CONSTITUTIONAL LAW II BAR/BRI REVIEW OVERALL OUTLINE: I. Federal Judicial Power II. Federal Legislative Power III. Federal Executive Power IV. Federalism V. Cons Consti titu tuti tion onss Pro Prote tect ctio ion n of Indi Indivi vidu dual al Lib Liber erti ties es V I. Due Process VII. Equal Pr Protection VIII. Freedom of Speech V. THE TH E STR STRUC UCTU TURE RE OF TH THE E CON CONSTI STITU TUTI TION ON’S ’S PROT PROTEC ECTIO TION N OF OF IND INDIVI IVIDU DUAL AL LIBERTIES Is There Government Action? A.
(1) The Constitution applies only to the government; Private conduct does not have to comply with the the constitution. Applies to government at all levels of government go vernment (federal, state and local) • Applies to acts of government officers at all levels (federal, state and local) • Freedom of speech means that the government cannot tell you what you can and cannot do. • “State-Action” Doctrine is a misnomer •
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(2) Congress by Statue Statue May Apply Constitutional Norms To Private Conduct If a private co. discriminates based on race, EP is inapplicable Congress can adopt statutes prohibiting rac a. Purs Pursua uant nt to the the 13 13th Amendment, Congress can prohibit private race discrimination. 13th Am prohibits slavery. People cannot be or own slaves o Section 2 authorizes Congress to adopt laws to enforce it. o b. Pursuant Pursuant to the Commerce Commerce clause, clause, Congress Congress can apply apply constitutio constitutional nal norms to private private conduct conduct c. Purs Pursuan uantt to Sec Secti tion on 5 of of the the 14th Amendment, Congress cannot regulate private behavior
(3) Exceptions: a. Publ Public ic Func Functi tion onss Exce Except ptio ion n -If a private entity is performing a task that has been traditionally/exclusively done by the o government, the Constitution applies o -Running a town is okay o -“white Primary cases”: TX refused to allow AAs to vote. Violated Constitution even though political parties were private private entities. Holding an election was traditionally/exclusively traditionally/exclusively done by the local government - Jackson Jackson v. Metro Edison: Edison: Utility co. terminating terminating customer service (private). (private). Already est that o before govn’t owned utility co. cuts off service, must provide due process. Customer argued private utility should do same b/c of monopoly. Supre. Ct.: Running a utility is not a task that has been traditionally/exclusively done by govn’t b. b. Enta Entangl nglem ement ent Exce Except ptio ion n 1
If the govn’t affirmatively authorizes, encourages or facilitates unconstitutional conduct, the constitution applies. o Problem: The cases don’t fit neatly together. Many inconsistencies that Sup Sup Ct never reconciles. o Be familiar with leading cases: 1) Shelly v. Kramer : “Courts cannot enforce racially racially restrictive restrictive covenants.” Racially-restrictive Racially-restrictive covenant is a contract between members of a neighborhood that they wouldn’t sell homes to Blacks or Jews. For this to be allowed 2) Burton 2) Burton v. Wilmington Parking Authority: “There IS state action when the government leases premises to a restaurant that racially discriminates.” 3) Norwood v. Harrison: Harrison: “There IS state action when the government gives free books to private schools scho ols that racially discriminate.” 4) Randall 4) Randall Baker v. County: “There is NO state action when a private school that was over 99% funded by the government fired a teacher because of her speech.” 5) NCAA 5) NCAA v. Tarkanian: “There was NO state action when the NCAA ordered the suspension of a basketball coach at a state university.” -Pattern: when race involved, seems Supreme Court does apply the Entanglement Exception o
6) Brentwood 6) Brentwood Academy v. TN Athletic Ass’n: “There IS state action when a private entity regulates interscholastic sports within a state.” 7) Mooslodge v.: “There is NO state action when a private club with a liquor license in the state racially discriminates.” A.
The Application of the Bill of Rights
(1) The Bill of Rights Applies Directly Only to the Federal Government. (2) The Bill of Rights is Applied to State and Local Governments Through its Incorporation of The Due Process Clause of the 14th Amendment B. Provisions that Have Ne Provisions that have never been deemed to apply to State and Local Governments: a. 2nd Amendment Right to Bear Arms b. 3rd Amendment Right to not Have a Soldier in a Person’s Home c. 5th Amendment Right to Grand Jury indictment in Criminal Cases -before a person can be tried in Federal court, must have GJ indictment but state doesn’t have to grant this d. 7th Amendment right to jury trial in Civil Cases. e. 8th Amendment right against excessive fines. C.
The Levels of Scrutiny
Three Levels: (1) Rational Basis Test: A law is upheld if it is rationally related to a legitimate government purpose. -The government’s objective need only be some conceivable purpose and the means chosen just has to be a reasonable/rational way to achieve the end. -tremendously deferential to the government -government usually wins under RB review -the challenger has the burden of proof. -in order for a law to be struck down, challenger must prove either that there is no
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important government purpose. (2) Intermediate Scrutiny: Scrutiny: A law is upheld if if it is substantially is substantially related to an important government -The government’s objective is more than legitimate. -Court’s will look only to the government’s actual objective. Conceivable purpose isn’t good enough. -Means chosen has to be substantially related to achieve end: Doesn’t have to be least restrictive or narrowly tailored. -Doesn’t have to be the best or o r least restrictive. -Government has the burden of proof. (3) Strict Scrutiny: A law will be upheld if it is necessary to achieve a compelling government purpose. -The government’s objective must be more than legitimate or important. -Ct has to believe that government’s objective is vital/compelling. -Means must be necessary to obtaining the objective -Least restrictive alternative analysis: No less discriminatory alternative alternative can achieve the objective. -Most exacting type of review: govn’t must have co mpelling purpose. Ct will look at goven’t actual objective. -Govn’t usually loses and Govn’t has the burden of proof. VI. DUE PROCESS Procedural Due Process A. -refers to the procedures a government must follow before it can take away a person’s life, liberty, and property
(1) Has there been a deprivation of life, liberty or property? a. Definitions: 1) Deprivation of liberty occurs if there is the loss of a significant freedom provided by the Constitution or a Statute. -i.e., it’s the written/positive law (constitution and statutes) that create liberty interests. -less obvious examples of liberty interests -except in an emergency, before an adult can be civilly committed, there must be notice and a hearing (institutionalizing someone is -when a parent institutionalizes a child, there need only be a screening by a mutual factfinder. Assumes parents act in the best interests of the children ev en if they institutionalize their child. -harm to reputation by itself is not a loss of liberty. Paul v. Davis (1976): (1976): Louisville KY had practice of posting pictures…only if a person can prove a tangible, economic loss, then amounts to loss of liberty -prisoners rarely have liberty interests. 2) Deprivation of property occurs if a person has an entitlement and that entitlement is not fulfilled. -Prior to late 1960s Sup Ct. drew distinction between rights and liberties -No DP if right taken away, only DP if liberty taken away -New magic word: “Entitlement” -“Entitlement” exists if a person has a reasonable expectation to continued receipt of a benefit. b enefit. -Two Examples: -a person works for govn’t and promised job for next year. In middle of year, person gets fired and sues that govn’t should have provided DP. Yes. Person had reasonable expectation that DP would be provided Roth v. Board of Regents: Roth worked for U. Wisc on year-to-year K w/c said Roth should have no - Roth expectation to be renewed. Sued for DP on renewal. Govn’t not required to give Roth DP. DP. Though rights taken away, no entitlement… b. Government Negligence is Insufficient to State a Claim under Due Process -to have a claim under DP D P there has to be an intentional or at least a reckless government act. 3
Daniels v. Williams: Prisoner slipped on a pillow negligently left on a prison step. Sued that…Govn’e - Daniels negligence isn’t enough, requires an intention or at least a reckless govn’t act. -In emergency situations, government is liable only if officer’s conduct “shocks the con duct” -Sacramento County: County: High speed chase killing 16 year year old boy. DP violation of boy’s life. life. Must show officers officers acted with intent to c. Generally the Government has no duty to protect people from privately inflicted harms DeShane v. Winnebego: Winnebego: Joshua Deshaney suffered - DeShane suffered irreversible brain damage from his father. Govn’t had no duty to protect Josh from his father. Only if govn’t literally creates creates the danger does the govn’t have duty to provide protection **Only if (1) is found, need you go to (2)** (2) What procedures are required? a. Test -Matthews v. Eldridge: Eldridge: 3-part balancing test used by Supreme Court 1) The importance of the interest to the individual -the more important the interest, the more in the way of procedural 2) The ability of additional procedures to increase the accuracy of the factfinding -The more the court believes that additional ad ditional procedures will lead to better, more accurate decisions, the more likely it is that a court will require them. 3) The government’s interest in administrative efficiency. -The court looks to the govnt’s interest. The more expensive the additional procedures will be, less likely likely court will require them. **With 3-part test, courts have a lot of discretion** d iscretion** b. Examples: 1) Before welfare benefits can be terminated, there must be notice and a hearing [before they are cut off] -Goldberg v. 2) When Social Security Disability benefits that are terminated, there need only be post-termination hearing. -Matthews v. Eldridge 3) When a student is disciplined by a public school there must be notice of the charges and an opportunity to explain. But, there doesn’ thave to be a trial-type hearing. 4) Before a parent’s right to custody of a child can be permanently terminated, there must be notice and a hearing. 5) Punitive damage awards require instructions to the jury and judicial review to ensure reasonableness. 6) Except in exigent circumstances, pre-judgment attachment or government seizure of assets must be preceded by notice and a hearing. -If the govn’t through its courts attaches or seizes someone’s property, the ability of a person to use or sell property is taken away…that’s why notice precedes. -“Exigent” if there is reason to believe person wou ld get rid of property before notice and a hearing. -One qualification: Due Process does not require an innocent owner defense to government seizure. - Bennis Bennis v. Michigan: Michigan: **If no deprivation, analysis stops. If there is deprivation, deprivation, do three-part test.** B.
SUBSTANTIVE DUE PROCESS
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(1) Definition: Whether the Government has an adeq uate for taking away a person’s life liberty or property. Whether there is sufficient substantive justification (a government’s reason) (2) The Constitution provides only minimal protection for economic liberties. a. Only a Rational Basis test is used for laws affecting econ omic rights -1st 3rd of 20th C: Lochner era. Supreme Ct: “Freedom of contract was a fundamental right and laws that interfered with such had to meed strict scrutiny.” -Since 1937, Sup Ct: “Only rational basis review removes government regulation to an economic right???” b. Takings Clause -found in 5th Amendment: Government may take private property for public use but it must pay just compensation. -Know: 1) Is there a taking? -Two alternative ways of finding a taking: -Possessory Taking: Govn’t confiscation confiscation or physical occupation of property is ALWAYS a taking!!! It doesn’t matter how small the amount of property involved is. -Regulatory Taking: Govn’t regulation is a taking if it leaves no reasonable economically viable use of the property. Important to remember that regulation is NOT a taking simply b/c it decreases the the value of a person’s property. investment, still left economically economically viable Penn Central v. NYC : “Even govn’t decreased value of investment, alternative.” Lucas v. South Carolina: “Since govn’t is preventing ANY economically viable use..taking.” d evelopment of property must be justified by a benefit that is roughly Know: Government conditions on the development proportionate to the burden imposed. Dolan v. City of Tigard : “Conditions are NOT a taking so long as justified by a benefit…” Know: A property owner may bring a takings challenge even as to regulations that were in place at the time the property is acquired. Mezollah v. Rhode Island: “ Know: Temporarily denying an owner of use of property is NOT a taking so long as government’s action is reasonable. Is a 32-month delay in development a taking? No. government had acted reasonably If there is either a posessory or a regulatory taking, go to: 2) Is it for public use? -Government may take private property if it’s for for public use. If not, govn’t must give property back. -Sup Ct. has broadly defined public use so that government will almost always prevail. -“Taking is for public use so long as the government acts out of a reasonable belief that the taking will benefit the public.” Hawaii v. Midkiff 3) Is just compensation paid? -Government may take private property for public use but must pay for it. -Just compensation is determined based upon the loss to the owner (in reasonable market value terms); the gain to the taker is irrelevant. c. Contracts Clause -Found in Article I Section 10 of constitution -“NO state shall impair the obligations of contracts.” -Know: 5
1) The Contract Clause applies only to state or local interference with already existing contracts. interfering with already existing contracts. Can just be sued doesn’t apply to the fed govn’t even if it is interfering under DP for RB review “Already existing contracts”…can’t regulate terms of future contracts that have yet to be made and entered into. 2) State and local govn’ts may interfere with private contracts if intermediate scrutiny is met (actually, test phrased by supreme court is a little different) Substantial Impairment of K rights Na rrowly tailored to achieve a legitimate and important government Govn’t action must be “Reasonably and Narrowly purpose.” (Has characteristics of both RB and Intermediate Scrutiny tests) 3) State or local Govn’t may interfere with existing GOVERNMENT Ks only if Strict Scrutiny is met. (3) Privacy is Fundamental Right Protected Under Substantive Due Process -Early 20th C, “Privacy is safeguarded under liberty under liberty of DP.” -Strict Scrutiny used when govn’t interferes with privacy rights. -Reality a. The Right to Marry is Fundamental Right b. The Right to Procreate is Fundamental Right -e.g.: Involuntary sterilization by govn’t must meet strict scrutiny c. The Right to Custody of One’s Children -govn’t can permanently terminate parental custody only if it proves compelling interest (neglect, abuse) -a state may create an irrebuttable presumption that a married woman’s husband is the father of her ch ild. -Michael H. v. Gerald D. d. The Right to Keep the Family Together -includes more than just parents and children; includes the extended family -Moore v. City of East Cleveland -in order to be considered “Family” individuals must be related to one another. Terre: limited # of unrelated people who could live together. -Village of Belle Terre: e. Right of Parents to Control the upbringing of their children -to choose to send their kids to parochial p arochial school -violates DP for a court to order grandparent visitation over p arents objection f. Right to Purchase and Use Contraceptives -Griswold : g. Right to Abortion Roe: Women have a fundamental right to choose whether or not to terminate pregnancy - Roe: - Planned Planned Parenthood : Reaffirmed Roe, however, the court significantly changed law: No longer is strict scrutiny used with re to abortion rights (like it is under all other/above privacy rights) 1) Prior to viability, the government cannot prohibit abortion; Government may regulate abortion so long as not placed an undue burden on the right -viability: Time w/c fetus can survive outside the womb 6
-the so-called undue burden test replaced SS test with re to abortion rights constitutional. a 24-hour waiting period for abortions is NOT an undue burden. It is constitutional. licensed physicians is NOT an undue burden. State may require require this. It is constitutional. performed by licensed Prohibition of so-called so-called partial birth abortions IS IS an undue burden and thus unconstitutional. unconstitutional. NB law applied to pre-viability abortions… After viability, the government can prohibit abortions except wh en necessary to protect a woman’s life or health. 2) The government is NEVER constitutionally required to use government funds or facilities for abortions. -6 sup ct. cases all held that govn’t may refuse to fund or provide abortions ab ortions in govn’t hospitals. 3) Spousal consent and spousal notification laws are unconstitutional. -Right to abortion belongs to each woman and noone including husband could take that right away. -Undue burden test used. 4) Parental Notice and/or Consent requirements for unmarried minors of abortions -State may require parental notice and/or consent for unmarried minors of abortions…ONLY if the law creates and alternative procedure where a minor can obtain an abortion by going before a judge who will determine that minor is mature enough or in child’s best interests. interests. (provides for notice of procedure????) procedure????) -Has to be a way for minor to have a judicial bypass. h. Right to Refuse Medical Treatment -Cruzan: Cruzan: 1) Competent adults have a right right to refuse medical (even life life saving) care. 8/9 Justices said this. this. 2) A state may require clear and convincing evidence that a person who wanted treatment withdrawn before is terminated? -State’s have important interest in protecting protecting sanctity of life. State can insist on clear and convincing evidence… 3) A state may prevent family members from terminating treatment for another. -State might believe that family member is acting out of conflict of interest. i. There is No Constitutional Right to Physician-Assisted Suicide. -WA v. Glucksberg : WA j. The Right to Privacy Protects the Right to Engage in Private Consensual Homosexual Activity. - Bowers Bowers v. Hardwick : opposite Lawrence v. TX : Expressly overruled Bowers. People cannot be punished - Lawrence punished for same-sex sex acts. NO level of scrutiny articulated here.
VII. EQUAL PROT ROTECTION ION -Whenever govn’t draws distinction between people A. An Approach to Equal Protection -any EP question or case can analytically be broken down into 3 steps
(1) What is the the Classification? How does the government draw a distinction distinction among people? (2) What is the Level of Scrutiny? (3) Does the Government’s Action Meet the Level of Scrutiny? (The level of scrutiny is the rule) 7
Constituional Provisions concerning EP B. (1) EP of 14th Am applies only to state and local govn’t TIP: 14th Am NEVER applies to the federal govn’t
(2) EP is applied to the fed govn’t gov n’t through the DP clause of the 5th Amendment. -There is no clause in Constition w/c says fed govn ’t can’t deny EP -Substantively C. Race and National ORigina Classifications (1) Strict Scrutiny is Use -Whenever govn’t discriminates against people b/c race or national origina, SS must be met. (2) How is the existence of a race or national origin classification proven? -Two alternatives: a. If the racial classification is on the face of the law -the law in its very terms draws a distinction among people based on race. VA: Blacks can’t serve on juries. W. VA: Brown: Black and white children can’t attend public schools pre- Brown: b. Alternatively, if a law is facially race-neutral, proving a racial classification requires proving b oth discriminatory impact AND discriminatory intent Davis: In order for person to be PO, had to pass test. AAs failed test more frequently than whites. WA v. Davis: Only rational basis review. Proof of impact not enough when law is facially facially race-neutral. In order to get more than RB review, must also show intent behind law. Use of peremptory challenges challenges based on race violates EP. Laws that provide peremptory challenges…Impact and intent, doesn’t matter if crim or civil case, pr or def, use of challenge on race violates EP. c. How should racial classifications that benefit minorities be treated? 1) Strict Scrutiny is the test 2) Numerical set-asides require clear proof of past discrimination Sup Ct very hostile to anything that looks like quota or set aside only allowed as remedy to past discrim. c. Educational Institutions may use race as one factor in admissions decisions to benefit minorities. Bollinger : “Colleges and universities have a compelling interest in a diverse student body.” set-asides. Public U can’t add points to admissions profile. Can’t use quotas and set-asides. Gender Classifications D. (1) Intermediate Scrutiny “Ct added requirement: In addition that any gender discrimination must have a highly persuasive justification!” Ct clearly asking for more than just intermediate scrutiny but not SS
(2) How is the existence of a gender classification proven? Two Ways (identical to race): a. Classification exists on the face of the law -the law in its very terms draws a distinction among people on basis of gender. 8
Craig : Beer purchased by men: 21 and women:18 was struck down case: Only men could attend. VMI case: attend. Unconstituional. b. If a law if facially gender-neutral, classification can be proven only by proving discriminatory impact and intent City ordinances about size of person to be PO. Only rational basis review unless Ps can show that intent was behind requirement was disadvantage of women. Use of peremptory challenges on gender. (3) How should gender classifications benefiting women be treated? -Intermediate Scrutiny is test. a. Gender Classifications benefiting women based on role stereotypes are not allowed. Many that appear to benefit women perpetuate damaging stereotypes. Economically dependent women and economically independent men: Alimony law b. “” desiged to remedy past discrimination and differences in opportunities will be allowed SSN different formula for men and women constitutional b/c long history of wage discrimination in law Alienage Classifcations E. -against non-US citizens
(1) Generally Strict Scrutiny is used must be US citizen for welfare benefits…unconstitutional civil service job must be US citizen..unconstitutional to be admitted to Bar -complicated b/c several exceptions where less than strict (2) Only a rational basis used for alienage classifications relating to self-government and democratic process BOTTOM LINE: The government may discriminate against aliens with regard to voting, serving on jury, being PO, teacher or probation officer. “Government may reserve some privileges that relate to just citizens.” POs, teachers, probation officers are integral to self-government….rational basis review Notary publics don’t have anything to do with self-government and dem process….strict scrutiny and unconstitutional. (3) Only a rational basis test is used for congressional discrimination against aliens. “Congress has plenary power to regulate immigration.” (4) Intermediate Scrutiny is used for discrimination against undocumented alien children. -one supreme ct case Plyler v. Doe: Doe: TX law “children of citizens and doc d oc aliens get free education only.” o nly.” Supreme court says unconstitutional b/c no F. Discrimination against Non-Marital Children: Legitimacy Classifications (1) Intermediate Scrutiny -if govn’t discriminates against children b/c parents not married (2) Laws that provide a benefit to all marital children and no non-marital children are always unconstitutional. 9
-Still intermediate scrutiny but such laws -Harder cases is where law provides benefit to some non-marital children but denies to others IN order to inherit from father, paternity had to be established during lifetime of father. All Other Types of Discrimination Receive only Rational Basis Review E. -Some important areas:
(1) Age discrimination -never in Am History has sup ct found any age discrim to violate EP (2) Disability discrimination -City of Clebourne: Clebourne: zoning ordinance prevented home from being (3) Wealth discrimination -over 30 years: “Poverty is not a suspect classification.” (4) Economic regulations -whether challenged under DP or EP receive only RB review Due: Ordinance: in order to be a push-cart vendor, person must have already worked there New Orleans v. Due: for at least 8 years. (5) Sexual orientation Evans: CO amendment 2 adopted adop ted by voters repealing all laws protecting gays and lesbians from Roemer v. Evans: discrim. F. Fundamental Rights Protected Under Equal Protection -The following found and protected under EP (1) Right to travel -keep in mind that in 1999, Sup Ct said also protected under PIs clause of 1 4th Amendment a. Laws that prevent people from entering or leaving state must meet strict scrutiny -CA law: “No person person can move in state unless can prove means to support themselves.” themselves.” Unconstituional b. Durational residency requirements must meet strict scrutiny -where a person who has lived in a jurisdiction for specific amount of time in order to get benefits… Thompson: Chilling effect. Strict Scrutiny. Shapiro v. Thompson: Scrutiny. Unconstituional c. Only a Rational Basis Test is used for restrictions on foreign travel -“There is NOT a fund right to international travel” (2) Right to Vote a. Laws that keep some citizens from voting must meet strict scrutiny. unco nstitutional therefore SS and unconstitutional Poll taxes that require people pay fee in order to vote are unconstitutional b. One person, one vo te must always be maintained. -for any elected body, all districts must be about equal in population. -prior to 60s many state legislatures were battling 10
c. At large elections are allowed unless un less there is proof of a discriminatory purpose. -Where ALL voters vote for ALL representatives Bolden : 3 person city council. council. Could have divided district in 1/3s but let people cast 3 City of Mobile v. Bolden: votes for 3 people. Predominantly white. Proof of impact not enough. d. Use of race in drawing election districts to benefit minorities must meet strict scrutiny -5 cases in 90s all said: “If the government uses race as a predominant factor in drawing election districts…” e. Counting uncounted votes in a presidential election without preset standards, violates EP - Bush Bush v. Gore: Gore: (3) Education is NOT a Fundamental Right Education: funding public schools…Supreme Court rejected EP Rodriguez v. San Antonio Board of Education: challenge even though poor areas taxed more than wealthy areas so less to spend on education. VIII VIII.. FREE FREEDO DOM M OF OF SPE SPEEC ECH H Free Speech Methodoligy A. (1) Distinction between content-based and content-neutral laws
a. Content-based laws generally must meet strict scrutiny. -two alternative ways of finding that a law is content-based: 1) Subject-matter restriction: where application of the law depends on the topic of the speech. Chicago had ordinance: “No picketing in residential neighborhoods unless labor protest.” This is Subject matter, content based restriction and unconstitutional MN law: “Candidates for judicial office can’t make statements about disputed legal or political issues.” Unconstitutional. 2) Viewpoint Restriction: Where application of law depends on the ideology of the message. If a city: “Pro “Pro war demonstrations demonstrations allowed in park. Anti-war not allowed.” D.C. ordinance: “NO demonstrations within X feet if critical of foreign…” b. Content-Neutral Laws only have to meet Intermediate Scrutiny -if a law applies to all speech, whatever topic or viewpoint, content-neutral. “No parades or demos in city park.” (2) Prior Restraints -a Prior Restraint is a judicial order when an administrative system that stops speech before it occurs a. Court orders stopping speech must meet Strict Scrutiny Classic: Order preventing speech from happening Papers: Fed govn’t wanted order to prevent NY Times publishing info re govn’t involvement in Pentagon Papers: War. b. The Government may require a license for speech only if it has an important reason for licensing and there are clear criteria leaving no discretion to licensing authority City ordinance: In order for demo, need permit, on first come first serve basis. Interest in not more than one group having demo at same time -also has to have procedural safeguards 11
(3) Vagueness and Overbreadth a. A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what speech is allowed. “Vague laws violate DP. But Sup Ct. especially concerned about vague laws that violate speech b/c such regulations will potentially chill free expression.” City ordinance: sale of any books tending to corrupt morals of youth were prohibited b. Overbreadth: A law in unconstitutionally uncon stitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated City Ordinance: Prohibiting Prohibiting all live entertainment to close down a nude dancing. Even assuming nude dancing not protected, this law does much more than that by (4) Symbolic Speech -The government may regulate conduct that communicates if it is an important interest unrelated to suppression of the message. And if the impact on communication communication is no greater than necessary to to achieve the government’s purpose After bar exam, someone upset and beat up bar examiner, arguing freedom of speech. speech. Stopping violence is an important govn’t interest. Flag-burning is constitutionally protected speech (“Govn’t can’t prohibit flag-burning as form of expression”) Draft card burning is not protected speech. (O’Brien (O’Brien:: Govn’t has important interest in facilitating…) Cases) Nude dancing is not protected speech. (City of Eric and Glen Theatres Cases) (VA v. Black : Burning a cross is protected speech UNLESS it is done with the INTENT TO INTIMIDATE (VA “Govn’t can’t ban all cross burning. BUT, can if govn’t can prove in specific instance it was done with intent to threaten or intimidate.) Contribution limits in election campaigns are constitutional; Expenditure limits are unconstitutional (Govn’t may limit the amount person may contribute to person or committed but not amount that person spends overall.) (5) Anonymous Speech is Protected by the 1st Amendment -“People have a 1st Amendment right to speak without disclosing their IDs.” B. What Types of Speech are Unprotected or Less Protected by the 1 st Am. -So govn’t can “prohibit and punish” (1) Incitement of Illegal Activity: Unprotected -Modern Test ( Brandenburg Brandenburg ): ): “Govn’t may punish advocacy if there is a substantial a substantial likelihood of imminent illegality and if the speech is directed at causing imminent illegality .” (2) Obscenity and Sexually Oriented Speech CA) (all parts must be met): a. 3-Part Test for Obscenity (Miller (Miller v. CA) 1) The material must appeal to the prurient interest -“Prurient interest” refers to a “Shameful or immoral interest in sex.” “That which excites lustful or lascivious thoughts.” 2) The material must be patently offensive under the law prohibiting obscene material. -Any law local, state or federal that prohibits obscene material has to describe w/c depictions it deems patently offensive and material has to fit within that definition. 3) Taken as a whole the material must lack serious, redeeming artistic, literary, political, or scientific value. 12
Local Governments May Use Zoning Ordinances to Regulate the Location of Adult Bookstores in B. Movie Theatres -Young : Detroit limited # on any city block. Upheld in interest of preserving character of neighborhoods. TIP: Errogenous zoning is permissible
C. The Government May Ban Child Pornography Even if it is Not Obscene -Has to use children in its production in order to be considered child pornography. Ashcroft : If no children used, can’t be child porn - Ashcroft D. The Government May Punish Private Possession of Child Porn But it May Not Punish Possession of Obscene Materials GA: -Stanley v. GA: -Osborn v. Ohio: Ohio: Above rule. Govn’t has compelling interest in drying up market for child porn. The Government May Seize the Assets of Businesses Convicted of Obscenity Law Violations E. - Alexander: Alexander: MN convicted Profane and Indecent Language is Generally Protected by the 1 st Amendment F. -Coehn v. CA: CA: “Fuck the Draft.” Boy convicted of disturbing peach w/c was overturned by Sup Ct. “To censor words is to censor ideas.”
Exceptions: 1) TV and Radio broadcasts - FCC FCC v. Pacifica: Pacifica : Broadcast media is uniquely intrusive of the home…only applies to free broadcasts 2) Schools - Bethel Bethel v. Frasier : speech filled with sexual innuendo. “Schools are responsible for teaching civilized discourse.” (3) Commercial Speech a. False and Deceptive advertising is not protected by the 1st Amendment -the govn’t may prohibit and punish b. Even True ads that inherently risk deception may be prohibited KNOW: 1) States may prohibit professionals from advertising and practicing under trade names. -TX law: Optometrists can’t adopt trade names 2) States may prohibit attorneys from in-person solicitation of clients for profit. -“If a lawyer does this, there is no one to monitor this and too great a danger.” dan ger.” -By letter is okay 3) States cannot prohibit accountants from engaging in in-person solicitation of clients for profit. -FL law: applied to accountants the above lawyer rule. Edenfeld : “Attorney are trained in advocacy so trust involved. Accountants trained in accuracy so no need to trust.” c. Other government rgualtion of commercial speech is allowed if it meets intermediate scrutiny. -FL law: Attys can’t solicit solicit accident victims for 30 days after accident. Privacy right of accident. d. Government regulation of commercial speech must be narrowly tailored but it does not hav e to be least restrictive alternative. 13
(4) Defamation -“Defamatory speech: libel and slander are unprotected by 1st Amendment.” -Limited recovery for defamation a. If the P is a public official or running for public office, Pl can recover for defamation only by proving with clear and convincing evidence the falsity of the statement and actual malice. -Essential to be open and robust today but those running for public office… -Actual Malice: D knew statement was false or acted with reckless disregard of the truth. b. If the P is a public figure, the same rules apply as with public officials -No precise definition of “public figure” but generally those who thrust themselves in limelight, access to media (celebrities are quintessential public figures.) c. If the P is a private figure and the matter is of public concern, the Pl can recover compensatory damages by proving falsity of statement and negligence of the speaker. -Private figures (not public official or figure) -Matter w/c public has legitimate interest -Recovery or presumed (automatic, preset by law) or punitive (to p unish) damages requires proof of actual malice. d. If the Pl is a private figure and matter is not of public concern, presumed and punitive damages do not require proof of actual malice.
(5) Privacy and the 1st Amendment a. A state may not allow liability for the truthful reporting of information lawfully gained from public records. (2) o
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Exceptions: (a) (a) Publ Public ic Func Functi tion onss Exce Except ptio ion: n: If a priv privat atee enti entity ty is perf perfor ormi ming ng a tast tastk k that that has has been been traditionally/exclusively done by the govn’t then the constitution applies (Marsh (Marsh v. Alabama: Co. Cases: TX refusing to town; Private co. ran all town) (White (White Primary Cases: to allow AAs to vote) Edison: private utility utility co. terminated terminated customer This is a narrow exception ( Jackson v. Metro Edison: service—public had to give due process—SC said running a utility has not traditionally, exclusively done by state govn’t) (b) Entangl Entanglemen ementt Except Exception ion:: If the govn’t affirma affirmativ tively ely authorize authorizes, s, encoura encourages ges,, or facili facilitat tates es unconstitutional conduct, the constitution applies Problem: The cases don’t neatly fit together Most Important Cases: i. Courts cannot enforce racially restrictive covenants (contract among members of a • neighborhood that they won’t sell property to blacks or jews) ii. There IS state action: If the govn’t leases premises to a restaurant that racially • Eagle Restaurant/Wilmington Delaware case) case) discriminates ( Eagle iii. There is NOT state action when a private school that is over 99% funded by the • government fired a teacher b/c of her speech. iv. There is NOT state action when the NCAA orders the the suspension of a basketball • coach at a state state university. university. (Tarkanian) Tarkanian) v. There IS state action when a private entity regulating regulating interscholastic sports of the • Tennesses Athletic Athletic Association Association:: Wa stat statee susp suspen ends ds a scho school ol (Tennesses Want nted ed to impo impose se sanctions/suspensions on a private school..SC ruled against TAA saying that there 14
B. • •
C. • • •
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was state state action. What’s What’s the difference difference between NCAA NCAA and TAA is that NCAA operates all over the country whereas TAA operates only in one state) vi. There is NOT state state action when a private private club with a liquor license license in the state • racially racially discrimina discriminates. tes. (Moose Lodge case: Refused to serve AAs…SC ruled in favo favorr of ML no stat statee acti action on so it coul could d keep keep liqu liquor or lice licens nsee and and cont contin inue ue to discriminate) APPLICATI ATION OF THE BILL OF RIGHTS (1) (1) Bill Bill of Right Rightss appl applie iess dir direct ectly ly only only to to the the fed feder eral al govn’ govn’tt (2) Bill Bill of Rights Rights is appl applied ied to to state state and and loca locall govnt’ govnt’ss throu through gh thei theirr incor incorpor porati ation on of the due th process clause of the 14 Amendement o Selective Incorporationists: Only some provisions are fundamental and only these apply to state and local govn’ts Fundamental Incorporationsist: ALL provisions apply o th o Never has SC held that ALL provisions of DP clause of 14 Amendement apply to state and local govn’t LIST OF PROVISIONS THAT HAVE NEVER BEEN DEEMED INCORPORATED: o (a ) 2nd Amendment Right to Bear Arms: o (b) 3rd Amendment Right to not have soldiers quartered in a person’s home o (c ) 5th Amendment Right to grant jury indictment in criminal criminal cases. Before a person o can be tried for a federal crime, there must be grand jury indictment. (d) 7th Amendment Right to jury trial in civil cases. o (e ) 8th Amendment Right against excessive fines. o OTH OTHER THAN ABOVE PROVISIONS, ALL OTH OTHERS APPLY UNDER o INCORPORATION OF BILL OF RIGHTS LEVELS OF SCRUTINY Whenever SC deals with civil rights depends on level of scrutiny THREE LEVELS: (1) (1) Rati Rationa onall Basis Basis Test Test:: Law is uphe upheld ld if it is is ratio rational nally ly rela relate ted d to a legi legiti tima mate te gover governm nmen entt purpose. Legitimate, permissible for govn’t to do. o ACTUAL objective does not have to be legitimate..Means only have to be rational, o reasonable Tremendously deferential to govn’t because govn’t almost always wins o Challenger has the burden of proof o (2) (2) Inte Interm rmedi ediat atee Scruti Scrutiny ny:: A law law will will be upheld upheld if it is subs substa tant ntia iall lly y relat related ed to an impor importa tant nt govn’t purpose. o Govn’ts goal must be more than something that is legitimate for the govn’t to do. o Ct will only look look to govnt’s actual actual purpose. purpose. A conceivable conceivable important important purpose purpose is not enough Means chosen must be substantially related…nearly tailored (good way, not best way--o least restrictive alternative) Govn’t has the burden of proof o (3) (3) Stri Strict ct Scr Scrut utin iny: y: A law law will will be be uphel upheld d only only if it it is nec neces essa sary ry to to achi achiev evee a compe compell llin ing g government purpose o Govn’ts purpose must be something that is more than just legitimate for the govn’t to do o Ct. will look only to govnt’s ACTUAL objective and if is compelling o Means must be absolutely necessary to achieve goal 15
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VI.
In order for the govn’t to show that the law is necessary it must prove that NO LESS RESTRICTIVE ALTERNATIVE CAN ACHIEVE ITS OBJECTIVE Govn’t usually loses Govn’t has burden of proof
DUE PROCESS 5th and 14th Amendments—can’t deprive • A. PROCEDURAL DUE PROCESS (1) Has there been a deprivation of Life, Liberty, or Property? • a. Def Defini inition tions: s: i. A deprivat deprivation ion of liberty liberty occurs occurs if there there is a loss of signific significant ant freedom freedom provid provided ed by constitution or statute. (e.g. except in an emergency, before an adult can be civilly committed there must be notice and a hearing) (harm to reputation by itself is not a loss of liberty) ii. Entitlement Entitlement:: a person person has a property property interest interest if there there is entit entitlteme ltement. nt. E exists exists if there there is a reasonable expectation to continued receipt of a benefit. EXAMPLES 1. Person Person works works for govn’t and govnt’ govnt’ tells tells individual individual that that B. SUBSTANTIVE DUE PROCESS 1. Ask Asks whet whethe herr the govn govn’’t has has with with adeq adequa uatte reaso eason n to take ake away away a per person’ son’ss life, ife, libe liberrty or propertysubstantive justification. a. Safeguard Economic liberties b. Protect Privacy 2.
Cons Consti titu tuti tion on pro provi vides des only only mini minima mall prot protec ecti tion on for for econ econom omic ic libe libert rtie ies. s. a. Only Only a rati rationa onall bas basis is test test is used used for for law lawss eff effec ecti ting ng econ econom omic ic righ rights ts.. th b. Takings clause: found in 5 amendment. Govn’t may take take private property for public use but it must pay just compensation. Doesn’t use test of levels levels of scrutiny. scrutiny. ANALYSIS: i. Is there a taking? Possessory Taking: Govn’t confiscation or physical occupation of property is always a taking that is possessory. Regula Regulator tory y Taking Taking:: Govn’t Govn’t regulati regulation on is a taking taking if it leaves leaves no reasonabl reasonable, e, economically viable use of the property. REMEMBER: Govn’t regulation is not a taking simply b/c it decreases value of someone’s commission) property (eg. Penn (eg. Penn Central v. NYC ) ( Lucas v. SC Coastal commission) ii.
Is it for public use? Govn’t may take take private property property only for public public use. If not, gvn’t must give give it back. back. SO long long as govn’t govn’t acts out of reason reasonabl ablee belief belief that the takin taking g will benefi benefitt the public. public. SC reaffirmed in June 2005 ( Kelo Kelo v. City of New London) London) iii.
Is just compen pensation pai paid? Measure Measure of payment is just compensatio compensation. n. Just compensati compensation on is measured in terms of the loss to to the owner. Gain to the taker is irrelevant. irrelevant. In reasonable market value terms. c.
Contr Contrac acts ts Clau Clause se:: “No “No stat statee sha shall ll impai impairr the the obli obliga gati tion onss of of con contr trac acts ts”” i. ii. ii. Stat Statee and loc local al govn’ govn’ts ts can can inter interfe fere re with with exi exist stin ing g priva private te cont contra ract ctss if inte interm rmed edia iate te scrutiny is met. met. “if actions are reasonably and narrowly tailored to achieve achieve iii. iii. Stat Statee and loca locall govn’ govn’ts ts can can inter interfe fere re with with exis existi ting ng govn’ govn’tt contr contrac acts ts only only if if they they meet strict scrutiny. 16
3.
Priv Privacy acy is a fund fundam amen enta tall righ rightt prot protec ecte ted d unde underr subs substa tant ntiv ivee due due proc proces ess. s. a. Righ Rightt to marry marry is a funda fundame ment ntal al righ right— t—go govn vn’t ’t can can inter interfe fere re with with or prev preven entt marri marriag ages es only if it meets strict scrutiny b. b. Righ Rightt to to pro procr crea eate te or ster steril iliz izee is is a fund fundam amen enta tall rig right ht c. Righ Rightt to to cus custo tody dy of one’ one’ss chi child ldre ren n is is a fund fundam amen enta tall rig right ht d. Right to keep the family together is a fundamental right (Moor Mooree v. City City of East East Cleveland ) (Village Boras) (Village of Belle Terre v. Boras) e. Righ Rightt of pare parent ntss to cont contro roll the the upbr upbrin ingi ging ng of of thei theirr chil childr dren en is is a fun fundam damen ental tal right right f. Righ Rightt to to pur purch chas asee and and use use cont contra race cept ptiv ives es is a fun funda dame ment ntal al rig right ht (Seminole case) case) (Roe v. Wade) Wade) ( Planned Planned Parenthood v. Casey: Casey: g. Right to to ab abort ortion is is a fund undamental right Roe SC significantly changed law. No longer is strict scrutiny used under abortion rights.) Current Law with regard to abortion: i. Prio Priorr to to via viabi bili lity ty,, gov govn’ n’tt canno cannott pro prohi hibi bitt abor aborti tion on.. Govn Govn’t ’t may may regu regula late te abor aborti tion on so long as it does not place an undue burden on the right. right. Viability Viability is the time time at which the fetus can survive outside the womb. ii. ii. Gove Govern rnme ment nt is is never never requ requir ires es to to pay pay for for or use use its its fac facil ilit itie iess for for __or __or abo abort rtio ions ns iii. iii. Spous Spousal al cons consen entt or spous spousal al notif notific icat atio ion n laws are are uncons unconsti titu tuti tiona onall (i.e. (i.e.,, no govn’t govn’t may require as a condition VII.
EQUAL PROTECTION Whenever govn’t • A. APPROACH TO TO EQ EQUAL PR PROTECTION THREE STEPS: • (1) What is the the classification? How is the govn’t drawing a distinction distinction among people? • (2) What is the level of scrutiny? • (3) Does the govn’ts action meet the level of scrutiny? • B. CONS CONSTI TITU TUTI TION ONAL AL PROV PROVIS ISIO IONS NS CONC CONCER ERNI NING NG EQUA EQUAL L PROT PROTEC ECTI TION ON th (1) Equal protect protection ion clause clause in 14 Amendment applies only to state and local govnt’s (**Remember: • th the 14 A never applies to the federal govn’t**) (2) Equal protection protection applies applies to the federal govn’t through through the due process clause of the 5th A. There • is no provision C. RACE RACE AND AND NAT NATIIONAL ONAL ORI ORIGIN GIN CLA CLASS SSIIFIC FICATIO ATIONS NS (1) Strict Scrutiny is used: When someone is discriminated against • (2) How is the existence of a race or national origin classification proven? • (a) (a) clas classi sifi fica cati tion on exis exists ts on on the the face face of of the the law: law: the the law law in its its ver very y term termss draw drawss a o distinction among people o (b) (b) alte altern rnat ativ ivel ely, y, if a law law is facia faciall lly y race race-n -neu eutr tral al,, prov provin ing g a raci racial al clas classi sifi fica cati tion on requ requir ires es demons demonstr trat atin ing g both both disc discri rimi mina nato tory ry impac impactt and disc discri rimi minat nator ory y inte intent nt (Washington v. Davis: Davis: D.C. had requirement that in order for person to be police officer, had to pass a test. test. Statitstics showed AAs predominantly failed test. Ct said only rational basis review (3) How should racial classifications benefiting minorities be treated? • (a) (a) Stri Strict ct scrut scrutin iny y is used: used: It does doesn’ n’tt matt matter er wheth whether er the racia raciall clas classi sifi fica cati tion on is o invidious or benign (b) (b) Nume Numeri rical cal Set Set asi aside dess req requi uire re clea clearr pro proof of of past past disc discri rimi minat natio ion: n: (US v. Paradise: o Alabama state police engaged in intentional race discrimination in hiring and promotion.) o (c) (c) Educ Educat atio iona nall inst instit itut utio ions ns may use use race race as one facto factorr in admi admiss ssio ions ns to benef benefit it minorities. (Grueter (Grueter v. Bolinger: If colleges and universities have a compelling interest 17
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in having a diverse student body…can’t set aside a set number of slots for minority students nor can they add points to application (d) Gender cla classifications: Inte Interm rmed edia iate te scr scrut utin iny y is use used; d; if if the the govn govn’t ’t dis discr crim imin inat ates es on on the the basi basiss of i. Virginia) sex (US (US v. Virginia) ii. ii. How How is is the the exist existen ence ce of a gende genderr clas classi sifi fica cati tion on dete determ rmin ined ed?? Two Two ways: ways: a. classification exists on the the fac face of the the law law: the the law by its its ver very • terms draws a distinction between people on the basis of gender (Craig (Craig v. Boren) Boren) (US VA: Only men could attend VA military institute) (US v. VA: b. b. alte altern rnat ativ ivel ely, y, if if a law law was was faci facial ally ly gen gende derr neut neutra rall prov provin ing g a gend gender er • clas classi sifi fica cati tion on requ requir ires es prov provin ing g both both disc discri rimi mina nato tory ry impa impact ct and and discriminatory intent. iii. How How shou should ld gende genderr cla class ssif ific icati ation onss tha thatt bene benefi fitt wom women en be trea treate ted? d? Under Under iii. intermediate scrutiny. a. gender classifications benefiting women based upon role • stereotypes are not allowed. SC: many laws that benefit women in effect perpetuate stereotypes ( b. b. gend gender er cla class ssif ific icat atio ions ns ben benef efit itin ing g women women are are all allow owed ed if if they they are are to to • remedy past discrimination or differences in opportunities.
ALIE ALIENA NAGE GE CLAS CLASSI SIFI FICA CATI TION ONS S (laws (laws disc discri rimi minat natin ing g agains againstt non-c non-cit itiz izens ens)) (1) (1) Gene Generral Rul Rule is is Stric trictt Scrut crutiiny: ny: (2) Only Only a Rati Rational onal Basis Basis test test is is used used for for alien alienage age clas classif sifica icatio tions ns relat related ed to self self govern governmen mentt and the democratic process: process: BOTTOM BOTTOM LINE: The govn’t can discrimina discriminate te against aliens with regard to voting, serving on a jury, being a police officer, a teacher, or a probation officer. Govn’t can reserve some privileges just for citizens. (3) Only Only a ratio rational nal basi basiss test test is is used used for for congr congress ession ional al discr discrimi iminat nation ion agai against nst alie aliens: ns: SC SC says says congress has plenty of power to regulate immigration. (4) (4) It appear appearss that that inter interme media diate te scrut scrutin iny y is used used for discr discrim imin inat atio ion n agai agains nstt undocu undocume ment nted ed aliens. ( Plyler Plyler v. Dove) Dove)
E. DISCRIMINATION AGAINST NON MARITAL CHILDREN: LEGITIMACY CLASSIFICATIONS (1) Intermedi ediate Sc Scrutiny is is us used • (2) (2) Law Law that prov provid ided ed benef benefit it to all all marit marital al child childre ren n but no non-m non-mar arit ital al child childre ren n are alway alwayss • unconstitutional. F. ALL ALL OTHE OTHER R DIS DISCRIM CRIMIINAT NATION ION ONLY ONLY HAS TO TO MEE MEET RATIO ATIONA NAL L BASI BASIS REVI REVIE EW UNDER EQUAL PROTECTION (1) (1) Age disc discri rimi minat natio ion n get getss onl only y rati rationa onall bas basis is revi review ew.. • City of Cleb Clebour ourn n v. (2) (2) Disa Disabi billity ity disc discrrimi iminat nation rece receiives ves onl only rat rational onal basi basiss revie eview w (City • Clebourn Living Center ) (3) Wealth Wealth disc discri rimin minati ation on recei receives ves only only ration rational al basis basis revi review: ew: Disc Discrim rimina inatio tion n against against poor poor is is • not (4) (4) Econo Economi micc regula regulati tion onss receiv receivee only rati ration onal al basis basis revi review ew:: Wheth Whether er a govn’t govn’t econ econom omic ic • regulation is challenged under due process or equal protection is reviewed under rational basis New Orleans v. ). ( New Evans: Colorado intiative passed by (5) (5) Sexu Sexual al Orie Orient ntat atiion disc discri rim minat inatiion… on….( Roehmer v. Evans: • voters protecting gays and lesbians from discrimination 18
G.
VIII VIII..
FUND FUNDAM AMEN ENTA TAL L RIGH RIGHTS TS PROT PROTEC ECTE TED D UNDE UNDER R EQUA EQUAL L PROT PROTEC ECTI TION ON (1) The right to travel is a fundamental right (Saenz Saenz v. Roe Roe: fundam fundament ental al right right under under • th privileges and immunities clause of 14 A) o (a) Laws Laws that that preven preventt peopl peoplee from from moving moving into into a state state must must meet meet strict strict scruti scrutiny. ny. (b) (b) Dura Durati tiona onall resi reside denc ncy y requ requir irem ement entss must must meet meet str stric ictt scru scruti tiny ny.. Wher Wheree a per perso son n o must live in a jurisdiction in order to (Shapiro (Shapiro v. Thompson: Thompson: In order to receive benefits from from state, state, must must have lived lived in state state for a year. year. SC, under under strict strict scrutiny scrutiny,, ruled ruled law unconstitutional) (c) (c) Only Only a rat ratio ional nal bas basis is tes testt is use used d for for rest restri rict ctio ions ns on for forei eign gn tra travel vel.. SC say sayss ther theree o is not a fundamental right to international travel (2) (2) The The ri right ght to to vot votee is is a fun funda dame ment ntal al right ight • o (a) (a) Laws Laws tha thatt preve prevent nt some some citi citize zens ns from from voti voting ng must must meet meet stri strict ct scru scruti tiny ny (e.g (e.g.. Pole Pole taxes: requirement that people pay fee to vote is unconstitutional) (b) (b) One One pers person on,, one one vote vote mus mustt alw alway ayss be mai maint ntai aine ned. d. (ie. (ie. For For any any ele elect cted ed body body,, all all o districts must be about equal in population. popu lation. (c) (c) At larg largee elect electio ions ns are are allow allowed ed unles unlesss there there’s ’s proof proof of of a discri discrimi minat nator ory y purpo purpose se o (when all voters vote for other) (City (City of Mobile case: case: Had at large election, election, where every voter cast 3 votes for the the 3 …SC found it constitutional. constitutional. Proof of discriminatory discriminatory impact was not enough) (d) (d) Use Use of race race in drawi drawing ng elec electi tion on distr distric icts ts to to benefi benefitt minor minorit itie iess must must meet meet stric strictt o scrutiny. (e) Counti Counting ng uncou uncounte nted d votes votes in a presi presiden dentia tiall elect election ion withou withoutt preex preexist isting ing standar standards ds o violates equal protection ( Bush Bush v. Gore) Gore) (3) (3) Educ Educat atiion is not not a fund fundam amen enta tall righ rightt unde underr equa equall prot protec ecti tion on or the cons consttitut itutio ion n • ( Rodriguez Rodriguez v. San Antonio Board of Education: Education : Result: Result: poor areas areas get taxed taxed at higher rate rate but get much less…SC upheld constitutional) THE THE FIR FIRST ST AMEN AMENDM DMEN ENT T A. FREE FREEDO DOM M OF SPEE SPEECH CH (FRE (FREE E SPEE SPEECH CH METH METHOD ODOL OLOG OGY) Y) (1) Distinctio Distinction n between between content-based content-based and content-neutr content-neutral al laws • (a) Generally, Generally, content content based restriction restrictionss must meet strict strict scrutiny. scrutiny. There are two alternative alternative o ways to find content based: i. Subjec Subjectt matter matter restric restrictio tion: n: Where Where the applicat application ion of the law depends depends on the topic topic of the speech ( Viewpoint restrict restriction: ion: Where Where the application application of the law law depends on the ideology ideology ii. Viewpoint of the message (If a city says pro war demonstrations are allowed in park and not anti war demonstrations.) (b) Content neutral laws only have to meet meet intermediate scrutiny o law applies applies to to all speech whatever whatever the subject subject matter, matter, whateve whateverr the viewpoi viewpoint nt i. The law (2) Prior restraints: restraints: A judicial order for for an administrative system system that stops speech speech before it occurs • (a) Court order order preventing preventing speech must meet strict strict scrutiny scrutiny (Torre (Torre v. Cochran argued by o Chemerinsky) (3) Vagueness Vagueness and and OVerbreadt OVerbreadth h • (a) Vaguene Vagueness: ss: A law is unconst unconstitu itutio tional nally ly vague vague if a reason reasonabl ablee person person cannot tell what o speech is prohibited and what is permitted B. FREEDOM OF RELIGION C. Establishment Clause a law violates establishment clause if it violates any part of the clause (McCrury County v. ACLU) 19
