by step, or deal with one problem at a time not so transparent though.. Possible that state could exclude some bad actors because cost of exclusion is less (methadone vs. epiliepsy) o Relationship between Fit and Courts view of statute Usually, ep. In straightforward economic regulation validation of leg. Schem

Hypo: Can city ban Semis on city streets? Rationality Review if city is better off with smaller trucks can be passed But COSTS This is terribly expensive. NYC does not want this expense.

Railway Express Agency v. NY (1949) NY outlawed advertising on trucks, unless the advertising was for ones own business. Legitimate difference between people acting in their own self-interest and those doing same action for a price (hired) Court can discriminated *Court can kill an industry.

Court legitimizes distinction between people Court was applying rationality review without clearly using lingo. Easier than methadone case only dealing with distinctions between conduct. If there is a safety problem with moving billboards and not with trucks in business operations Court will support them, but same safety concerns with distsraction

Takeaway Close case for rationality Safety harder argument b/c distraction is equal Congestion better argument b/c single use vs. double use RATIONAL BASIS FOR DISTRACTION No close level scrutiny

Williamson v. Lee Optical how does court handle distinction that is really about a difference? [Economic discrimination; likely loser claim, but not an unrecognized claim] Facts: Opticians vs. Optometrists/Opthamologists. Opticians were more successful, Opticians lost out after law. Statute made it unlawful for anyone that was not a licensed optometris or opthamologist to fit lenses to a face or to duplicate or replace lenses except on written prescription (rate-seeking) Argument: It is unconstitutional (read: Irrational) that state is doing thisthere is no evidence that Opticians were fitting differently than other groups Outcome: Ct. upholds b/c EPC only prevents invidious discrimination Court gives latitude for Legislatures to take incremental approach (cannot judge legislation piece meal with no knowledge of circumstances * Court will not second guess economic decisions. Court will not second guess health-related economic decisions of state. *Health and welfare/safetytraditionally left to states.

Jurisdiction: Court still takes case (does not bar economic statutes from constitutional review) Economic statue may still be reviewed under rationality court holds open door to irrational statute

Legislature is wrong on FACTS ->any review?

Equal Protection Methodology: Heightened Scrutiny and the Problem of Race Level of Scrutiny o Court is developing level of Scrutiny: Strauder Davis, etc.

o Strauder v. West Virginia (1880) [black man convicted by all white jury under WV statute limiting jury service to whites unconstitutional b/c invidious racial discrimination; other discrimination is okay] o Facts: black man convicted by all white jury in WV, which had provision limiting jury service to white males over 21 years of age o o Holding: 14 Amendment bans this type of action Strauder argument: Should be able to have jury of peers under 6 Amendment he is entitled to some AAs on jury. o Reason: 14 Amendment was created primarily to assure the colored race all of the civil rights under the law that are enjoyed by white persons & to protect blacks from state action that would seek to deny such equal protection of the laws Juror law is a badge of inferiority How can white man be deserving of a jury of his peers when black man cannot be *Court states that some exclusions are legitimate (age discrimination, gender discrimination, education requirement) Education requirement can be excused based on Yoder (need education for democracy) eventually used to limit AA jury service Discrimination is alright but not discriminations based on race (invidious arbitrary discrimination) Court does not mandate integration allows for discrimination that will have basically the same discriminatory impact Korematsu v. United States 1944 [Japanese relocation camps; discrimination on race okay based on pressing public necessity?} o Facts: Korematsu (of unquestioned loyalty) was convicted of remaining in his home contrary to an exclusion order *Germans were not rounded up. Germany did not direct attack on us as Japan did; no kamikaze practice in Germany; harder to identify. o o Holding Reasoning: Jurisdiction: This is not race but nationality does 14 EPC apply?
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Japanese lots of fear among populate

Court expands EPC to apply to nationality/ancestry previously court had been taking EPC economic cases, ancestry was actually closer to 14 /Race not an issue
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All legal restrictions curtailing civil rights of single racial group are immediately suspect *pressing public necessity may justify action racial antagonism never can

Justification *Wartime justifies suppression of rights (short term, with definite end) *Court will defer to military Inability to distinguish loyal from disloyal excuses imposition of wholesale containment

o o

Lasting Impact: Still valid Gitmo Dissent: Murphy Limits to military discretion, especially where martial law has not been declared Reasons must be tested by judicial process only basis is the assumption that all Japanese are more likely to commit espionage Reasons arise from racial and economic prejudice: -- every reason has been discredited by studies made by experts*

Dissent: Jackson Constitutional Rationalization of this military order blow to liberty. Constitution limits military authority, civil court cannot sustain military order when it conflicts with Constitution.

Loving v. Virginia (1967) [case is about race;] o Facts: VA statute that prevented intermarriage of white person with any other race, purposed on preserving the integrity of the races. Lovings were convicted of crime o o Holding; Struck down Reason VA argument: statute applies equally and punishes each party equally; preserving purity of institution of marriage EPC requires consideration of whether a statute constitutes arbitrary and invidious discrimination based on race. Statute rests on distinctions based on race EPC requires rigid scrutiny for case and therefore they must be shown as necessary to the accomplishment of some permissible state objective, independent of racial discrimination.

Statute seeks only to preserve the integrity of white persons, as measures to preserve White Supremacy not a permissible purpose

Why did this take so long? Baseline comparison of EPC what are categories? Whites and Blacks are equally burdened (Separate, but Equal)

Brown v. Board only outlawed Separate, but Equal in education Separate but Equal survives until Loving. Loss of legitimacy after Civil Rights Act, court is less likely to lose authority March of zeitgeist: *Court is part of the culture and is steeped in the culture Loving does not establish right to get married to whomever you choose racebased restriction here has not run out of excuses. By 1967 court will not buy excuse.

Hamilton Hypo: Laws stating the Gay Couples cannot get married - -constitutional? o *Depends on level of scrutiny Only permissible race based distinction race, when not used in quota, is acceptable in college admissions

Facially Non-racial Classifications: When does heightened scrutiny apply? Washington v. Davis (1976) [DC police force hiring; Disproportionate impact alone is okay; Purpose is de minimis requirement] o Facts: Applicants for police force: higher number of blacks than whites failed test. Test had not been empirically shown to reliably measure subsequent job performance Reasoning o Facially neutral statute: Disparate Impact + discriminatory purpose unconstitutional o De jure segregation caused by government De facto government caused by private actors this is private

Neutral on its face + rationally related to a purpose the government is constitutionally empowered to pursue constitutional Disparate impact alone constitutional Invidious discriminatory purpose: Motive (irrelevant/subjective) vs. Purpose Motive locked in the heart/mind of legislature (we will never know this) Purpose object of law. Hierarchy to determine purpose>> Text of law best indicator of purpose of law If, and only if, text is ambiguous legislative history o o Conference Report of Both House (definitive leg. history) Look at Conference Report of Both House and Senate

o o

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Committee Report Statements of Sponsors

Least reliable legislative history: Post-enacted legislative history/speeches

Purpose may be inferred from totality of facts Discriminatory impact may for all practical purposes demonstrate unconstitutionality because the discrimination is difficult to explain on non-racial grounds

Court finds this is much more like de facto segregation; disparate impact is not enough

What could have shown discriminatory purpose? o Different test for different races (Test A vs. Test B); different scoring methods; race indicators; grading done with knowledge of race

Hypo: Race-aware grading, but more blacks get through, despite harsher grading. o o o Whites could bring EPC claim. Minorities do better on test * Could you still have constitutional violation that would satisfy Washington v. Davis? o Yes you treated races differently based on invidious racism But, no damages to obtain from case

What can police department do to remedy problem? Remedial test review based on test results Those that did poorly can be helped not race-based, so okay Affirmative Action- can police add +5 points can government show compelling interest? YES diversity is important for serving different neighborhoods; diverse workforce has more knowledge of those communities; accounting for education/socio-economic deficiencies; must show that those that were promoted were just as good at their job; undercover staff ; remedy to embedded discrimination in society is by giving plus factor

Mcleskey v. Kemp [1987 GA Death Penalty Case, Racial Imbalance does not make constitutional violation] o Issue: AT Penalty Phase (innocence is not an issue solely penalty phase). Whether a complex statistical study that indicates a risk that racial considerations enter into capital sentencing determinations proves that petitioner McCleskey's capital sentence is unconstitutional under the Eighth or Fourteenth Amendment? o Facts: Mcleskey involved in and convicted of armed robbery that resulted in death of police officer. Sentenced to death. Appeals, relying on Baldus Study which purports to show racial disparity in sentencing:

Black defendants more likely to get death penalty White Victims more likely to warrant imposition of death penalty Baldus study accounted for over 200 factors in all likelihood its race that is deciding
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Procedure: rejected in both district court and 11 circuit Holding: Claim must fail system is constitutional Jury pool is constitutionally created sentencing is a unique jury prerogative; system is intended to keep community mores moving Prosecutorial deference abuse of discretion review All study shows is tendency to discriminate, not actual discrimination against defendant - What must EPC Plaintiff show? Existence of purposeful discrimination And that purposeful discrimination impacted plaintiff specifically

McKleskey did not show that decisionmakers acted discriminatorily in regard to him What would you need? jury instructions that allow jury to take into account feeling based on race *jury instrecutions become veryiportant

Admissibility of Studies? Usually studies must show stark statistical patterns to be taken as proof of discrimination. Two exceptions: Jury venire & Title VII violations -- with more limited numbers of variable

Discretion is critical to the implementation of criminal law cannot go back and ask juries why they decided a certain way.

Claim that STATE acted with discrimination in maintaining policy despite racial disparities : Also Fails: Intent vs. Awareness purpose ful discrimination requires not merely volition, or awareness of consequences, but the adoption of a policy because of racial impact, NOT in spite of it.

Takeaway: Court rejects Brown v. Boards use of sociology in decision no guarantee that you could win just based on sociological duty, Reinstates Washington v. Davis must show actual discrimination in case Ex. Million dollars on miniority defendant vs. lblack defendant

Court sends to Legislative Branch that branch s responsibility to repeal death penalty/amendlaws

Blackmun Dissent: This situation is just like jury venire/Title VII in that multiple steps in the process are tainted with racial prejudice You can isolate down to the Prosecutors office, the main instrument of state action and judgment to the decision to seek the death penalty McClesky made out prima facie case 1) showed he was part of group (blacks) singled out for disparate treatment 2) must show a substantial degree of differential treatment that death sentence is likely to result for racial disparities 3) must show that system is susceptible to abuse or not racially neutral

*Docket Conscious Judges takes when it has complete certiorariif you have

AFFIRMATIVE ACTION/BENIGN DISCRIMINATION BACKGROUND o o History of racial discrimination -Bakke case/ UCal - white person can bring claim; discrimination can be evil, but when discrimination /consideration of race is used in a helpful way Intermediate level of scrutiny for postitive discrimination) o STATE: Richmond/ Crosson Case [State benign discrimination subject to strict scrutiny] o o o Richmond VA had an affirmative action program that sought to correct entrenched racism Assumption that HUBs could not enter into business at equal playing field Issues: Is long history of discrimination relevant today? Oconnor majority of Richmond City Council are miniorities Minority Business Enterprises (MBEs) are actually just crony politics W

What Level of Scrutiny? Super Strict Scrutiny Must be a near perfect fit between effect of pass discrimination and effect of what they are doing today as remedy.

Holding: No compelling government interest (claims of historic discrimination are insufficient) must show actual, present discrimination.

Clear delineation of why certain industries were not as intergrated or welcome

* Need to have closer percentages

What reaction/recommendation? Government can support smaller, new family gusinesses Encourage all diversity -- limit number of bids ( you cannot have one for another two years) Socio economic Disadvantage*** Focus socio-economic background Get race out of equation but focus on Socio-economic factors very low level scrutiny on socio/economic disadvantage

FEDERAL: Adarand v. Pena 1995[DOT & HUB classifications -- federal government benign discrimination -> subject to strict scrutiny) o Facts: DOT has HUB program. Aderand presented low bid, and competitor, Gonzales also submitted bid. Gonzales won. Aderand challenged. o o Procedure: Appeals court found no constitutional breach BUT at level of scrutiny Argument Federal Government should be allowed to engage in benign discrimination b/c 14 Amendment was not aimed at them o Holding: EPC Rule for any State Racial Classification: Court mandates that any government classification inflicted by federal government based on race must be reviewed at strict level of scrutiny * Does not matter in history of United States is less culpable than states main evil is race-based decisionmaking. *Socio-economic disadvantage is a valid reason for distinctions. Trust federal government to not engage in such discrimination.
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EDUCATION CONTEXT: Race-based Decision in Schools why okay? o Diversity assist in the formation of students compelling interest in diverse class of educated people o Education is manner in which we prepare people to be adequate contributors to political process Yoder o Purpose* is different Contractor: best job at best price Educations mission is to prepare citizens in diverse culture; diversity is a value in education policy

Grutter v. Bolinger (Michigan Law School Admissions process)/ Gratz v. Bollinger (quota in Michigan admissions o Facts: Law School takes race into account after scores and grades are accounted for. Hard criteria receive consideration first. o Reasoning: Individualized Arbitrary assessment always triggers strict scrutiny; must have procedural safe guard BUT individualized assessment no assignment of number/statistics to boost minority candidates o Bakke stated that hard criteria of automatic point addition is not constitutional Grutter using race as consideration in soft factors are okay Gratz hard quota is NOT constitutional

Takeaway Measures that are appropriate to increase diversity now, may not be appropriate in twenty years as discrimination falls. But Deference in vision/purpose of education

HYPO: Rehnquist prefers tennis players. Scalia likes Opera singers Is this more like education or more like employment? Can solicitors generals office have a diversity requirement (mix of genders/geographical diversity & law schools)? like an extension of education, but also like job Could be either strict scrutiny OR educational deference unclear.

Synthesis of Brown & Affirmative Action: Background: o Post Brown: Courts had to deal with de jure vs. de facto segregation De Jure segregation clearly outlawed by Brown De Facto Segregation Despite private ordering and non-government origin of racial imbalance schools should be able to correct this Parents Involved in Community Schools v. Seattle School Dist. No. 1 (551 U.S. 701 (2007)) o o Decision: Lacks clear guidance Vote allocation: Majority I. III (A) I( 4 votes + concurrence concurring decision is the law Thomas is in decision

KENNEDYs concurrence is THE LAW

Facts: Seattle SD uses racial tiebreaker to decide what kids are placed in oversubscribed highschools. Tiebreaker consists of 41% white to 59% other balance. If not within 10 percent of this goal target, tiebreaker will apply that selects kids who will bring school into balance. no history of segregation/desegregation. (took into account race of student & race balance of school)

Kentucky SD: Forced desegregation. District Court released them after 2000 greatest extent possible. Jeff County adopted in 2001 a voluntary student assignment plan. 34% black, 66% white. Magnet schools must have minimum 15% black and maximum 50% black. Resides Schools are based on location based on cluster, if school has reached extremes of racial guidelines no assignment.

Issue 1: What level of scrutiny Because racial classifications at issue strict scrutiny and school districts must demonstrate that the use of individual racial classifications in the assignment plans here under review is narrowly tailored to achieve a compelling government purpose Prior cases evaluating racial classifications in school context recognize 2 Compelling Interests: Remedying the effects of past intentional discrimination (Freeman v. Pitts) Interest in diversity in higher education upheld in Grutter/gratz

Holding: Neither remedying effects of past intentional discrimination (Seattle never had govt caused segregation; KC SD had achieved unitary status) nor interest in diversity in higher education apply. Diversity Law School could use diversity (b/c individualized, holistic approach where race is factore) but University could not (b/c race was a number factor) These systems look more like University systems. Grutter does not control b/c diversity is more important in higher ed environment. Additional Interests Asserted: Seattle: plan neutralizes concentrated housing patterns which would prevent nonwhite students from having access to best schools KT and Seattle: plans promote racial diversity because of benefits that flow from that

Court plans are not narrowly tailored in that they are directed only at racial balance, an objective the Court has condemned as illegitimate Government cannot base individual decisions on RACE alone. EPC protects persons, not groups

Minimal impact of racial classifications cast doubt on its necessity? p. 603 Justice breyer raises alarm over other education decisions that account for race Reading of Brown: Not the inequality of the facilities, but the fact that the government engaged in separating people on the basis of their race that was unconstitutional

Thomas Concurrence integration, when not remedial is simply racial balancing Social balancing is not a legitimate goal Brown did not order integration, but only end of segregation. *Brown stands for the principle that government cannot use race to assign children to school Same problem, just different angle -- this is invidious discrimination

Social Science about positive impact on black students is sketchy Parallels dissents argument for deference with that of Plessy/Brown segregationists

Kennedy Concurrence* Essentially Making Law Disagrees with pluralitys insistence that NO racial categorization is allowed -- > practical experience post-brown demonstrates how difficult that is Kennedy rejects Majority 4 that there be no consideration of race whatsoever in school choice. Constitution does not mandate that local authorities accept status quo of racial isolation in schools What is permissible: race-conscious actions that do not categorize students solely on race such as strategic site selection; attendance zone zones; allocating resources for special programs; race conscous mechanism; unlikely that hey woud deman strict scrutiny De jure vs. de facto segregation important in how judiciary can respond Does constitution mandate inefficient resut to avoid racial isolation? NO state-mandated labels individual classifications are better

Stevens Dissent: You can take race into consideration this flips Brown on its head. This twists brown previous approval of promotional balancing laws should stand

Breyer Dissent:

Segregation has increased since the end of desegregation efforts Fact based: both Seattle and Louisville had faced lawsuits about intentional discrimination. Seattle settled, Louisville was subject to federal district court decree. Both programs were slowly diminishing the use of race in their consideration categories

Swann - stated well accepted legal principal that school boards may adopt policies to reduce racial segregation
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Understandign of 14 Amendment purpose was to forbid practices that led to or promoted racial exclusion amendment can understand the difference of policies that are designed to keep races apart and those that would bring them together should have different analysis

Compelling Interest Standard (despite argument above)

HYPO: 15% Minority 85% White Random Selection - Appeal for individualized hardship based on assignment

Random Election based on socio-economic balance/cultural/experiential background Balance athletic ability/Artistic ability

EPC & Gender: Intermediate Review

I. Background Constitutional 14 Amendment o
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14 Amdt no specific race language but court applies to Race AND also economic natural that gender comes up

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Gender Cases show development of level of scrutiny case by case Rational? Strict Scrutiny? Intermediate?

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Rejection of Sociology by Craig, Court states that statistics do not matter. Levels of scrutiny Rational any rational basis (arbitrary) Intermediate important or substantial state interest

Early Cases: o Bradwell v. Illinois (1873) upheld Illinois rule denying bar registration to women, based on natural timidity and delicacy of women whose highest and right calling is to be a wife and mother o o Minor v. Happersett, 1875 uphold denial of right to vote, overturned by 19 Amend. Muller v. Oregon 1908 court upheld statute prohibiting employment of women in factories for over 10 hours a day (after it had struck down other labor law provisions for men)
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Reed v. Reed (1971) *testator case; rational basis review; arbitrary decision o o History: 1 court decision to invalidate a state law based on gender Facts: Idaho had law governing appointment of intestate administrators that privileged a male over a female in the event of a conflict between two persons of equal status. Father vs. Mother (separated) of deceased both wanted to be administrator. o Level of Scrutiny: Rational Basis is implied court asks whether a difference of sex bears a rational relationship to a state objective that is sought be advanced by the operation of the statute. o Holding: SCOTUS found that use of gender classification as the means to decide was the the very kind of arbitrary legislative choice denied by the EPC But in some ways, not an irrational law when passed- how culture was set up How can court say this? States articulation of reason of administrative ease did not ring true - states stated reason did not have any relationship to what this law says State failed. Court does not decide level of review because they rule that it is unconstitutional anyway. o Covert Paternalism in this issue: women need assistance more (mother wins).
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Frontiero v. Richardson, 411 U.S. 677 1973 [Military wives & housing allowance; unconstitutional; Strict Scrutiny] o Facts: (What is distinction based on gender?) - Male members of military could automatically claim spouses as dependents and qualify for a larger housing allowance, but female workers could not do so without an actual showing that male spouse was dependent on women for over half his support. o o Level of Scrutiny: Court avoids and then focuses. Holding: EPC forbids, but Divided as to level of review Brennan (writing for 4) argued that Strict scrutiny; gender was inherently suspect. Necessary post Reed, based on history of sex discrimination and romantic paternalism, comparable to pre-Civil war slave codes Sex = immutable characteristic that is determined by birth incompatible with the concept of our legal system that legal burdens should bear some relationship to individual responsibility Brennan & Strict Scrutiny Strict in theory, but often fatal in fact Government must participate in very tight tailoring Administrative convenience is not an excuse but is exactly the arbitrary choice forbidden by EPC & Reed o Consensus: Berger makes argument to avoid strict scrutiny, base decision on Reed ERA was up for vote in Congress majority of states in support, widespread thinking it would pass we should WAIT Mandatory federal jurisdiction they had to take it (no cert selection process) But: ERA fails no more momentum dialogue between amendment and court

Due Process & Conclusive Presumptions o o Political Process has failed Post Reed court began to strike down conclusive presumptions based on gender Stanley v. Illinois ruling unwed fathers automatically unfit violates DPC Cleveland B of Ed v. LaFleur forcing women to take maternity leave well before due date of child; DPC did not permit a conclusive presumption of unfitness to teach Powell said EPC analysis was more fittingno legitimate reason for limitation (only post facto justifications) under Rational Basis Review (counterproductive to claimed purpose of teacher continuity)

EPC: Weinberger v. Wiesenfeld (1975) court struck down provision in SSA which gave lower benefits to widowed father vs a widowed mother -> overinclusive generalization that womens income does not matter

Craig v. Boren 1976 [OK Beer statute, Intermediate Scrutiny: Important objectives; both sides can bring EPC claim (men) ] o Facts: Women can buy beer at age 18, men at age 21. How did this law pass if women are getting treated better, they are not suspect class at issue under Brennan. o Level of Scrutiny: Intermediate, state must show important state interest; standard that gender class. must serve important govt. objectives and must be substantially related to achievement Tailoring: unless there is a decent fit between means chosen (operation of law) and ends (stated interest) not constitutional. Rationality Review (court can come up with its own interest) vs. Intermediate Scrutiny ( whatever state says that its interest is, is what it will be held to: state must defend and explain interest) o LEVEL OF REVIEW basically decides cases

Holding: EPC violation of men Age 18-21: State cannot show Important state interest Reed and progeny: rejected notion that administrative convenience as sufficiently important objective for gender-based classification State objective is enhancement of traffic safety, however statistics do not support states contention that classification closely serves to achieve that objective* compelling interest in kids mortality Background: insurance industry drafted bill and passes this states interest must be Tailoring: Fit b/t means and ends is not narrowly tailored (or even accurate Because boys could drink beer, but not buy it justification is even weaker. Statistical justification is too tenuous to justify differential treatment, and relying on statistics is dubious business court has rejected gender distinctions in cases where the gendered assumption was likely more statistically pronounced

Powell Concurrence: Acknowledges inconsistency surrounding level of review distills it to did legislature select means with a fair and substantial relation to the objective? NO b/c the law is so easily circumvented and is overinclusive

Stevens Concurrence One standard for EPC review but what is it? Safety justification is not sufficient to make an otherwise offensive classification actionable. Even by terms of statuteminimal effect on access to not very intoxicating beverage.

Rehnquist Dissent: Wrong for two reasons: 1) men challenging gender-based classification may invoke a more stringent standard of review and 2) enunciation of this standard that gender class. must serve important govt. objectives and must be substantially related to achievement Argues Rational Basis test No history of past or present discrimination to invoke strict scrutiny Evidence is sufficient to justify law

DPC could be issue - over inclusiveness of all males for 2% wrongdoing

Archaic and Overbroad Generalizations vs. Real Differences United States v. Virginia (1996) *exceedingly persuasive justification INTERMEDIATE SCRUTINY PLUS ; System cannot exclude women based on gender stereotypes) o Facts: VMI desegregation by gender. VMI very loyal, only school in VA offering adversative (read- harassment & abuse) kind of training VWIL solution: found that military training is inappropriate for women; fewer resources ($ and academic), no science degrees; VA would provide equal financial o Procedure: Circuit Remanded to DC to select Remedy for womens entrance into VMI DC recommended a VWIL, to be housed at Mary Baldwin College. o Scrutiny: Raises to exceedingly persuasive, INTERMEDIATE SCRUTINY PLUS (Ginsburg has 5 on court) like strict scrutiny, but they use intermediate scrutiny language What is compelling state interest? Produce citizen-soldiers that are MALE (distinctive from everyone else) Ginsburg coins exceedingly persuasive justification Intermediate or Strict Scrutiny?--> she puts harder gloss on intermediate scrutiny State must show that important govt objectives and that discriminatory means employed are substantially related to achievement of those objectives o Holding: Proposed remedy (separate but unequal) violates EPC.

Standard: those who seek gender-based government action must demonstrate an exceedingly persuasive justification for that action Justification must be genuine, no post hoc or hypothesized No reliance on overbroad generalizations about different talents capacities or preferences of males and females Sex is NOT a proscribed classification some physical differences are enduring Sex classifications may be used To compensate women for particular economic disabilities Promote equal employment opportunity

May not be sued to create or perpetuate the legal, social, or economic inferiority of women.

Application: STATE claim: VMI adds to diversity of public education in VA. CT rejects as not the actual purpose of VMI, only a rationalization State claim: modification would destroy VMI integration of federal military academies prove this is not so States justification fo Over-exclusiveness of women who are fit and capable is not exceedingly persuasive Remedy: having violated EPC, VA proposed a solution (that appeared slightly bad faith) that was separate and different in kind and unequal in tangible and intangible benefits pale shadow of opportunity afforded by VMI, like Sweatt (UT proposed separate law school or blacks)

HYPO: VMI Admissions process How do we get women to come and stay? VMI stated interest is leaders? you can put together a group of candidates who are Leaders Grutter & Gratz higher ed cases They can use Gender as + individual assessment => do the same thing at VMI BUT VMI cannot use this as quota If after 10 years they can show neutral criteria and that no women take up the offer perfectly constitutional. VMI is not willing to relax physical requirements still very hard for women

If the process disfavors women because they are women unconstitutional.

Ex. Private Womens colleges: Not governed by EPC School cannot discriminate at will. Congress can grant statutory exceptions; most gender colleges have gone co-ed.

Rehnquist Concurrence: Reiterates Craig v. Boren test Of gender classifiiations must serve important governmental objectives and must be substantially related to those objectives Majority overshoots with exceedingly persuasive language. Ultimately agrees b/c VWIL is inqdequate b/c so inferior to VMi

Scalia Dissent: Democratic means should not be replaced by know-it-all justices OUTCOME: Briefs must say that state has no Exceedingly persuasive purpose Ginsburg succeeds in raising slightly intermediate scrutiny standard and test for tailoring.

Nguyen v. INS (2001) [INS policy of proof for fatherhood; Intermediate scrutiny legislative deference] o Facts: Nguyen was born of Vietnamese mom and U.S. dad, moved to U.S. when 6yo, convicted of felony when 22. Dad appeals for citizenship. Statute provides that child of U.S. dad can have citizenship if a) establishes blood relationship; b) Dad promises to support kid til 18 and c)attains formal recognition of paternity before 18. o U.S. mother automatc if mom is citizen and lived in U.S. for one year

States Argument: More likely that men would be claiming children -- no statistical study, just anecdotal gender stereotype.

Fathers Argument: There is an available DNA test that can prove this completely neutral means

Holding: Upholds statute Gender distinction here takes into account a biological difference between parents >differential treatment is inherent in sensible statutory scheme Statute also wants a relationship that is beyond the formal, but one that consists of real ties b/t child and citizen parent.

Birth offers basic opportunity for mother-child relationship, and certainty of parentage

*unclear in case of unwed father

Difference b/t men & women in birth process is real & EPC does not forbid Congress to address the problem at hand in a manner specific to each gender.

Paternal parentage based on nothing more than fathers length of time in the country would cause insurmountable trouble for citizenship requirements

Strict Scrutiny vs. Intermediate Scrutiny drives decision of this case Congressional Latitude. Strict: If this was strict scrutiny (aka Race based test) this would be struck down in favor of neutral DNA test. Intermediate: because this is gender we will accept some degree of differentiation b/t women and men Court is not second guessing fact-finding of case (mothers instinct) that is a legislative fact-finding that we will not disturb. Intermediate Scrutiny leaves door open to Congressional Creativity/revision of standard vs. Strict Scrutiny which chokes off legislative options in accord with court decision (ex. No quotas/individual assessment in schools) Not interested in statistical reports any more brown scared them away from this because they

Oconnor/Ginsburg/Souter/Breyer Dissent Sex-based statutes, by making generalizations about behavior deny individuals opportunity. Limiting time for obtaining proof of paternity does not impact the assurance of blood relationship modern DNA is not time sensitive nor a rational means Issue: Given gender-based distinction, is cut-off date highly-tailored to address the goal of ensuring blood relationship? NO Presence of sex-neutral alternatives has historically gone against upholding a gendered law Stereotype can be impiricaly supported,and rational but a stereotype nonetheless.

Evolution: o Courts are signaling to Congress & States as they deal with transition to women being rightsbearing individuals o VMI = issue badge of inferiority attached to women argument was freighted with idea of women being incompetent/not strong enough (stronger in military context)

Nothing else in the world like VMI Gender distinct education is alright

Nguyen v. INS = signals to Congress that they will accept some gender distinction that recognize difference but not those that come with *badge of inferiority

EPC Steps? o Are the two groups similarly situated? (If they are not similarly situated no argument) o o Are they similarly situated and being treated differently? Child is never similarly situated as an adult no restrictions on children. Similarly situated = slippery term (first line of argument), fact-based consideration.

If similarly situtated -> What is the distinction (race, gender, age, disability)? Distinction What is levely of scrutiny? Apply Level of Scrutiny analysis can government satisfy its burden under rational, intermediate or strict scrutiny review. Rational wont really mess with this unless egregious Intermediate is this good enough? Strict govt must get it RIGHT

Can the government use the distinction between these similarly situated entities? Ex Race is not a relevant factor between similarly situated.

Califano v. Goldfarb 1977 (old & Boring, not on exam) o Facts: Social Security pay out. Womens beneficiaries may receive Social Security support only if spouse can prove that he relied on her for one-half of his support. o Holding: Violation of EPC Similarly situtated man & woman woman is deprived of protection for her family which men benefit, and sacrifices a portion of her income to a cause which she will never be able to access Discriminates against category of family where woman is wage earner o Stevens Concurr: Disparate treatment is not the result of conscious economic discrimination against females History of statute reflects general assumption of Congress that women were more like to be dependents Discrimination against males is an accidental byproduct of a way of thinking about females Decision cannot focus solely on difference between widows and widowers

Rule that effects unequal distribution of benefits based on sex is sufficiently questionable due process requires that there be a legitimate basis for the governments action

Rehnquist Dissent This requirement (for men) does not perpetuate or exacerbate economic disadvantage Expanding analysis to deceased spouses, vs. women and men who may receive the benefit flips the analysis Overinclusiveness (is the only argument Goldfarb has) can be justified statistically and is not offensive to the EPC in social welfare situations*

Califano v. Webster 1977 o Facts: Monthly old age benefits were to be calculated based on the average monthly wage of a worker during certain statutorily defined benefit compensation years . Until 1972, the statutory formula permitted women to exclude more lower earning years from this average than men could exclude retired female workers received higher benefits than similarly situtated men. o Holding: court found that effort of congress to cure the long history of discrimination against women could constitute a sufficiently important governmental objective to justify sex-based distinctions Statute was not the result of overbroad generalizations about women Rather, it was targeted directly to compensate women for past economic discrimination OKAY by EPC

Sexuality/Alienage/Disability EPC
Nature of Class at Issue:

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-Acts: Lawrence v. Texas (2003): DPC of 14th Amdt prohibits states from criminalizing private, noncommercial consensual sexual intimacy between two adults of the same sex. Law had criminalized oral and anal sex for same sex couples only Idea: when homo. conduct is made criminal it invites discrimination against homo. persons Desires: suspect class is defined in terms of orientation ordesires rather than in terms of acts -Homo. cannot be a suspect class because the law cannot recognize anyone becauseof awholy mental event. o Sexuality cannot trigger strict scrutiny because it is not identifiable on sight

Romer v. Evans (1996) Preliminary Concerns: o Shouldnt level of scrutiny be different when law is passed by the people vs. by the legislature? Direct referendum higher protection for direct democracy because Minorities direct democracy could be even more harsh on minorities, need to have more scrutiny EPC history crafted to protect minorities Same level of deference democracy is not mob rule Idea that Legislature is supposed to be deliberative body have higher level of scrutiny than legislature o Articles of Confederation produced mob rule constitutional convention Founder were dubious of popular rule EPC is about protecting minorities from mob rule o Individuals have no accountablilty Legislators are accountable to constitutional discourse

Mob Rule theres no discourse here, no public checks and no accountability

Court races over Political Question to Constitutional Issue

Facts: CO Amendment that made illegal any city or local laws that would recognize sexual orientation as a protected class. Statute is self-enacting cuts off any legislative moderation or modification. What is level of scrutiny? o o Court does NOT tell you what level of scrutiny is. Announces that it does not need to announce level of scrutiny: fails Rational Basis

Argument:

State: freedom of association for religious people and landlords who should be free to choose; want to conserve resources to protect other discriminated groups (money is usually a rational justification)

HOlding: o o o State claim- homesexuals are now just equal to other groups- no special rights but: Court finds that law impostes a special disability on those persons alone Law creates homosexuals as separate class and withdraws all protection from then until and when a new amendment is passed o Amdt 2 is far-reaching: Common law forbids discrimination in places of public accommodation (Irish GLB of Boston ) o Forbidden safeguards that others may enjoy *or seek* without restraint.

Colorado statutory scheme typical of emerging tradition of statutory protection -> enumerates who is protected and who must comply (what is place of public accommodation) o Amendment operates on private as well as public entities repeals laws forbidding discrimination in public accommodation.

Scrutiny: Rational Basis o If a law neither burdens a fundamental right nor targets a suspect class uphold it if the classification bears a rational relation to some legitimate end o o 1) Amdt 2 imposes a broad disability on single named group = invalid forma of legislation 2) sheer breadth is so discontinuous with stated reasons: inexplicable by anything but animus o * Rational Basis court can look at language of law to assess purpose/interest of law (as opposed to what the state says as its interest) o o Court is not bound by what state says, but normally does trust state

Outcome: reasons offered for this are a pretext for animus *This is just arbitrary. Court basically says that government is lying about legitimate/plaustible explanations we dont believe your reasons, only animus.

Legitmate Govt Interest? o

How does court prove? Desire to preserve $ for discrimination but leads to more discrimination, that youll be involved in law suits about homosexuality cost money As long as Court does not set EPC level of review for homosexuality lots of law suits.

Court looks at cross-purposescommon way of court finding a smoke screen of reasons Equal protection of laws not served by indiscriminate imposition of inequalities

o o

Law is over-inclusive (defined people by one trait) and then broadly sweeping Laws which target persons thusly raise inference of animosity States can pass amendments with negative rights provisions which would then have to pass EPC

Negative Rights Amendment: o

Ex. Children cannot marry in Texas. EPC analysis explain why children are different than adults not similarly situated.

Immutable Characteristic court has not used frequently/consistent. Dissent (Scalia) o o Opinion is strong on moral righteousness, weak on law. Politcal Process Small groups/interest groups have a well-orchestrated message and outsize power. This group has political power, but they lost - -they did not persuade enough people leave it to the legislative process. o o o Communities can use democratic means to demonstrate moral disapproval We have treated polygamy as morally undesirable. Court should not take sides in culture war leave it to political branches.

EPC Other candidates for heightened Scrutiny Appropriate response to efforts by the majority to exclude certain groups from the political community? Alienage: do we owe the same protection to persons outside the nation as those within its jurisdiction? Citizens vs. non-citizens? Sugarman v. Dougall (1973) [American Citizens vs. legal aliens in NY Civil Service; Court finds STRICT SCRUTINY via EPC for ALIENAGE] o Blackmun: NY statute that excluded legal aliens) (non-American citizens from govt. civil service position filled by competitive examination; exclusion did not apply to higher offices in state exec. depts.; elected officers and appointed officials. o o Issue: can New York issue flat bar against aliens in these types of jobs? Background: EPC protects against discrimination based on alienage b/c it is an immutable/unchosen characteristic.

States Rational Basis: identity b/t government and citizen is important, should not have competing obligations to another power. state has strong interest in having employees of undivided loyalty Encourage aliens to become citizens (easier to become a citizen, faster) As stated rational is both over and under-inclusive for its purposes - > not tailored to this outcome at all.

Standard of Review: as a discrete minority, classifications based on alienage are subject to close judicial scrutiny State argument: economic decision court should stay out of it -> rational basis Court finds Strict Scrutiny History of discrimination against aliens. EPC protects against discrimination based on alienage b/c it is an immutable/unchosen characteristic. This distinction does not survive close scrutiny State could narrowly tailor and require citizenship for some positions

Amendment Text: Two Universes: Citizens & Persons Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Privileges & Immunities attaches only to citizens of the United States Equal Protection Clause and Due Process Clause apply to all people with/in states jurisdiction Court must look at spectrum and situate alienage on the EPC and DPC continuum. Ex. Sexual Orientation choice is important b/c if there is choice, it is closer to economic; if it is immutable closer to race/sex/alienage Alienage = closer to strict scrutiny b/c immutable intermediate scrutiny Where do you go to protect this individual EPC (applies to all people)? Where do place alienage? What is it close to? Test for Determining Level of Scrutiny Spectrum: Is this immutable? Is there a long history of discrimination? Is this an insular and discrete minority?

Summary:

B/c aliens cannot vote no political power need more protection

o Hypo:

Outcome: High Level of Scrutiny 25% Unemployment sTate may pass law privileging citizens possible that economic situation

REhnquist Dissent: This encumbrance of alienship is not permanent they can be naturalized *not an immutable characteristic*

Constitution recognizes basic differences

RAtional basis to want govt. employees with familiarity with our govt.

Disability Intro Hypo: o Rule: NO homes for deaf people on citys biggest thoroughfare; 50% deaf people could be fixed by surgery. What level of scrutiny? Is it immutable? NO mutable History of discrimination not so much Political Power they have some, can have political action?

Problems with analysis: Mutability very difficult category what is choice? No scientific rigor to how this has been used & unsatisfactory. o *Must be able to articulate each side do they have a choice? Or do they not have a choice?

City of Cleburne vs. Cleburne Living Center (1985): Some Intermediate Scrutiny (Rationality +) for Mentally Disabled (in between Rationality and Strict Scrutiny, maybe lower than Intermediate) o o o Compare: Williamson v. Lee Optical Completely Rational Basis Review Standard of Review: In between Rational and Strict? Court says NOT Strict Scrutiny you will not push us up there ; BUT, this looks like invidious discrimination court looks more closely o o Like Roemer Reasoning: there are some legitimate reasons for division Rejection of strict scrutiny for those with disability (mental retardation): Mutability? Mentally challenged are undeniably different (immutably so) ; Technical and complicated issue that is best handled by professionals and legislature not by courts

History of Discrimination?: No history of animus, but history of special attention and accommodation

Political Power/Discrete Minority? : Legislative response show sthat mentally retarded are not politically powerless

Granting Quasi-suspect (pushes WAY UP)/intermediate scrutiny to mentally retarded would open door to elderly, infirm and mentally ill

Standard of Review = intermediate review, Rationality + (like speech analysis)

Dissent/Concurr Quasi-suspect Review is appropriate b/c of History of segregation and mistreatment that paralleled Jim Crow

o Tennessee v. Lane 2004 Conressional effort to enforce Handicapped persons access to courts guaranteed by DPC via ADA Title II constitutional imposition on states. o Congress can authorize private damages lawsuits against states for failure to comply

Summary: Person supporting law argue for low level Person opposing argue for higher Steps: o o Argue by terms of test for lower/higher level of scrutiny Challenge the criteria for judging standard

Any criteria for judging scrutiny can be challenged. Why should level of scrutiny be set by history of discrimination/mutability/political power? o o o o Affirmative Action case using history of discrimination is appropriate now Why should there be strict scrutiny if culture has made discrimination in every instance? If society has changed why should ancient history be part of it? If you have capacity to vote can argue this

Other suspect classe Children of unmarried parents Elderly/aged

Incorporation 14th Amendment

14 Amendment Text: 10 Amendment prevented slavery, but failed to control states 14 Amendment Text what does this do to states
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1 Amendment challenge not applied to states because states wanted to protect established religions (wanted to secure blasphemy and anti-sedition laws) o states were retaining powers that federal government could not exercise
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5 Amendment: o Due Process is in 5 Amendment & 14 Amendment

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I. Incorporation Controversy Issue: Under the 14 amendment are states held to Due Process standards of federal government contained in the 5 amendment? Baron v. Baltimore (1833) Rights guaranteed in first eight amendments did not apply to the states Slaughter House Case: First eight amendments are not priviliges and immunites of citizens of the U.S. under 14 Amdt P&I clause, however, DPC of 14 amendment does limit state action Due Process Clause of 14 Amdt: slowly gets enlarged to include most all protections guaranteed by first 8 amendments
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II. Background Cases: Twining v. New Jersey (1908): [ 5 amdt incorporated through 14 amdt; prisoners not entitled to protection of negative inference via constitution or due process of law defined broadly antidefendant policy] [Overruled} o o Court stated that jury could draw unfavorable inference b/c of defendants refusal to testify Test: Court does not ask whether the instruction violated first 8 amendments, BUT rather Whether the exemption for self-incrimination is a fundament principle of liberty and justice which inhere isn the very idea of free government and is the inalienable right of a citizen of such government? o Holding: Due Process of Law (in general terms) does not require this protection Court looks at history of framers/Magna Carta /state constitutions found that due process of law did not encompass this protection o Arguments against incorporation: 14 Amendment History in opposition to incorporation & no language to that effect Intent of Bill of Rights was used to limit the federal government, so using 14 to apply 1-8 Amendments to states o Arguments FOR Incorporation:
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Federal Common Law that interpret due process 14 Amendment Authors borrowed language from Bill of Rights

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Model choice of same language later in document reflects use in the first instance 14 Amendment due process = 5 amendment Common Law interpretation of due process
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Court chooses selective incorporation vs. full incorporation what is criteria they use? Test: Is this right a fundamental principle of ordered liberty? but where to look? State constitutions History in England/UK/US
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Palko v. Connecticut (1937): Double Jeopardy/Connecticut statute that permitted state to appeal in criminal cases. Not Incorporated by 14 (not fundamental) [overruled by Benton v. Maryland] o Test: is this the very essence of a scheme of ordered liberty? Court finds NO DPC is not offended by this provision o Other right that have been incorporated/absorbed by 14 Amendment are so fundamental that neither liberty nor justice would exist if sacrificed (freedom of thought and speech). However this right (to avoid double jeopardy) is not so fundamental. Double Jeopardy -- new idea created by U.S. Duncan v. Louisiana (jury trial IS fundamental to ordered liberty)
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Adamson v. California (1947): [overruled] o o Issue: Prosecutuion commented on defendants failure to take the stand Lengthy Dissent: Black and Douglas put forth theory of total incorporation Twining theory of natural law is degrades Bill of Rights and appropriates for Court a broad power which Court is not authorized by the Constitution to exercise Point of 14th Amendment intended to accomplish and make Bill of Rights applicable to the states -- & overturn Baron opinion o Frankfurter/concurring: Plain English reading of 14 amendment does not facilitate the interpretation suggested by Blacks incorporation theory Due Process Clause is not completely up to Scotus either it must move within the limits of accepted notions of justice important safeguard is alert deference to judgment of the courts under review.
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Deciphering Fundamental Fairness o Effort to eliminate purely personal preference of Justices in determining what Due Process requires 1) respectful deference to state court or legislative act under review

2) Rest decision on external evidence that these determinations have already been made: -opinions of framers/founder of American institutions -implicit opinions of the policymaking organs of state govts (Isnt this circular???) -explicit opinions of other American courts that have evaluated fundamentality (circular???)

Warren Court abandoned fundamental fairness gradually selectively incorporated more and more of specific guarantees of Bill of Rights

Duncan v. Louisiana (1968) [*overruling Palko ; jury trial is fundamental to OUR ordered liberty] o o Held: 6 Amdt right to jury trial applicable to states via the 14 Amdt DPC * Test*: ??? not emphasis on theoretical schemes but on actual systmes bearing characteristics of a developing common law system? Is this fundamental to OUR EVOLVING SYSTEM of Ordered Liberty? o (unsatisfying and a bit arbitrary) *Is DPC evolving??? justices are admitting an evolving idea of liberty but does this reinsert problem of individual judgment o Holding: Jury trial is fundamental to American scheme of justice b/c we are not operating in a system with other protections that jury provides. 14 amdt incorporates
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Incorporation since Duncan: o o o Selective Incorporation is official judicial approach/doctrine. *Incorporation does not apply to the states in the same way (and with same bite) Theory: Selective incorporation Works because it provides sufficient direction to state court to gain consistent enforcement of the federal constitutional standards Whatr are other things they have looked at? Adhering to langage of amendment and intent of framers

III. Selective Incorporation Regime Hypo: Terrorist are seeded throughout U.S. Fed Govt. will come by and pick up all citizens guns/sabers/grenades. o o Emergency argument on part of executive. Unconstitutional by 2 Amendment:
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Second Amendment: A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. o Text reading: 2 Amendment was passed to protect right of states to set up militias.
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Nevermind language court decides what it means No need to interpret 14 Amendment D.C. is federal. 2 Amendment does not permit local federal government (through D.C.) to prevent gun ownership.
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Heller v. D.C. o o

Mcdonald v. City of Chicago (2010) incoherent/ articulation of right in first instance unsatisfactory o o Facts: City of Chicago has a ban on handguns, that Mcdonald agues is against 2 amdt right Issue: Does 2 amendment prevent cities from limiting the ability of residents to have guns/firearms in their homes? o Majority: Privileges & Immunities Clause that pathway has been foreclosed by long precedent; P&I might be argument for complete incorporation not going there. Court has resisted this since 14 Amendment it is in main body of constitution so to argue that it is an expansion of rights is difficult Due Process Clause -> Selective Incorporation Territory *Reject Total Incorporation of Bill of Rights (Black Theory) *Reject (precedent) any difference of application of amendments (once incorporated) b/t state and fed. Test: Is it fundamental to our scheme of liberty & ordered justice and if it is deeply rooted in traditions? Such a slippery slope virtually ALL Bill of Rights is incorporated now
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Applying Test: History in UK/Colonial/Founders protection from bad govt. Common Law ratifies in some ways rights here. Constitution was in some way supposed to stop discussions of UK Common Law Protection of life, liberty and property 2 amendment right to selfnd

defense is fundamental our ordered liberty U.S. centric view, right to self-defense 14 Amendment Crafters (History of AAs need for guns)
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How do they identify What is the Right ? Charge: If the right exists, why didnt they see it earlier? How do they explain late arrival to party? explanation for why they are just enumerating right now? History of 14 Amdt Enactment that asserts that they should have guns as a right.

All sorts of rights-based discussions of what slaves have been denied these are all existing rights (including 2 Amendment)
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How do you know that there is a right to bear arms? Because a group that didnt have that right was awarded that right in 14 Amdt b/c everyone else had it. Circular Look at history Look at other countries but say it is SO important in U.S.
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There was a right but more regulation has led to need for articulation of right.

Dissent: Thomas argues against Incorporation

Pro Incorporation Dissenters Three options: 1) We disagree with you over incorporation o 2) We agree that there is incorporation, but not here (off the map) 3) There is incorporation, and even if we incorporate the right here, we would still uphold the law. Stevens: If we incorporate right, this case is about the right to have a gun in your home Its a right, but not a fundamental right Why? No Popular consensus -- The fact that legislation limits guns shows that there is no consensus circular

TAKEAWAY: Both majority and dissent are incoherent and somewhat circular. Majority says everyone wants gund Dissent no, people think gun control is good. Court looks a bit ad hoc. ALSO looks how hard it is for court to articulate right in first instance unsatisfying/bare bones/ keeps adding meaning over the course of many decisions Right in Heller= smaller, Right in McDonald = Larger

COMPLETE INCORPORATION IS THE Practical NORM.

Speech & Illegal Action

Deferential Cases Upholding Limitations on Speech in War Time Intro:

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Early Cases: like McDonald, as court attempts to articulate what right might be. Comparative with Other Rights o o Right to believe (asserted under Speech or Free Exercise) untouchable Right to Speech no one has untouchable/absolute right to optimal delivery (alternative avenues of communication are okay. Context Driven with what is situation and what is level of review Harder to protect speech than conduct*

Steps: o 1) What type of speech is this? Speech that is even protected? o o Conduct -------------------------- Speech Continuum

2) How much protection does it get? 3) How much regulation can be applied in this context What forum is it occurring in? Is there a Time Place or manner regulation?

What is Speech? [must determine whether you are in a fact context that is recognized as Speech, leading to First Amendment Analysis} o Not Protected Speech: Fighting Words (Chaplinsky) & Obscenity (*pornography is not obscenity- U.S. v. Miller/ words of no redeeming value are) o Protected Speech: Offensive Language Ex. Fuck the draft Obscene, but still protected Hate speech (holocaust denial) *Hierarchy of Speech Value = More valuable speech, less govt can suppress it. Highest: Political & Religious Speech (Religious speech always decided under Free Speech clause, not Free Exercise) Obscene political speech still high protection Child pornography (Very Low protected speech vs. Obscenity still determining)

Low: Pornography

Where is Forum that this occurring? o TPM Regulations: Government can channel speech into other avenues through Time, Place and Manner Regulations.

Overarching Question - -Why protect speech in the First Place? o o Court will use different and different numbers of reasons in different cases. All cases looks somewhat like McDonald how does court explain & justify right?

Marketplace of Expression If you prevent govt. from regulating the marketplace of expression, truth will fight falsehood and truth will win Even if market is not truth-prover, variety of perspectives is valuable in and of itself

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Concept of Self-Realization (court does not embrace very often) Challenge Function when we elect representatives, they have a tremendous amount of power speech is one channel to challenge & check the government. (checking function)

Venting Function: Protecting speech is Only Way to get ideas out there, prevents more violent manifestations of frustration/opinion

Exam/Future application: o Very messy must analogize cases more than applying a test/formula

PROCESS: o o o What type of speech is this? Is this speech that is even protected? How much protection does it get? How much protection does it get in this context?

Early Cases: Not about speech per seall of these cases are about advocacy of breaking the law Pure Speech -------------------------------------------------------------------------------Violation of Law/Act o Initial Question: Where do we situate speech? o o Education (closer to pure speech) v. Advocacy of Illegal act (closer to illegal act) - *Is advocacy, an advocacy of illegal action or is advocacy closer to education? (interfering with war effort)

Guideposts: o How close to pure speech are we? o Are we chilling more speech than we ought to be?

How close are defendants (who may be advocating illegal action) to accomplishing their end?

MAIN QUESTION -- Where is court drawing line of how much speech can be regulated?

Post Brandenburg: Brandenburg Outcome Lack of Clarity for Advocacy of Illegal Action Cases o Whitney which was just related to association overruled;But other Clear and Present line of cases stand: o o 1) All Illegal Advocacy Go to Brandenburg 2) OR Two Standards

Advocacy of Illegal Action in Non Wartime Brandenburg Wartime Clear and Present Danger Learned Hand Clear & Present Danger takes into account governments interest in stronger way than Brandenburg Learned Hand Rule: Does the gravity of the evil discounted by its improbability justify such invasion of free speech as is necessary to avoid the danger? When the law was applied Context determines gravity of evil (p. 1054) Highly organized conspiracy Rigidly disciplined members Time had come for action Inflammatory nature of uprisings in other countries

Context specific: All free speeches are context-specific. o *Possibility for Two Standards: Brandenburg & C&PD(Hand formulation) (but Brandenburg drowns it out) Argument for Constitutional Curtailment is now weaker in War of Terror situation Brandenburg Vietnam War Brandenburg upheld vs. WWII context! Seemed like our country could be taken over by others that were inimical to our interest.

War Context Explaining these early cases wartime exception to first amendment -- one way to understand these Speech & Conduct Continuum o While these early cases are about speech they are also about action conspiracy/ speech

Total trajectory of 1919 Cases: o Clear and Present Danger Standard which Holmes crafted to protect speech is not serving to protect Holmes begins to reshape standard.
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I. Schenk v. United States (1919) [head of socialist party: 1 mention of Clear & Present Danger Test] Fact: Ds convicted of violation of Espionage Act (makes illegal any action that discourages people from compulsive service) for circulating posters encouraging newly drafted men to avoid service o o o What is form of speech? Pamphlets stating assert your rights What is situation?: Who: head of Socialist Party

Holding: Schenk stays in jai Issue: Can government stop someone from circulating a lame pamphlet discouraging people from enlisting (and thus undermine war effort)? Standard stated: Circumstances- senstitive -- Whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent? question of proximity and degree

Holding: In ordinary times, defendants could say these things, but given circumstances o War time Congress has more latitude Clear & present danger (lower level standard) Why use this standard ? How do we know there is a clear and present danger? because Congress told us so.

Backdrop: U.S. wants to survive World War deep and abiding interest, VERY Substantial interest How: o Analyze document clear that document desired some effect, namely to obstruct the draft (defendants admit that this could be found) o o Apply Circumstance based test -> No ground for stating that *success of the enterprise (speech advocating obstruction) is necessary to find a crime occurred if accomplishment of end advocated is clear and present danger to nation can regulate.

Takeaway: What does Schenk stand for? o o No absolute right to freedom of speech. There will be Broad Latitude in War Context. Content-based regulation & court will give deference.

Where are we on spectrum of speech ---X-----------------------------violation of law. closer to pure speech than act. o Act in Schenk makes speech illegal, but for our purposes, act is accomplishment of the end

II. Frohwerk v. United States (1919) [german newspaper; if you direct yoru speech to a receptive audience, no matter how small its more likely to Where is line? o Small distribution but was targeting individuals that could be successfully persuaded to do this Found audience that could succeed in trying to engage in espionage o Historical Context (war) + context of this speech (looked for individuals that would be receptive with possible means) No 1 Amdt violation
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This speech could be protected, but not in this case, but b/c of audience and targeting, with intent to incite. Conceivable as long as it is conceivable that he could be successful close enough to illegal action that 1 amdt is not available.
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o Factsl:

Success? = does not matter in conviction.

Convicted under Esp. Act for work in German newspaper criticizing war as monumental mistake and outright murder o German Language not a wide audience never going to succeed
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Holmes: 1 Amendment was not intended to give immunity for every possible use of language o Possible to say this, but given circumstances (a little breath was enough to kindle the flame) this is too dangerous to protect. Articles can furnish basis of conviction o Uses Original Intent: First amendment was not intended to include everything thus, opens door to what speech can we suppress (anti-absolutist).

HYPO: Searching for Jihadist in Prison Parallel what is happening here. Speech in Ohio, leader of Socialist party, accused of obstructing draft via Speech in Canton Ohio, violating Espionage Act; Speech itself praised others that refused inductions

III. Debs v. U.S. 1919: [head of socialist. Party; even if incidental purpose given the context,

Holmes: if even incidental purpose was to oppose the war, and if that would be probable effect -> not protected. Ruled under Schenk no protection for this speech Where is Line? o o Historical context (war/red scare) + context of speech (sympathetic to draft resistrs) Contra Frohwerk listeners dont matter (Debs speech is not as targeted) o Efficacy is dangerous To the extent that its just speech but if he even mentions enlistment effort we can stop him before the action (conspiracy theory of stoppage) actually begins to happen.

IV. Abrams v. United States 250 U.S. 616 1919 [Russians call for general strike: holmes dissent Russian immigrants distribute leaflets calling for general strike to protest U.S. envoy to Russia (Russian & English) o o Not as Dangerous as Debs random immigrants, not head of Socialist Parties Abrams is more than pure speech (fixed into printed) (printing like Frohwerk) and in multiple languages Majority: we dont see a difference between these and other folks weve let govt punish before.

War context - deferring to government and will not interfere with that.

Holmes Dissent: (not happy with where standard has gone) o Statute: Disagrees that their pro-Russia flyer fell within the bounds of statute that made it illegal to cripple U.S. prosecution of war b/c U.S. was not at war with Russia o *They lacked intent to bring about inciteful end that is covered by statute. *IMPLICITLY saying that we may have wrongly decided other cases

First Amendment: U.S. constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring forth certain evils these folks lacked this intent. Power to punish greater in time of war than peace. Present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit on the expression of opinion where private rights are not concerned. NO real threat here silly leaflet with no attempt to produce effect of danger/evil/impeding the war
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V. Gitlow v. New York 1925 [newspaper; Snowball theory of danger via 1 amdt; Holmes introduces TIME DELAY] Publication in Newspaper of manifesto of Left Wing advocates overthrowing/overturning govt. o advocates political mass strikes & industrial disturbances
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Issue is this repugnant to DPC of 14 Amdt 1 Amdt via 14 Amdt applied to NY state statute MAJORITY: Upheld: words imply urging to action (general strike that would cause large scale disruption and destroy organized parliamentary govt. o o Looks like action (like previous people advocacy of strike is closer to action) Standard of Review rational basis? Incorporation issue: lower standard of review for states When legislature has determined that language of a certain kind involve such a danger as to be punished court will not look into whether it is likely that the words will actually spark that kin of danger. o statute target incitement only, not all political speech

Revolutionary spark may kindle great conflagration snowball danger

Dissent: brandeis/holmes: o No clear and present danger (Schenk) Speech proposes action at some indefinite time in the future *Time delay moves you closer to pure speech

More time = more likelihood that government will have time to do its job and stop them from accomplishing this end

o o

Leans toward overruling schenk Indictment alleges publicatioin and nothing more no incitement alleged

VI. Whitney v. California 1927 [wealthy socialist woman goes to national meeting; Facts: Woman goes to Socialist Meeting, advocates lawful platform, is voted down. Arrested under Criminal Syndicalism Act , which punishes anyone associated with a group advocating the commission of crime as a means of accomplishing change in industrial ownership. Holding: Affirmed as rational basis b/c danger to public peace and security was clear cannot hold that state action is unreasonable or arbitrary. o *Joint Action poses even greater danger to public than isolated utterances (already organized group) Brandeis/Holmes write clarifying concurrence: You need more evidence of danger (already dangerous group + her resources) more dangerous to justifiy the application. o o Majoritys going to a meeting very close to pure speech that is not enough *this goes beyond mere attendance at meeting -- > this is dangerous group, and she could use her formidable resources to bring about that result o You need more evidence not as easy as majority would say*

Restriction is valid if speech would produce/ or is intended to produce a clear and imminent danger of substantive evil which the state may constitutionally seek to prevent. Because statute is only valid if certain circumstances exist statute alone cannot prove its own validity 1)There must be a reasonable ground to fear that serious evil will result if free speech is practiced 2)There must be reasonable ground to believe tha the damage apprehended is imminent 3)There must be a reasonable ground to believe that the evil to be prevented is a serious one Must be probability of serious injury to the state, not just espoused law-breaking or injury to property or result in violence (not enough.)

HYPO Mosque o Individudal attends mosque, but IMAM is person who is known for wanting overthrow, but all Imam is saying is there are evil elements o Person emerges and shakes hands with four people looks like they are in agreement

Based on cases up to whitney:

Differentiate: Context: Purpose of going to mosque is for religious observance vs. Whitney where she went for that reason

But upshot of Whitney anyone that goes to a meeting where anything that is illegal is discussed can be held liable.

More about right of free association

MIDDLE CASES: ROAD TO BRANDENBURG VII. Dennis v. United States (1951) [Prosecution of Head of Communist Party; clear &present danger standard] Prosecution of head of communist party under Smith Act, cannot knowingly or willfully teach overthrow of U.S. Issue: Although pre- Dennis was technically Rational basis review, the Brandeis Holmes axis won out now issue is was there a clear and present danger at the time of the statements? Learned Hand Rule: Does the gravity of the evil discounted by its improbability justify such invasion of free speech as is necessary to avoid the danger? o o When the law was applied Context determines gravity of evil (p. 1054) Black Dissent: o Court has abandoned clear & present danger rule and sacrificed rights Highly organized conspiracy Rigidly disciplined members Time had come for action Inflammatory nature of uprisings in other countries

Douglas Dissent: o o Acknowledges that freedom of speech has limits To make freedome of speech turn not on what is said but intent of what is said is very dangerous o Government needs to present more proof of danger: Communist are too weak to present any clear and present danger they have been rejected. Free speech has destroyed communism through venting function and marketplace function.

Lots of criticism about clear and present danger o o o Court never articulates bright line standard of what this will mean. Clear and Present is defined in various ways throughout the case. They get frustrated kept trying to redefine it

Holmes tried to hone in descent.

Pressure to overrule cases and come up with new standard BRANDENBURG

III. Brandenburg v. Ohio -- Inauguration of Imminent Lawless Action Clear and Present o o Strategy: find case and make analogy No machinations/tool clear and present danger is so hard to tell govt tends to win (Looks like rationality review/but they dont talk in these terms o *war context = very important excuse for more regulation Imminent Lawless Action Standard forward Brandenburg o o 1) Express Advocacy of Law Violation (directed) 2) Must call for immediate law violation (motivating others to imminent lawless action; inciting is enough) o 3) Immediate law violation must be likely to occur. o What does likely add? Element of probable

Inquiries: How serious must law be? Civil Disobedience

Brandenburg v. Ohio 1969 [kkk leader/imminent lawless action/reversed] Facts: KKK Organizers meeting in Ohio that discusses rally in DC on July 4 and that the Caucasian race will need to take revengeance on Federal Government at some point. Comments via TV. Rule; o This would satisfy clear & present danger rule. o Spark leading to conflagration
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Inaugurates Imminent Lawless Action Standard Why does Court do this now? Context - not a war-time context, no sense of heightened danger What are they describing? March this is action that is legal (vs. advocating govt. overthrow).

Speech That Threatens/Bothers

Speech That Threatens Mutliple Standards o o o Clear & present in War context Brandenburg

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True threat threat to individual person can be shut down

Main Question: When can government shut down speaker?

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Planned Parenthood v. Amer. Coalition of Life (9 cir. 2002) [Nuremberg Files/Anti-abortion Website; 9 Circuit Intent to Intimidate Standard] Nuremberg Website has abortion providers pictures/names/addresses with wanted Posters and Xs over murdered doctos. Holding: Court shuts this down Standard: New Category: Threatening Identified Individuals o Advocating Illegal Activity defined by statute vs. Threatening a Specific Person w/Violence Objective Standard: o o o Would a reasonable person determine an intent to intimidated.?

Advocating Violence of others protected (Brandenburg) Threatening a Person w/Violence NOT Protected Threat Analysis: It is not necessary that the defendant intend to or be able to harm or assault. Not necessary that he be able to carry out his threat; the ony intent requirement for a true threat is that the defendant intentionally or knowingly communicate the threat with the intent to intimeidate. It is making a threat to intimidate that makes ACLAs conduct unlawful.

What can Prolife group do forwards? o In Local communities they can just circulate pictures, but can change imminence and likelihood.

Under Brandenburg Standard? looks like it could have been wrongly decided o o Advocacy of use of force? Yes Imminence of Lawless Action? o How is this imminent fact that someone had done this in the past *Does not seem like imminent action in Brandenburg Must distinguish between speech itself & imminence of lawful action

Likely to produce such action? ??? Internet introduces permanent speech makes it harder to argue harmless speech Argument for greater damages

Efficacy of Speech after Internet o o

Cantwell v. Connecticut (1940) [ Jehovahs witness; cannot shut down speaker implied permission to shut down speech at some point, even religious speech; but protection HERE, b/c no crowd/violence] Facts: Very sincere Jehovahs witness played record on street corner that attacked the Roman Catholic Church to persons he encountered on the street. As a resulst of these activities, Canttwell was charged with inciting Breach of Peace. o Public Street; right to peacefully share his views

Issue: Can you shut down speaker because others surrounding him are very angry? o Context Context Context:

Test: IS there any case of assault or threatening of bodily harm, no trucultent bearing, no personal abuse o o Police must wait until there is risk of immediate violence. Police can take people away when it seems there is no way person could get away before violence occurs. Easier to remove one person than a crowd. easier to get rid of cause of violence

Speech that Produces Hostile Reaction When can police shut this down? o When hostility of crowd becomes an issue.

Feiner v. New York (1951) [Syracuse Man on Public Location; Corner; clear and present danger of public safetyConviction upheld; no protection] Man on street corner standing on box and using loud-speaker in car to encourage attendance of meeting. Made derogatory remarks on Truman, Mayor of Syracuse and other local political officials; and some statements regarding race designed to urge Blacks against Whites. Crowd grew and was blocking pedestrian and vehicular traffic; crowd grew wrestless with some pushing. Cops asked him to stop talking to help break up crowd three times over the course of five minutes - cops arrested him. Majority Holding: We are deferring to police judgement and read of situation here. Cantwell Rule: When clear and present danger of riot, disorder, interference upon the public streets or other immediate threat to public safety, peace or order appears, the power of he state to prevent or punish is obvious. o o Police become concerned that there is a brewing problem might lead to rioting Individual was riling up crowd/blocking traffic police asked him to stop 5 times they can act. o Police have Two Choices in this Situation: Shut down listener? When may they do this when there is no other option given their force.

Must take into account Crowd Size , Risk of Actual Violence *Police can shut down speaker in the face of relatively minor risk most expansive case allowing police action

Shut down speaker?

Why did police do this? Criticizing actual boss incentive for police to shut down person criticizing city mayor. Concern that police are acting politically motivated they are participating in CONTENT Discrimination. * (in future cases when there is evidence of Content Discrimination Strict Scrutiny) * Under current law, Feiner would have gone the other way. now there should be a set of incentives for police to prevent violence and unrest (legitimate interest) not shutting down Feiner for political reasons (illegitimate reasons)

Public Speech Traditional Arenas: public sidewalks and public parks and town squares o Presumption: in these locations, presumption that individual can talk and government cannot shut you down unless there is a legitimate, NEUTRAL, time place and manner regulation. o As long as space is OWNED by private entity no public forum

Dissent: disputes facts of case. Some of this turbulence is to be expected at street meetings. One threat to speaker was very unlikely to be arried out. o *Positive obligation of police to protect petitioners right to speak, before they resourt to removal for the cause of public order o in this case police did not attempt to quiet crowd, but merely move the speaker

Notes: A Far Cry from Feiner: o Edwards v. S. Caroline 1963 HS & college students marhed on SC state capitol grounds, which were public. No interference with pedestrian/vehicular traffic. After 30 minutes police said they would be arrested if they didnt leave. Began to sing peacefully arrested. No violence or threat of violence + sufficient police presence. Statute punishing speech if speech stirred people to angr/unrest cannot stand. o Cox v. Lousiana (1965) Protest in town 200-300 black demonstrators, 80 police and 100 or so white workers on opposite sides of the street. Black leader said lets go get lunch in segregated restaurants. -> caused muttering police ordered dispersion used tear gas. Overturned preachers conviction. Demonstrators were not violent nor threatened violence, no evidence that white group threatened violence + sufficient police presence

Gregory vs. City of Chicago 1969 Anit- segregation March of about 85 protestors +100 police white crowd grew to 1000 with threatening taunts an throwing rocks. Group arrested when they refused to leave. conviction void of evidentiary support that black group was violent. Overturned

o Hypo: feiner is in the middle of traffic jam you can treat him as time/place/manner regulation & move speaker. o IF it is just location city is fine in requesting move, even if it cost city money

Fighting Words Fighting Words o Defendant cannot even raise 1 Amendment defense b/c this speech is completely unprotected. o Completely Different Era Laws wanted calm, civil society
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Chaplinksy Test: o o o 1) Must be directed at hearer 2) & have direct tendency to cause acts of violence 3) by the person, to whom, individually, the remark is addressed, i.e. not general idea (Fuck the draft on Tshirt = okay) o Why? Polices legitimate interest is in preventing violence. must be possibility/direct tendency to act of violence. Speakers ability to speak is defined by audience tendency to violence: Individual group that is more prone to violenceless likely that speech can continue. o *Extremely Context Dependent *Even if there is highly valuable speech (I want to vote for Obama) he can be shut down when those words will cause violence by the speech. *In fighting words context a direct tendency to incite violence by the person at which speech is directed no protection for 1 Amendment. Does not matter what speaker reasonably believes but it pivots on what police reasonably know. o *IN OUR ERA very, very difficult to find fighting words b/c everyone is so used to words/viewpoints that are different than their own applies to images & graphics, but they lack the same immediacy. Ex. KKK Paradeimage is incendiary there image does not justified in shutting down. generalized message gets more protection
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 Most likely to be a bar fight scenario/ not frequently political. Hypo: o o Speakign to large group/undifferentiated group Feiner Speaking to individual person with fighting words Chaplinsky Test Is there going to be an act of violence? Is speaker engaging in speech that tends to lead to an act of violence police legitimate interest in preventing violence. Balancing interest you can move irritating speaker before act of violence occurs

Chaplinsky v. NH (1942) ,jehovahs witness in NH; Fighting Words = Low value speech; conviction upheld} NH Statue- no person shall state an annoying word to anyone or call him by an offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent do tderid/offend/or annoy him. Defendant near City Hall (Public Space) distributing pamphlets that complained of other religions as rackets (extremely offensive). City Marshall attempted to quell crowd and say that D was within rights. incident occurred and police officer took Chap to station. ON his way he called City Marshall a fascist. As applied challenge to NH Statute Holding: Fighting words o B/c as construed NH Statute only targets words which are likely to cause an average addressee to fight/ profane/obscene words they are interpreted to incite a breach of peace. 1 amendment will not protect them. Supreme Ct of NH found that the statutory language was probably unconstitutional but court interprets/limits it to give it a Constitutional application. o Chaplinsky used threatening language to individual person BOWER. General words about racket fine. Words directed at Bower *NOW authorities are trained to not react vs. then abuse of authority figure was still Chaplinsky Fighting Words Rule o o Fighting words are small class (flag burning case Street v. New York) Must be directed at hearer & have direct tendency to cause acts of violence the person, to whom, individually, the remark is addressed, i.e. not general idea (Fuck the draft on Tshirt = okay) Rule: Two Tier Value of Speech
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Profanity/direct threats/fighting words less deserving of protection.

Like Clear & present danger? Focus on if average person would be likely to fight (SEXIST) o Speech is unprotected because it is likely to incite violence (b/c these cases are after the fact though, if no violence was inited what result?)

Skokie Controversy: [Prior Restraint on Speech (?) Requires Procedural Protections, i.e. expedited review] Nazi Rally in majority Jewish town to protest requirement of 350000 insurance bond before anyone could protest in public parks. Procedure: o District court issued injunction appellate and state supreme declined to stay injunction and then denied a petition for direct, expedited appeal. o SCOTUS found that this restraint on speech (wholesale injunction) could not occur without proper procedural protections, i.e. expedited appellate review If no expedited review state must stay the injunction
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In the mean time, Skokie passed a number of other ordinances (no uniforms; no speech directed at inciting racial/religious hatred, expensive insurance requirements) 1 amdt violatioins all. Commentary: o Tolerance as an act f will symbolic act indicating an awareness of intolerance and national discipline to strengthen it.

Speech that Discloses Confidential information/Prior Restraint Speech that government would rather keep private o Ex. Rape Shield Laws government can keep some speech confidential

Prior Restraint o Very high level of scrutiny: Heavy burden against constitutional validity (Pentagon Papers), but NO ABSOLUTES o Two types: 1) rule against making info available (gag orders) media never gets info 2) media has info & govt attempts to enjoin o once press has information more difficult for govt to win if information is already out prior restraint is too late*

* Problematic How will court adapt old doctrine to new era? Does government have stronger argument for preventative prior restraints b/c in internet era information is so easily distributable? *Easier to argue for initial prior restraint

*Harder to argue for post-leak restraint Does distribution of these links make individuals traitors

What has been upheld as prior restraints? Rape victims/Child Victims upheld Government may claim strong interests Meaningful national security current issue/movements about how war is being conducted Real protection of children from serious harm. (redact name/family/address/city)

Test for Prior Restraint: o o Learned Hand Clear & present danger Landmark Rule: Clear & Prresent Danger: State interest of highest order before restricting publication of truthful information, especially in the presence of alternative method

Prior vs. Post Restraint not completely clear delineation o o If fines levied POST are so high, they could create a prior restraint on speech Ex. NYT risks $5 million damages for defamation effect operates like prior restraint b/c self-censorship) o Law of defamation is subject to 1 Amendment b/c government has put in place defamation law - government is mediating this will not enforce something that is unconstitutional.
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Landmark Communications, INc. v. Virginia, 435 U.S. 829 1978 *Virg. Newspaper/judge; highest order of state interest to limit publication of truthful info) Newspaper reports accurately that Judicial Investigative review board was going to indict state judge convicted under statute of reporting conf. matters pending before commission 1 Amdt violatioin as applied. Balancing Test: Clear and Present danger of public exposure must be weighted against criminal penalty each court must do this in each situation, not a mechanical application of rule o Imminence of danger/ magnitude of harm [chilling of witness testimony, distrust of judiciary, undermining judges power] here is not so great as to justify this wholesale ban on speech. o Court noted other ways that state could achieve its goals, less intrusive on right of free speech. o Rule: State interest of highest order before restricting publication of truthful information, especially in the presence of alternative method
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Nebraska Press ass. V. Stuart [prior restraint vs. fair trial judge must consider all other options before striking inflicting gag order pretrial] Criminal trial: multiple murder case. Judge entered an order which restrained all news outlets from reporting accounts of confessions made by defendants. o Parties: Nebraska Press Assoc. v. Stuart (Judge who placed gag order at the agreement of both defendant and prosecutor) Defendant concerned about 5 Amendment Right to Fair Trial 1976 everyone in a geographical community will be affected by this news o Criminal trial not civil
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Press Association: o o o (fact/news story)-------------News -------------T1 waits until court gives permission -T2 Timeliness Prior Approval for News is at heart of constitutional evil Censorship by inaction, government could hold data & suppress it > governmental discretion over what gets to public and what does not Gives government ability to paint itself in rosiest light Takes away tools from people to participate in democracy effectively *ANY Time government official has unbounded discretion with no criteria first amendment very high scrutiny. Must have some machinery in place to limit discretion

*Prior Restraint public NEVER gets information ever Dictators love prior restraints can craft news to their interest

Con Law I press/expression/critique is the only means by which people can hold elected officials accountable

Criminal Justice System supposed to be accountable to people.

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Free speech + Free Press Clause -Court: 1 AMdt provides special protection for prior restraints on speech but, can still TRUMP this rule with good enough reason o Most serioius and least tolerable restraints immediate and irreversible action o o Particularly great if restriction falls on news agencies

Onus is on the judge to 1) ensure fair trial and 2) not curtail press from covering case unduly Apply Learned Hand Rule/Dennis Gravity of Evil x improbability > invasion of free speech? TRIAL judge was correct in finding that gravity of evil was great BUT did not adequately consider alternative measures Judge could have sequestered jury or Changed Trial Location

Judge can NOT pick and choose what info can come out (thumb on the scale)

Ex. Good enough reason protection of victims in sex abuse case (Ex. Philadelphia Gag Order on Sex Abuse prosecution)

NYT v. U.S.; U.S. v. Washington Post (1971) [Pentagon Papers power grab for executive, wanting judiciary to stop what they cannot, without any Congressional authority; Speech PROTECTED] Pentagon Papers June 18 , WAPO and NYT publish excerpts. U.S. files to enjoin further publication, no publication occurs during time of discussion. Government whistleblower handed over to press. Final decision issued June 30 . U.S. claims national security/prolonging war/death of U.S. soldiers by publication. NYT/WaPo claim 1 amendment protection. o o National Security Executive knows the most about this. Big Case --- only so many opinions in big cases with ego power-st th th

Per Curiam Rule: Government has not met burden to show [per curiam = most vanilla aspect of opinion] o o Prior restraint =heavy presumption against its validity Govt. carries burden of showing justification for the imposition of such a restraint (always govt burden? Only in prior restraint?)

Black/Douglas: o o o No ABSOLUTE Rule against ALL Prior Restraints, but VERY HIGH BURDEN Ex. Iraq War no Black/douglas concur: Strongest Tone Stays are flouting 1 amendment Free press exists to censure government & serve the people National Security is no exception Security is too broad and vague a claim to ever abrogate the 1 amendments clear imperative. o Douglas/Black Concur: Secrecy promotes bureaucratic errors. Serious impact of disclosures is no basis for sanctioning prior restraint on press Purpose of 1 Amdt prevent govt from suppressing embarrassing information History 1 amdt was adopted against the common law of seditious libel being used as a tool to punish dissemination of embarrassing mateirial Secrecy is fundamentally anti-democratic and protects bureaucracy *Stays flout 1 amendment
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Brennan Concur: Need CONCRETE Government reason; NO ABSOLUTE Bar. o o Weaker protection than Black/Douglas, but still strong. Stay/granting of injunctive relief was wrong in the first place

Failure of Govt Proof: *Govt claims based on conjecture/ or surmise never meet standards for prior restraint

TEST: *Only govt proof that publication WILL inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling safety of transport IN MOTION can support even an interim restraining order
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EVERY Restraint in this case has violated 1 Amendment until Govt makes case, no injunction can issue

Stewart/White: Structural Analysis: Balancing & must consider roll of different branches o Executive responsibility to guard secrets in absence of Executive Regulation or Congressional Statute court cannot act in absence of clear danger o Stewart/White concur: Executive Emphasis. Secrecy is executives responsibility if Exec. Fs up, thats execs problem he can promulgate regulations No guarantee of direct, irreparable danger to Nation to justify Court is not asked to inepret any laws or construe regulations not judiciarys role. o White/Stewart: Congressional Emphasis. Criminal Penalty is an option Possible that government could meet very heavy burden to demonstrate clear/present danger to permit injunction but has not done so here, especially in the absence of Congressional authorization Congress has never authorized an injunctive remedy against threatned publication rather criminal sanctions and their deterrent effect has been sufficient. White: possible that government could succeed by pursuing criminal penalty which Congress has authorized; it did not however authorize injunction o Marshall: Equity Power of Courts does not reach this far. Pres. wants equity power of court to do this for him, but Congress did not grant that to him Court will not step in and give to him

Berger Dissent: Wants remand to develop record o o Prior restraint is okay as long as it is time limited. Not sufficient time to develop record (Times had story for four months, they can wait a little longer)

Harlan Dissent: Separation of Powers analysis o Executive branch deserves deference in matters of foreign policy; judicial function in passing on those matters is very limited. Could appoint another member of executive to determine costs of disclosure,

TAKEAWAY:

PRIOR RESTRAINTS ARE BAD, BUT COURT DRAWS BOUNDARY LINE BETWEEN SUPPRESSION AND FREEDOM OF PRESS AT 9 DIFFERENT POINTS.

Hypo: Penn State Law Against Police Records at University being disclosed -> Media Wins o Case of prior restraint No national security No difference from other police forces in other states that are thriving despite fact that documents are public government must come up with VERY STRONG interest/reason Similarly situated departments cut against these claims

Overbreadth Vagueness & Prior Restraint How can government restrain speech? o o What is protected? What means of restraint are constitutionally permissible Overbreadth o *tests constitutionality of legislation in terms of potential applications: on its face challenges vs. as applied challenges (constitutional as applied to individual defendant) o that petitioners speech could be constitutionally restricted on its terms is irrelevant Procedural guarantees play a big role in protecting freed of speech

Exception from traditional as applied mode of judicial review & general rule that individual has no standing to litigate rights of third persons

Vagueness (not studying) Prior Restraint o Background: UK Common Law guaranteed no previous restraints on press such as licensing o No previous restraints on publication but likewise no inoculation from subseqpuent punishment of such as may be deemed contrary to public welfare. o Concerns re: Licensing Schemes lovell : Cannot vest restraining control over the right to speak in an administrative official where thera are no appropriate standards to guide his action. Unfettered discretion & Self censorship Because there are no standards for approval no ability to gage as applied as a legitmate or illegitimate denial. Arbitrary

Overbroad Statute: Two alternative methods o Narrow its Interpretation: Federal court can use language from state court to interpret statute more natrrowly. Chaplinsky if it is applied this way.

Strike Completely: Gooding

Overbreadth & Vagueness: Gooding v. Wilson (1972) [antiwar demonstrator; GA statute interpreted too broadly 1 Amendment strikes down] Antiwar demonstration at draft center, police attempt to move him, he curses them out White Son of a bitch, Ill kill you convicted under Georgia Statute targeting offensive language. o Statute states: any person who uses opprobrious (conveying disgrace) not sure that son of a bitch really qualifies as (conveying disgrace) Court has two tools: o If statute is suppressing obscentity or fighting words first amendment does not come up (totally not protected) o Problem: statute is broader than thatdisgrace-inducing words
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OVerbreadth Doctrine: o Any person convicted under statute can challenge for overbreadth, even if his prosecution under the statute would be constitutional (in line with Chaplinsky) Statute will stand ONLY if its construction by state courts is not so broad as to encompass protected speech. o o Must look to state courts for the construction of the statute. If statute is NOT narrowly tailored and/or narrowly applied to fighting words context Unconstitutional o Facial challenge: Normally, facial challenge must mean that statute is unconstitutional in all circumstances *Facial challenges and speech Overbreadth facial challenge is allowed to prevent chilling potential of self-censorship. o Facial challenge may advance even though application could be constitutional.

Concern: Self-censorship/ chilling potential

Holding: Statute is unconstitutional as interpreted by Georgia Courts and when they give deference to juries to determine the issue unconstitutional application in that it is capturing/deterring speech that is protected.

Dissent: o Odd that court can find Statute strange as applied but not on its face (by its text), which is the normal course of things. o Usually petitioner may only challenge application to himself, not some hypothetical

What can Georgia do now to limit this type of behavior, but pass the same statute and reinterpret it?

Hypo: o OWS Philadelphia homeless took over most of the tents; Philadelphia says that protestors may only speak from 9 to 7 pm. Can Philadelphia limit speech between 7pm and 9 am. o Philadelphia: this is a health issue, complaints by businesses

Inquiries: 1) Do they have enough avenues of communication? Court in Gooding is concerned about blanket rule that controls in every other city. Problem in Gooding is that it suppresses significantly more speech (24 hours/day, 365 days a year) than it is allowed to protect. 2)If there is a statute that ONLY aims at speech court will question this. Overbreadth does not apply in Free Exc., EPC, Due Process

Prior Restraint: What is permissible means of restricting speech? o Prior restraint may be invalid even if speech itself could be restricted constitutionally by other means Ex. Prior Restraint vs. Post Hoc imprisonment

Means of Prior Restraint: o o Licensing Judicial Injunctions

Standards of Review: o Content Discrimination -- if there is evidence, this gets highest level of scrutiny compelling interest and Narrowly tailored means o Time place& manner Intermediate Scrutiny Government must have important interest and means must be related to end they which to seek. Ex. Philadelphia OWS restriction is content neutral and tailored to concerns about sanitation and sexual assault Are there alternative methods for delivery of speech? *Right to distribution, but no right to optimal delivery Nothing is absolute. o

Lovell v. Griffin (1938) [jehovahs witness; complete discretion strict scrutiny]

Jehovahs witness fined and imprisoned upon nonpayment for passing out fliers in contravention of City ordinance deeming all distribution of literature a nuisance unless signed off by the City Manager. (no limitation to only offensive materials,etc.)

City Argument: Littering is bad. This literature in unwanted mess. This is the sort of distribution of materials that is not good. o This is alternative fine for littering.

Holding: Ordinance is invalid on its face. o Standardless Discretion acts as impermissible Prior Constraint: Ordinance is not limited to obscene materials but applies to all materials, and is not limited as to time or place Complete Discretion Invalid on its face- > b/c it permits license and censorship in its baldest form Standardless discretion must have appropriate safeguards{Freedman Safeguards) (see below).
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If you combine Time/Place/Manner + Freedman Safeguards cities can go pretty far.

History of 1 Amendment focused on preventing just this type of censorship, which allowed govt to pick and choose what materials became public

**Rich history of party tracts (not in book) in political discourse in our country, this is a tradition Technologically, at the time, flyers were best way to distribute your information this is very mechanism of speech. Leafleting is classical American form of speech. Hypo: Internet -- broadens ability to reach people, but makes targeting information to certain communities more difficult -> if there are ALTERNATIVE PATHWAYS, government can shut down some of them. Right to speak your ideas, NOT right to optimal delivery.

*Citizens in United States have right to REPEAT speech in a permanent/physical form.

Notes: o o

Outcome: no city can ban pamphleting post Lovell.

Standardless licensing bad because it allows complete discretion with no review Facial Challenge = only way to deal with Standardless licensing; Self-censorship is immune from an as applied challenge b/c it is limited to individuals own actions vs. governments abuse of power

Absence of Express Standards hard to challenge as illegitimate abuse of power b/c no clear standards to judge actions upon

*Even nominal permit fees for organizations/solicitation/parades cannot be levied in the absence of clear standards governing fees.

Licensing with Standards: As long as standards are clear (no obscene materials) could licensing board exist? seems like this is still an unnecessary barrier??

Objections to Licensing: System of prior restraint normally brings a far greater amount of speech into the shadow of government control Prior restraint can make constitutional speech obsolete, and withholds it from public consumption (vs. criminal punishment, which still allows speech to exist publicly) Criminal punishment requires more effort/thought on the part of govt. Criminal procedural protections are not in place in prior restraint Prior restraint usually operates behind screen of informality so it is not as open to public review Attitudes of licensers (biases) drive them to excess

Freedman v. Maryland 1965 [ licensing scheme; court struck down statute requiring movie to be approved by board of censors before being shown] Statute invalid b/c licensing system presents particular dangers to constitutionally protected speech. o o Censorship proceeding puts initial burden on the exhibitor/distributor of speech Process may deter some from coming forward at all or challenging adverse decision

Freedman Safeguards: Non criminal process which requires prior submission may take place only in the process of procedural safeguards designed to obviate dangers of censorship system. o o 1) burden of proving unprotected expression rests on govt. 2) only a process requiring judicial determination of final status of film can impose final restraint censor board must either go to judiciary to restrain film or allow its showing within a specified brief period. o 3) Prompt judicial decision so as to negate interm, erroneous denial of license

*Freedman safeguards are NOT necessary for content-neutral scheme regulating time, place and manner of expression

Near v. Minnesota (1931) [judicial injunction operating as prior restraint]

MN statute provided for the abatement as a public nuisance of malicious, scandalous, or defamatory publication. Saturday Paper wrote about jewish gangs and failure of police chief to control them. Court perpetually enjoined from paper from publishing. o Goal of statute: was to correct gap b/c prosecutions did not prevent the scandal or offer a means of efficient repression o Statute operation: Publisher of paper must show good motives and justifiable ends before injunction will be lifted. Onus on publisher

Holding: Statute is invalid o o o Just b/c protection is available for purveyors of scandal does not make it less important Subsequent punishment is the appropriate means of dealing with this If this statute is invalid, any system of prior restraint would be valid impermissible legislative power grab Any constitutionally valid speech could be hauled in and enjoined depending on proof of good motives.

Dissent: Butler + 3 o Statute does not operate as previous restraint - it offers a remedy by a suit in equity (injunction) o Doctrine exposes everyone to evils of proven malicious publishers.

Notes: Why is this injunction a prior restraint? Potentially puts onus of proof on constitutional speech. Bad actor does not always equal bad speech. Injunctions vs. Criminal punishment o o o Injunction is more likely to be followed Injunction would be direct violation of judges authority/targeted action Collateral Bar Rule: injunction must be obeyed until set aside, and if not, person defending against ensuing charge of criminal contemp may not defend on the ground that order was erroneous or unconstitutional Injunction violation forces party to cede substantial case Even patently unconstitutional injunction may not be disobeyed b/c no ability to challenge constitutionality. o Criminal Punishment at least offers opportunity to prove statute is unconstitutional

When is injunction NOT a prior restraint? o State law bans collateral bar rule from use in expression cases breaking injunction does not cause forfeiture. Problems still remain: Abstract quality of adjudication

Tendency of methods of regulation to be used more readily than punishment mechanism

Symbolic overtones of singling out one person and enjoing type of speech assumption that speech is a hazardous activity to be enjoined

Pittsburgh press v. Pittsburgh Commission on Human Relations: Court ordered Pittsburg press enjoined from publishing help wanted adds by sex.

Order did not protect constitutionally protected speech, order came AFTER record was full (not speculative like Pentagon papers) and did not operate as a prior restraint b/c final injunction came only after adjudication.

Low Value Speech

Low Value Speech:

12/18/2011 12:52:00 PM

What is it? False statements; non newsworthy disclosures of private facts; commercial advertising; obscenity; lewd, profane and indecent speech, & hate speech & pornography False statement of fact Arises in defamation cases o o o Libel not protected by 1 amdt Defamation involves damage to professional reputation and damages are income related Must look at what is state law mediating relationship b/t private parties (what is state action at issue)?
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Spectrum of Liability: Public Officials, Public Figures (& Public Figures on Limited Issues) actual malice standard Private individuals , Public Figure +Private Issue (unrelated to what they are have put themselves out there on 1 issue) negligence standard o Public figure + private issue publication argues public figure ; individual argues this is unrelated o Who has ability to use media to correct false statement publicly? More disincentives against newspaper publishing that against private individual

NY Times v. Sullivan (1964) [ Public official cannot sue those that publicly criticize his conduct] Preachers/advocates publish advertisement in NYT focusing on actions in Alabama. Montgomery chief of police sues for libel in Alabama. Some statements were inaccurate. Plaintiff made no attempt to prove pecuniary loss. Judge included jury instruction that because inaccurate the words were libelous per se and that law implies legal injury from bare fact of publication authorizes punitive damages. o What purpose is served by opening NYT/press to liability for advertisements? Idea that NYT has role in getting out marketplace of ideas. Publishers will have to worry about this just as much as Op-Eds. Outcome: publisher is sheriff of marketplace of ideas. o Backstory: Truth in Advertising Laws are Constitutional; this case is NOT about false advertising, but it is about whether publication can carry something that is not 100% accurate -> YES Holding: Reversed Press does not have to police marketplace of ideas for TRUTH falsehoods can be in marketplace of ideas. Rule of law in AL was insufficient to support safeguards for freedom of speech and press in a libel action involving a public official suing those who criticized his conduct o Common law nature of Alabama libel law does not prevent SCOTUS from striking it as contrary to 1 Amdt not the form of power, but whether such power (i.e. state) power has been exercised
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What a state may not bring about by means of a criminal statute is likewise beyond reach of civil law of libel.

Rule: Constitution delimits States power to award damages for libel in actions brought by public officials against critis of their official conduct actual malice/knowledge of falsity must be shown o Self-censorship is concerneven allowing a defense of truth will deter not only false speech but any speech near the ulnlawful zone (1 amendment does not recognize any exception for any test of truth erroneous statements are part of ree debate) o o Dampens vigor and limits the variety of public debate dangerous for democracy History: sedition act pardons
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Concurrence: o Notes: o central meaning of 1 amdt sedition libel cannot be made subject of govt action; protects political speech for purpose of protecting democracy o False speech vs. knowinlgly/recklessly false speech (unprotected)
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Press should have absolute immunity for criticism of the way public officials do their duty.

OUTCOME: Actual Malice Standard Plaintiff has burden of showing that publication knew falsehood or was acting with reckless disregard to truth. (*difficult for plaintiff to prove b/c defendant has all information) o o Knowing: If editor knows story is untrue: cannot publish Reckless Disregard what is newspapers procedure? (mistakes are OKAY but procedures must be present to show No recklessness) Today: need three individual (human) sources to get published lots of stories that might be true are unpublished o Defamation involves injury to professional reputation.

Ad hoc story by story standard is treated as reckless. Also what is reputation/expectation of publication?

TRUTH is absolute defense (regardless of procedure)

Curtis Publishing Co. v. Butts; AP v. Walker (1967) : extending actual malice requirement for libel action beyond public officials to public figures Butts =Athletic director for UGA, and employee of Georgia Athletic Association, accused of trying to fix football game Walker = private citizen with distinguished military career and figure of national prominence; AP reported that he encouraged crowd to use violence against federal marshals who were desegregating campus of Univ. of Miss. Sharply Divided opinion: Extended rule about public officials to just public figures because

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Distinctions b/t govt and and private sectors were blurring Public figures have access to mass media to correct misconceptions Public figures have influenc to shape events/society at large

Gertz v. Robert Welch (1974) : declining to extend actual malice rule to any public issue Gertz was lawyer representing family of slain youth who was shot by Chicago cop. Welch was owner of paper that published article stating that Gertz was responsible for cops framing and that he had communist ties. TC finds for respondent, extend actual malice to public issue Rule: Private individuals are more vulnerable to injury than public officials and figures and also more deserving of recovery states have latitude in drafting libel doctrines related to private figures, so long as they do not hold liability without some fault (negligence/recklessness/knowing) o 1 Amdt recognizes no false idea depend for its correcton on the competition of other ideas o But no constitutional protection for fales statements of fact these do not support public debate, and are thus of slight social value no protection o Erroneous statements of fact are inevitably part of free debate punishment runs the risk of restricting press. o Need to avoid self censorship is balanced against compensation for individuals for harm resulting from falsehood Public individuals have more avenues to self-help thanprivate inidviduals. Public officials/figures typically choose to become public
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Recovery is limited to actual damages on proof of falsehood; punitive damages may only be assessed in cases of adctual malice (showing knowledge of falsity/reckless disregard Dissent douglas: No liability for press. Ever. Brennan: should extend rule to public issues + private individuals in White: should not have required plaintiffs to prove negligence in order to recover too high a bar for private individuals Notes: Public vs. Private Figures: limited-purpose public fibures) o Test: o Did plaintiff have special place in society? Did plaintiff engage the public media in the resolution of the issue at hand?

Firestone Divorce magazine stated grounds were granted on adultery of wife ruled NOT a pubic figure b/c she never assumed any special role in society/nor thrust herself into public controversy

Contempt conviction for failing to appear in Grand Jury case on Soviet espionage later named a Soviet Spy in book. NOT a limited purpose public figure, despite criminal conviction related to purpose no effort to engage press. One who commits a crime does NOT become a public figure even for limited range of issues relating to ihis conviction b/c it would open oup too many people to defamation.

Dun & Bradstsreet v. Greenmoss Builders *no actual malice for private figures & private information negligence standard] Inaccurate report by financial info agency stating that plaintiff had filed for bankruptcy. Jury awarded compensatory & punitive damages SCOTUS approves b/c Rule: No public concern no need to show actual malice for compensatory & punitive damages o Private speech is protected, but not as protected as public speech/matters of public concern that lie at the heart of 1 amdt. o No dangerous chilling effect on public discourse just encourages d&B to do better due diligence
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Hustler Magazine v. Falwell (1988) [public figures may not recover for IIED] Hustler publishes parody interview in which Falwell states that his first sexual experience was with his mom in an outhouse Jury finds for Hustler on libel charge; but awards Falwell damages for IIED. SCOTUS Reverses IIED Rule: 1 Amdt prevents public figures and public officials may NOT recover for the tort of IIED by reason without showing action that the publication contains a false statement of fact (not parody) which was made with actual malice, i.e. knowledge that it was false or reckless disregard for truth. o o Social discourse involves exploration of unfortunate traits/events Type of speech is important in public debate
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Non-newsworthy Disclosures of Private Information Cox broadcasting v. Cohn (1975) Reporter publishes name of rape victim, contrary to state statute, after locating it within public judicial documents prior to trial of rapists Limited Holding: State may not limit publication of rape victims name obtained from public records, judicial records maintained in relation to public prosecution, which are themselves open to public. Broader Rule: states may not permit the publication of accurate information obtained in public records.

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iNdividuals rely on press to inform themespecially in matters of public trials. Press scrutiny improves administration of justice. Right of privacy does not extend so far to check publicly available information States responsibility to prevent publication of that information.

Obscenity [sex involving adults] Two Eras: o o 1957-73: Warren court struggling to define obscenity 1973 Present: Roth & attempts to reformulate doctrine

Main questions: o Is obscenity low value speech? What is obscenity? What interests justify suppression of obscenity? o Obscenity somehow involves sex/erotic

Roth standard [overruled by Miller] utterly without redeeming social standard Miller Standard -- governs porn involving ADULTS vs. Porn [two different lines of cases] o Roth Three Prong TEST- Modified by Miller- Must fulfill all three 1) whether the average person applying contemporary community standards would find the work, as a whole, appeals to the prurient interest, 2) work depicts or describes in patently offensive way, sexual conduct specifically defined by state law AND 3) whether the work, taken as a whole lacks serious literary, artistic, political or scientific value o Is there ANY SCINTILLA of artistic/poltical/scientific value? - Protected
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Miller flips Roth 3 prong makes it almost impossible to limit the obscene - Womens studies professors that state that porn makes second-class citizens material has social science value Ability to protect women/or anything goes down the drain

Outcome NO Sexual Speech is classified as Obscenity Classifed now as pornography, which is low-level speech. o o Cities want to limit this Zoning cases Court gives wide berth to cities to limit negative secondary effects can put all businesses in one place or force them to spread out. o New York Ex. Rezoned uses like this into the Wetlands area which is mostly unusable Only 40% of floor plan can be dedicated to explicit pornography Made business very affordable

Sales of products (conduct) vs. Media (obscenity only applies to this)

Roth v. United State (1957) [prurient interest test] Defendants convicted of 1) a federal statute that made mailing of obscene items illegal and 2) CA state statute that prohibited any person write/print/sell obscene writing. Convictions UPHELD Obscenity is not protected speech & may be suppressed without proof that it will create a clear and present danger of antisocial conduct. o Obscene material = material which deal with sex in a manner appealing to prurient interests o *just shifts the ball to prurient Obscenity & sex are not synonymous.

Prurient Interest Test: whether the average person applying contemporary community standards would find the dominant theme of the material taken as a whole applies to prurient interest?

Dissent: Douglas/Black o o No evidence that sex was to be treated in a special manner than other speech. 1 Amdt was designed to preclude courts as well as legislators from weighing values of speech against silence public can handle this just as it handles noxious ideas of theology/politics/any other field
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Notes:

Miller v. California 1973 Part of a group of obscenity/pornography cases being reviewd by court Defendant had mass mailing campaign to advertise adult material (unsolicited advertising brochures), involving explicit drawings/photos of genitalia and intercourse Issue: application of States obscenity law to situation wherein sexually explicit material have been thrust by aggressive sales action upon unwilling recipients Roth Rule: State obscenity laws must be limited regulation of works which depict/describe sexual conduct. Conduct must be specifically defined by statute as written or construed o Roth Three Prong TEST- Modified by Miller 1) whether the average person applying contemporary community standards would find the work, as a whole, appeals to the prurient interest, 2) work depicts or describes in patently offensive way, sexual conduct specifically defined by state law AND 3) whether the work, taken as a whole lacks serious literary, artistic, political or scientific value

o o o

Obscene materials are unprotected but state statutes must be carefully limited. Rejects high bar Utterly without redeeming social value -- Roth Localized Rule vs. 1 Amendment Court is unwilling impose national standard b/c risk to free expression cuts as much as risk of suppression Diversity of nation no 1 standard for questions of fact arouond prurient interest and patently offensive.
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Dissent: Douglas o 1 amdt protects all speech, does not exclude that which is merely offensive to particular judges and juries o If obscene is to be defined let people do it via constitutional amendment (not judges).
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Dissent Brennan: o Statute is overbroad and thus invalid on its face.

Paris Adult Theatre I v. Slaton Nudie film joints in Atl, Ga. No offensive markings on the door and clearly posted Adult films and 21 age limit. Holding: Court affirms GA Sup. Ct. against movie theater Paris Rule: state may, in its own rational judgment, free of empirical evidence about safety, judge that the health of the community is improved by preventing public displays of obscene material. o Fact that this is limited to of age, consenting adults does not lessen states interest or ability to do this. Dissent: Brennan/Stewart/Marshall Time for a change o Problems with Courts approach need for greater stability, chill on protected expression, lack of fair notice o Balancing of interests is difficult & obscenity is undefinied any attempt to curtail protected speech, especially of such a speculative and ill-defined interest, necessarily curtails protected speech that is too much and states interest is not strong enough o Reserving issues of juveniles and/or unconsenting adults, state cannot justfy substantial damage to constitutional rights that inevityable results from these efforts. Can still regulate manner of distribution

Child Pornography Hypo: pornographer uses actual photographs of children & modifies with o Ferber: any person staging sex b/t kids is going to jail Rationale: children are harmed in the making

Rationale 2 children are harmed each time these things are looked at CPPA overruled b/c virtual depiction of child having sex protected speech

Ashcroft - Virtual: virtual presentation is protected b/c no kids are hurt

Williams [Protect Act]: if this is held out as child porn invitation to illegal activity is NOT Protected Protect Act - makes illegal to hold out porn as child porn

Outcome: Protect Act Stands: Distributor holding out depiction that they know someone will think porn is real children unprotected o o Rationale this will hurt the kids that are used in the making Disclaimer gets person off the hook
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New york v. Ferber 1982 {child porn is against 1 amdt b/c children are harmed in the making} Films of young boys masturbating. Salesman arrested under statute that prohibits sales/production/ promotion/exhibition of any material depicting a sexual performance by a child under the age of 16) Unanimous: Pornographic depiction of children unprotected o o Child porn = high state interest + extremely low value (de minimis) speech States interest in safeguarding well-being of kiddos is HIGH; distribution of this material is closely related to abuse of juveniles Concur: o Some depictions of kids may have social value, but the test acknowledges that by the value would be higher and state interest in suppressing valuable speech is lower (b/c harm to child is likely less)

Ashcroft v. The Free Speech Coalition 2002 [strikes down statute limiting virtual child porn as not presenting sufficient govt. interest and contrary to ferbers focus on harmful production/not content+ Fed statute ban any pornography that involves images that appear to depict minors, but were in fact produced without real children State Rationales of 1) encouraging crime and 2) making crime difficult to prosecute have been rejected as reasons to encumber speech o Vs. Ferber harm flows from content of speech vs. the making of it., Ferber did not stand for limitations on content o CAA applies beyond Miller Requirements -- b/c it regulates content, it must comport with Miller United States v. Williams [PROTECT ACT upheld individuals holding out child porn as real unprotected]

Protect Act making it a crime for any person to knowingly advertise promeote/distributeany material in a manner that reflects/causes another to believe that the material contains a visual depiction of an actual minor engaging in sexually explicit conduct defined conduct in a manner as Ferber

Rule: Offers to provide or requests to obtain child pornography are categorically excluded from 1 Amdt. Protection. o o Speech that solicits criminal activity has never been protected Advocacy of child pornography is still permitted vs. offers to give or receive contraband.

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Dissent: o o There is no crime here the speech at the end of the transaction is privileged Speech is privileged, acts as a bulwark against govt punishing solicitation

Lewd/Profane/Indecent

Cohen v. California 1971 (Fuck the Draft jacket; Court strikes conviction Man wearing offensive jacket outside of courthouse in sight of women &children (gasp!) ; did not engage or threaten to engage in; nor did anyone as a result of his conduct engage in no violence. Man protesting Vietnam War/Draft . o Contra: arrest for destroying draft card (illegal/arrest worthy) violated different law

Issue: Is offensive jacket a breach of the peace b/c it exposed unwilling adults and children to offensive speech against their will? Reversed: Cohen wins. o Four letter workd was not addressed specifically to anyone* (contra chaplinsky) or incite a group to a hostile reaction (contra Feiner) o Public Situation: Difference b/t efforts to limit intrusions into the sanctuary of ones home and public situations where one is captive to objectionable speech in public

Test: o o Is this protected speech? Under Miller test: this is protected speech b/c of political content? What is level of scrutiny and what is govt interest? Level of scrutiny: clearly political speech in clearly political environment high value o o Are these fighting words directed at someone specificially (Chaplinsky)? NO Are these words not aimed at incting a right (Feiner)? No

1) CA cannot punish just this word b/c it is likely to cause a violent reaction undiffereintated fear is not sufficient and 2) Cal cannot remove offensive word from public discourse o Freedom of speech will naturally lead to a cacophony

Cannot cleans public debate so that it is palatable b/c there is no ascertainable general principle that would rule out vulgarity style is a personal choice

Linguistic expression is communicative and emotive limiting words would undermine emotive freedom

Runs risk of police using word suppression to suppress ideas selectively

Why could man wear this? Why could son not wear this? o o o School is more of a captive audience. School involves minors . *Main issue jacket will be disruptive of educational mission, school may always suppress something that disruptive of school mission. distraction element justifies suppression. o * in actual courtroom -- issue is distraction

Outcome: Court is driving non-content based reason for suppression look for other reasons
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Erzonik v. Jacksonville (1975) {drivein movie theatre nudity statute violates 1 amdt; reversed] Statute staes that drive in movie theatres must not show movies involving nudity which are viewable by the non-audience public (i.e. motorists driving by) Holding: unconstitutional restriction on content b/c overbroad court cannot privilege one type of content over another, i.e. single out nudity over violence/action. o Explain miller Miller cannot create itself in a way that certain images can just be screened out . No community has ability to keep all pornography out of every corner out of every town. Outcome: Communities cannot make themselves immune from culture o o 1) shutdown theatre all together 2) find way that screen angled so offensive scenes are not seen by anyone who does not want to see them. *Communities can also NOT completely zone out dancing

FCC v. Pacifica foundatioin (1978) *Carlins filthy words monologue; nature of media control + kids interest = constitutional limitation] FCC requested that patently offensive speech be channeled to times that children are not likely to be in the audience. [man traveling in car with son and hears monologue and writes letter] FCC Argument: Radio provides a captive audience? Pacifica Argument: pacifica issues warning at beginning of program o FCC argues that disclaimer is not particularly effective if they miss it

Issue: timing of speech makes it available to children/others who may not want to hear it.

Upheld Why? Nature of broadcast media (involuntary element of receipt) and exposure to children (kids can be protected from unsolicited assaults) allow for some channeling/curtailing of speech to certain times of the day o o o FCC regulates this material all the time - -within there agency purview to do this. Order is limited to pacifica Contra: Television offers more control; vs Radio that has traditionally not offered as much individual control

Hypo: sesame street web site hack o Person has 1 amdt right Pacifica arguments
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CDA v. ACLU (1997) Court struck down two aspects of Communications Decency act which prohibited any person from making Indecent communications over the internet knowing that the recipient is under 18 years of age or describing/depicting in patently officensive ways by contemporary or community standards o CDAs broad categorical prohibitiosn are not limited to particular times and are no dependent on any evaluateion by an agency familiar with unique characteristics of internet o o Pacifica not punitive CDA too ambiguous not narrowly tailored to goal of protecting minors from potentially harmful materiasls Lack of precision = fatal Failure to use least restrictive means available to achieve goal

CDA Ashcroft v. ACLU (2004) (OPA designed to address constitutioan defects in CDA Upheld injunction on COPA on the grounds that the means in statute (providing credit card/id number/ age verification digital certificate/other means) were still not the least restrictive means o o Zoning Cases Young v. American Mini-Theatre 1976 Concept of content-neutral restriction based on secondary effects of content allows zoning ordinance limiting locaton of adult theatres to outside of 500 ft of other adult establishments. o Adult businesses cause an uptake in crime legitimate interest of state is to cut down on this o Ordinance based on this is not subject ot least restrictive means, but only to reasonable ness of regulation City of renton v. Playtime Theatres (1986) Discussed option of filtering software as better option

Zoning law- prohibits location of adult est. near schools/residential areas/churches/etc. only 5% or real estate left available Regulation enacted for the purpose of restraining speech based on content (presumptively violate 1 Amendment) vs. totally content-neutral time/place/manner regulations (legitimate if substantial government interest + do not unreasonably limit alternative avenues of communication) vs. Renton ordinance majority analyzes as content-neutral, satisfies test Dissent: this is content-based, should be narrowly tailored
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City of LA v. alameda Books 2002 Study shows that concentrations of adult entertainment establishments correlate with higher crime rates -- > passes ordinance limiting location of adult est. Alameda has two businesses operating in same building. Upheld on content-neutral Renton grounds Dissent this is obvious content-based discrimination - content correlated

Hate Speech RAV v. City of St. Paul 1992 Kid burns cross on lawn of AA family across the street o City has Anti-Bias Speech Statute: Whoever places on public or private property, a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor. Issue: Petitioner moved to dismiss the count under the Bias-Motivated Crime Ordinance on the ground that it was substantially overbroad and impermissibly content based, and therefore facially invalid under the First Amendment.[2] Minnesota Supreme Court reversed, rejecting petitioners overbreadth claim because, as the Minnesota Court had construed the Ordinance in prior cases, the phrase "arouses anger, alarm or resentment in others" limited the reach of the ordinance to conduct that amounted to fighting words under the Chaplinsky v. New Hampshire decision.[3] The Minnesota Court also concluded that the ordinance was not impermissibly content based because "the ordinance is a narrowly tailored means towards accomplishing the compelling governmental interest in protecting the community against bias-motivated threats to public safety and order." Just because some categories of speech may be unprotected by First Amendment does not mean that a a city can discriminate within those categories:

areas of speech "can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.) not that they are categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination."[13] Thus, as one of the first of a number of illustrations that Justice Scalia would use throughout the opinion, the government may "proscribe libel, but it may not make the further content discrimination of proscribing only libel critical of the government."[14] The Court recognized that while a particular instance of speech can be proscribed on the basis of one feature, the Constitution may prohibit proscribing it on the basis of another feature.[15]

The Court recognized two final principles of free speech jurisprudence, first, that when "the entire basis for the content discrimination consists entirely of the very reason the entire class of speech is proscribable, no significant danger of idea of viewpoint discrimination exists."

Second, the Court wrote that a valid basis for according different treatment to a content-defined subclass of proscribable speech is that the subclass "happens to be associated with particular 'secondary effects' of the speech, so that 'the regulation is justified without reference to the content of the speech'"[19] As an example, the Court wrote that a State could permit all obscene live performances except those involving minors.[20]

Holding: The St. Paul Bias-Motivated Crime Ordinance was struck down both because it was overbroad, proscribing both "fighting words" and protected speech, and because the regulation was "content-based," proscribing only activities which conveyed messages concerning particular topics. Judgment of the Supreme Court of Minnesota reversed.

Virginia v. Black Guys burn KKK cross in meeting vs. three that that burn cross on a neighbors lawn Virginia's statute against cross burning is unconstitutional, but cross burning done with an attempt to intimidate can be limited because such expression has a long and pernicious history as a signal of impending violence. Justice Sandra Day O'Connor delivered the opinion stating, "a state, consistent with the First Amendment, may ban cross burning carried out with the attempt to intimidate."

True Threat Rule: New area of constitutionally unprotected speech for "true threats." Under that carve-out, "a State may choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm."

The Court did, however, strike down the provision in Virginia's statute which stated "Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons," holding that the provision was facially unconstitutional because of its "indiscriminate coverage." The state, therefore, must prove intent to intimidate.

Economic Due Process

for Tues. Due Process INtrol

12/18/2011 12:52:00 PM

Con Law classes this coming week are Tues (12/6); Wed (12/7); and Thu (12/8). We are doing pp 735-44, 749-58

Pue process and substantive are contradictory/irreconcilable, but long line of cases now exist. Substantive Due Process o o o Rights in constitution that are not specficially illuminated Economic = right to contract freely Privacy

Where does court find authority for rights NOT in Constitution o o Founders concern that enumerating rights will LIMIT Them 9 & 10 Amdt catch alls that includes rights for which there is broad acknowledgment and acceptance
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Economic Substantive Due Process: Constitutional Limits: o o o 5 /14 no person shall be deprived of property w/o due process of law no law impairing contracts 5 amdt proect private property from being atken for public use w/o compensation Strict Scrutiny in Lochner Rationality Review in Nebbia/ Lee Optical *Court senses that it will not be able to contribute to solution institutional competence Lee Optical: Court gives up on trying to prevent rent-seeking going to completely stay out of this o Court abandons economic substantive due process
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Trajectory: o o

Economic vs. Privacy Substantive Due Process: Court is more Firmly Rooted in Privacy background b/c they think there is a much more easily located right. o o Pre-Lochner : Prevailing View: Economic Due Process is procedural in nature Slaughterhouse case: LA statute did not violate PIC of 13 , but also did not violate DPC of 14 . Retraint on exercise of butchers (forced outside of city limits) was not a deprivation of property w/in meaning of DPC unclear DPC growing from procedural guarantee to substantive guarantee
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When does govt have capacity to block contraception? When does govt have and how does it have capacity to block abortion?

Background: Industrial accumulation of wealth/ property in corporations prompted regulation in turn prompted push back from corporations that claimed that fundamental rights of property were not being respected by state legislature

Railroad Commission Cases (1886): court sustatined state regulation of railroad rates, but emphasized limit to judicial deference: power to regulate is not the power to destroy cannot force railroads to ferry people or goods without recompense or reward (equates to taking without compensation)

Santa Clare v. Souther Pacific: court held that corporations were persons within the meaning of the due process clause of the 14 Amdt opened door to direct challenges to regulations by corps. Allgeyer v. LA 1897 invalideade a state statute that prohibited any person from issuing insurance in state if it was not licensed to do business in state o Liberty of contract -= allows persons to make contract, especially when the performance of which will occur outside the states jurisdiction; part and parcel of freedom to follow vocation and conduct business
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Lochner v. New York: 1905 [Scotus overrules NY reg limiting hours of bakers; right to contract => strict scrutiny] Held: DPC of 5 /14 protect liberty of contract and private property against putatively unwarranted govt. interference (statute that limited the amount of hours a person could work in a bread factory to 60 hours/wk, or no more than 10 hrs/day) Issue: Is this limitation on Right to sell labor protected by DPC a fair, reasonable and appropriate exercise of State Police Powers (health, safety, morals and general welfare): o o o Holden v. Hardy (Utah mineworkers) limitation to 8 hr day justified on safety grounds Limit to police power, otherwise 14 amdt is useless What is state interest: Workers inhaling particulates Govt puts time restriction
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Majority: Because the law is not at all justified on health grounds, and there is no evidence that bakers are vulnerable/wards of the state no justification for imposing this limitation on right to contract them alone. o Balancing Majority Test: gives short shrift to safety concerns Safety of public is not improved by more rested bakers. Lochner Test: Act must have direct relationship to safety, and then ends must be appropriate and legitimate before there is an imposition on person of power to contract. Regulated employment must present a material danger to the public health or health of employees if hours are not curtailed o Could inspections serve the same purpose?
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Where does majority locate right in constitution? Right to property (4 amdt) + DPC right to contract that requires little deference to legislatures

Harlan/white/day -Dissent: this is political decision -> not courts decision o Court should defer to state on matters of economics -- Unless clearly unconstitutional, court should deference. o Statute bears a substantial relation between the means employed by the state (limiting work hours) and the end sought to be accomplished by the legislation (healthier bakers) Evidence of bakers ailments

Holmes; Case is decided on economic/political theory that has not been embraced by national majority; Court majority should not use this as a bully pulpit for their opinions Summary: o Majority: individual right to contract trumps traditional deference to state in regulation Right to contract => Strict Scrutiny Court is reevaluating data and second-guessing court was not persuaded and so says : Unconstituional o Kid Hypo: If there is evidence of Very Dangerous Occupation (a la mining) state can act Adults can choose to contract in most conditions; kids may not have the same agency

Lochner Era; 1905-1934/mid 50s: No real standard - Supra-majority problem: Becomes apparent that court is merely second-guessing legislature, no clear standard. o If court works through cases and cant find standard court will abandon theory.

Maximum Hours legislation o Muller v. Oregon 1908 - cut upheld maximum hours limitation on women b/c of unique physical qualities o Bunting v. Oregon court upheld maximum hours legislation for both sexes, but retained lochner

Minimum wage regulation: o Adkins v. Childrens Hospital state that women would not have any more restriction on freedom to contract than men struck legislation

Abandons Lochner: Nebbia v. NY 1934 [milk rate setting; Ct upholds rate setting law; effectively walks back from Lochner] Price of milk dropped state was concerned about adherence to safety protocols, Milk was particularly susceptible to price instability. Milk board fixed rates. Nebbia was convicted of selling below those rates. o State interest: propping up industry for purpose of serving

Holding: Contract rights nor property rights are absolute (no strict scrutiny) , govt cannot exist if the citizen may at will use his property to the detriment of his fellows* (what does this mean) *Individual freedom v. state interest: private right must yield to public need Rule: *Rationality Review for Economic Legislation : 14 /5 DPC allow govt. regulation for public welfare o o o law cannot be Arb/Cap.- analyzed like every other regulation. Court does not have institutional State my adopt whatever economic policy may reasonably be deemed to promote public welfare and to enforce that pooicy by legislation adapted to its purpose
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West Coast Hotel Co. v. Parrish 1937[overrules Adkins; sets minimum wage for women] Legislature of state clearly entitle to enact this, consider situation of women in employment and the fact that they are receiving the least pay, have low bargaining power and ready victims Lower bargaining power is valid legislative consideration Legislative discretion ascendant.

U.S. v. Carolene Products Co. (1938) [filled milk Butter fat substituted with vegetable fat. FDA tried to regulate, but no traction b/c marketing/literacy. Concern is undernourishment. Filled Milk Act banned its shipment via interstate commerce. Issue: Filled Milk folks challenge the statutes language as wrong /inaccurate Holding: Court upholds federal statute Test : Arb/Capricious it does not matter if legislative facts are wrong, court is restricted to question of whether any state of facts either known or which could reasonably be assumed affords support for it. o Question is at least debatable Congress to decide

Williamson v. Lee Optical 1955 [opticians/rent-seeking statute upheld under Rationality Review] Rate-seeking legislation for Opthamologists/Optometrists required a prescription for an optician to make any new glasses or duplicate-> increased costs. Dist court held that requirement was not reasonable/rationally related to health welfare of people SCOTUS reverses. Law may be needless but it is for legislatures to decide: enough that there was an evil at hand for correction, and that legislature thought that this might be the best solution

Ferguson v. Skrupa (1963) [banned debt adjustors/

Skrupa former debt adjuster, put out of business SCOTUS upheld Test: deference to legislature up to them to decide: States have power to legislate against what they find to be injurious practices, so long as their laws do not run afoul of federal laws or some specific constitutional prohibition

Modern Sub. Due Process: Privacy/Personhood/Family12/18/2011 12:52:00 PM

855-98 for Wed & Thu.

Economic vs. Privacy Substantive Due Process: Court is more Firmly Rooted in Privacy background b/c they think there is a much more easily located right. Privacy: o o When does govt have capacity to block contraception? When does govt have and how does it have capacity to block abortion?

What is right of privacy? o Right to use contraception o Began with couples moved to individuals Not an individual right woman has right to consultation with doctor and decide to end pregnancy Law of abortion is not political starts out as medical opinion * Written in Mayo Clinic consulting doctors

Right to abortion

Where does court find right? Where does Definition of Person o Agreed b/t pro-Roe and anti-Roe person within meaning of 14 amdt does not include fetus o o Court agrees that definition of Life is not the appropriate realm of judiciary States interest is limited to interest in the fetus
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I. Right of Privacy:

Griswold v. CT 1965 (birth control/married people; Ct strikes statute on privacy) Parties: head of PP in CT & Yale Medical School MD who had give contraception advice to married persons. Convicted as accessories under CT criminal law prohibits any person from using durg/medicine/instrument for contraception. Parties found guilty as accessories Background : just assumed that this was a generally held favorable moral opinion. Issue: Is statute limiting access to contraception for married couple a violation of the 14 Amdt Sub. DPC? o Privacy Case & Family Case
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Holding: Statute limiting contraception as between married persons is unconstitutional by virtue of DPC.

Reasoning Where do we locate right? Where in constitution is there any discussion of marriage/sex/contraception? o Constitutional Options: 1) right of association 1 amdt; 2) 3 amdt no quartering of soldiers in the home; 4 amdt unreasonable search/seizure concept of home as inviolate 3) Catch all language of 9 amdt 4) 5 amdt DPC clause no deprivation of life/liberty/property autonomy of individuals from govt o 5) 14 amdt life liberty property/ due process clause/P & I 6) Totality of Constitution
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NO precedent on target

Holding: o o Reject resurrecting Lochner to have court sit as super legislature or wisdom of legislation 1 Amdt interpreted to include a number of rights not specifically enumerated (right to associate, send kids to schoo of choice (Pierce v Society of sisters/Meyer v. Nebraska (limiting languages taught in school to only English) 1 amdt penumbra where privacy is protected from govt. -> protectd forms of association that are not political but social/legal/economic o Where is right found? Penumbra of all rights read together: Bill of rights has penumbras , formed by emanations from those guarantees that help give them (explicit rights) form and substance Fundamental relationship b/t govt and people Various guarantees create zones of privacy (1 amdt right of association; 4 amdt right to be secure in home/effects; 5 amdt protection against self incrimination; 9 amdt constitution shall not be interpreted to constsrain other rights of people: mapp v. ohio right of privacy no less important than others) o WHAT is right?: right of two married people to receive contraception, via doctor, that has been approved for this couple. *From beginning: Right is freighted very narrow right: freighted by cost, availability in the U.S., approval by MD Law targets relationship (married people) that exist within constitutionally defined zone of privacy, and exacts maximum destructioin of that relationship as its means does not target manufacturers/sales
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*Sweeps unnecessarily broadly into consititutionaly protected zone i.e. not the least restrictive means for achieving goal

right of privacy (i.e. in marriage) =older than the bill of rights *Married couple has right to discuss this with doctors not INDIVIDUALs right to make decisions free of consultation
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Concur: Goldberg/ Chief/Brennan Resurrect 9 amdt (constitution shall not be read to limit rights not listed) o Ninth is not implied via 14 amdt to the states, rather it informs what the 5 and 14 understand to be liberty o 9 amdt constitution will not be read to limit rights not enumerated (framers explicitly preserves rights not mentioned) o What is 9 amdt fundamental rights test/what is limit?: whether a right is of such a character that it cannot be denied without violating those fundamental principles of liberty/justice that lie at the base of our political institutions, AKA rights that are so obvious that you would not think of including them o Look at traditions Rights to marriage and marital privacy fundamental Limit no frivolous rights
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State interest in preventing extra-marital relations does not trump maritalprivacy state interest can be served by more tailored statute

Why does he agree with Majority ? joins in emanations so he can create a binding judgment to guarantee liberty
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Harlan concur in judgment (not joining majority): 14 Amdt Substantive DPC wins the day ultimately* o DPC of 14 Amdt protects values implicit in ordered liberty statute violates DPC no need for penumbras/emanations o Admits that some clauses are more malleable than others, namely DPC judges use to keep constitution In tune o o Judges have not roamed completely freely, however tradition is a living thing DPC does not just stop at judgment of rule, bt looks at process for state enforcing its moral judgment Statue allows state to proceed with criminial investigation into married life/home Aspet of liberty which embraces home requires (3 & 4 amdt) requires strict scrutiny. State does not offerjustification for obnoxious means
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Majority/Concurrence Court is enlarging its power with Griswold, claiming mantle of interpreters of living constitution. DISSENT: Black/Stewar o o This right is nowhere listed in constitution How do they deal with 9 Amdt? Dissent is offended by court acting illegitimately and trolling around look for new rights. Bad public policy leave to legislature Fix via legislature! We should not undermine our own legitimacy by making it up. Dissent *Recurring thread that courts action here is illegitimate
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Transition: Griswold is expanded. Court determines that Griswold right is applicable to individual adults Doctors can be protected for providing contraception to adults (married or individual Outcome: o o State law banning contraception fall. State law limiting availability of types of contraception and marketplace OK.

Issue: how far does right extend? o Lawrence v. Texas: Substantive DPC/privacy forbids TX from telling anyone who is an adult that they cant engage in sodomy. o Griswold -------- Rv.W --------- Lawrene

Roe v. Wade 1973 Challenge to TX statute criminalizing abortion Issue: May state deny womens ability to get an abortion? History: o At common law and at constitutional times through the late 19 century women had broader right than 1973 (up until quickening o Reasons for abortion laws in late 19 century: Limit illicit sexual conduct Protect women from hazardous procedures *medical advancement has made this unnecessary
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States interest in protecting prenatal life

Where is right of privacy found? Court dodges it: notes that it can be found in 14 amdt DPC or 9 amdt fundamental rights or emanations there is a right, we dont have to name it today. o o Tax/cost/potential ill impact on women warrant privacy Same sphere of interests acknowledged in Pierce/eisenstadt/Griswold i.e. family life, whom to marry, when to have children, what values with which to raise children

WHAT is right? *Always important abortion must be medically approved woman has constitutional right to have abortion with consultation of doctor. o X> 1 tri- woman is free to get abortion w/o state interference, in consulstation with doctor pre-viability States only legitimate interest: health and life of mother Womans Freedom vs. States Interest (which must be health and life of mother*) states interest can never trump womans choice b/c abortion is minimal procedure o 2
nd st

What is okay? Medical licensing that promotes health/life of mother Womans right I ascendant

trimester: Post - first trimester, state can regulate so long as the regulation reasonably

relates to the preservation and protection of maternal health* States only legitimate interest: health/safety of mother o
rd

States interest increases as danger of procedure grows to mother

Ex. Licensing of abortion mds/facilities Doctor can deny abortion on medical grounds

3 Trimester: Based on potential human life Post-Viability state can proscribe abortion entiresly, except when it is necessary to preserve the life/health of the mother State has most ability to regulate States legitimate interest is in potential human life*

Most important concept: Viability is drawing line Medicine has changed something that is part of constitutional decision. Biggest challenge is understanding viability line. Hypo: What if science advances to point where Viabililty is availability at contraception? Medical seems stalling

Legal maybe viability is a legal problem, or use of trimesters (those attacking Roe v Wade have made both arguments)

State interest can limit right some limitation appropriate o Fetus is a person no definithin of person in Const.- but always used Post Natal context o Person in 14 amdt does not include unborn no conflicting rights
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Valid state interest in the following interests grows along with time of pregnancy 1) Health/safety of mother = previability 2) Potential human life = only arises POST viability*

Maher v. Roe 1977: state interference vs. state encouragement- encouragement okay

State Medicaid program funds childbirth for indigent women but not non-therapeutic abortion. Issue: Govt is targeting a constitutionally protected right and discouraging it. Holding: Withholding payment is constitutional, court will not compel govt to pay. EPC clause question: o o No discrimination against suspect class financial need alone does not create suspect class Roe Only limits state ability to prohibit womans right State may still make value judgments encouraging women to choose child-birth over abortion

Dissent: this is economic coercion b/c state has inhibited fundamental right to make this choice free from intereference burden on freedom of privacy a la Sherbert Example; U.S. soldier cannot acquire abortion on base; was denied leave to have abortion, despite willingness to pay for travel back home.

Harris v. McRae 1980 [Hyde Amdt upheld; Govt cannot place burden on abortion, but does not need to eliminate extra govt burdens to it Hyde Amdt women on medicare may not get funding for abortion unless their very life is in danger (affects interest of protecting health during pregnancy Holding: Hyde stands for reasoning of Maher o Govt may not burden right, but is not under obligation to remove those not of its own creation Dissent: Once govt has made promise to provide healthcare, it cannot then maeke a moral decision in the provision of that healthcare. May not create exceptions for sole purpose of furthering a govt interest that is constitutionally subordinate to the individual interest the entire program was designed to protect.

Planned Parenthood v. Casey 1992 [undue burden Background: Casey had the goal of overruling Roe v. Wade; Pennsylvania passes a slew of laws aiming to curtail abortion right pre-viability When will court overrule itself?: FACTORS We cannot overrule based on these factors o o Central Rule is unworkable (ex. Gerrymandering) Reliance: The rules limitation on state power could be removed without serious inequity to those who have relied upon it (ex. Miranda Rule) o o Evolution of Legal Principle forecloses Changed Facts lead to reinterpretation of constitution

*Unlike Lochner/Plessy v. Ferguson there are NO changed facts here that are similar: separate but equal was factually impossible by the time of Brown If viability became coincident with conception that would be a changed fact on this issue

But court still has problem b/c Viability is not matching up to Trimester system change comes to Viability Dividing Line Likely Level of Scrutiny/Standard is Undue Burden: o Pre-viability: Government cannot put an OBSTACLE in the way of the final exercise of the right? NO o o o Govt. CAN set up mechanisms by which govt may express is profound respect for life. Can state force informed consent; look at pictures (of live and aborted fetuses); - YES What is undue burden? o Cannot force minors to tell parents without judicial bypass option Cannot force woman to tell husband/get permission Cannot force women to take test after reviewing materials Waitng period of 3 days -- > most likely too long

Undue Burden NOT Strict Scrutiny or Rationality Review, but gives state wide latitude

Possibility: o o Will undue burden analysis be grafted onto contraception? Ex. Conscious Clause exception for pharmacist who does not want to give married couple contraception o Free Exercise Fight v. Privacy (Griswold Fight)

Maher govt is not responsible for market forces that burden the right (like de jure segregation vs. de facto segregation govt only responsible for correct de jure)

Carhart v. Gonzales 2007 [late term abortion; states interest in fetus vs. health/life of mother drops out as trump factor post-viabilit] Pre Carhart: the health/life of mother (&right to abortion) would always TRUMP states interest in human life. o Very narrow life exception must be necessary much narrower standard than we had seen before Issue: Does woman have constitutional right TO LIVE can govt deny a type of late term abortion, when that is the only (or best) means of saving your life? Holding: Govt can take this type of abortion off the table b/c it is not an undue burden. o Alternative Manner is available although not ideal.

Legislature/Court find that there is medical uncertainty, with respect to facial challenge, the law stands State can generally ban third term abortions performed this way. Potential due process challenge right to life for woman whose life is threatened by denial of abortion

Court preserves option of as applied challenge (Doctor could challenge criminal penalty)

What is right NOW? o Court does not overrule the importance of health/life of mother, but it brings into question the Robustness of that right/interest.

Levels of Scrutiny o o Contraception: intermediate +/Strict Abortion: undue burden (not a level of scrutiny) does the obstacle identified place an undue burden?

TAKEAWAY: this case is making the privacy right look illegitimate & unworkable. right is very weak & somewhat confused. Next case: women who needs 3 term abortion to save life
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RFRA/RLUPA Review
What can be salvaged from RFRA? Once it is struck down, Congress looks at what can be controlled? RLUPA o o Documentary: Gives story more effectively Land Use Prisons all institutionalized persons in the state

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Art is protected form of speech (how different media operate to forward free speech) Pay Attention: o Congress does not deal with land use fed. Gov. got involved with something that they should not have gotten involved with. o If you have statute setting standard of review (strict scrutiny) look at how it changes how people talk.

Could Congress determine level of scrutiny in any particular case? o o *cAn we force courts to look at Affirmative Action with Low level scrutiny? Changes relationships between people &

RLUPA Land Use documentary about Land Use side What happens when all the constituencies in universe are impacted by federal statute? o o Prison/Institutionalized Persons Usually just Plaintiff vs. Warden (goes through court very quickly) Everyone in community is impacted by Land Use. Ex. If school is turned into theatre lots of interest of community are impacted

Documentary speech that is protected, graphic arts/movies/fiction

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