Law Con Detailed Outline Incorporation Cal principles emanate either from discrete passages or are extrapolated from the entire doc/loosely grounded in the passages The original C on individual rights: o Habeas corpus Art. 1 Sec 9 Clause 2, Bill of Attainder, Ex post facto, Contract clause, Priv & Imm in Art 4 Barron v. Baltimore o Court says BOR does not apply to states o Historical arguments Civil War Amendments: 13-15 o Adoption of these amendments is the most important event in Cal amendments In particular 2nd sentence of 14th Am Creates protection of inds from STATES Slaughterhouse Cases o Involves a substantive right: Right to work as one desires Autonomy, To not be discriminated against as you attempt to work in your trade o LA law gave a monopoly to a particular company and forbade other slaughterhouses from operating Using police power to protect public health o Purpose of these amendments was to protecting freed slaves, not butchers in New Orleans o Key interpretive move: Priv & Imm of citizens of states is diff from those of the citizens of the US Citizens of states: broad but varies state to state Citizens of US: narrow o 4 Dissenting Justices Field: Priv or Imm clause This clause is about protecting fundamental ind rights o Right to ply ones trade is one of those rights Comes from Adam Smith & Blackstone Bradley: relies on priv/imm, due process AND equal protection All these clauses are violated Federalism is important but so are ind rights Debate: Does the 14th Am incorporate the BOR and make the applicable to the states? o Focuses on the DP clause mostly Justice Blacks dissent in Duncan defends total incorporation by using priv or imm clause o Slaughterhouse case does have some indication that they felt the priv & imm clause does incorporate rights but Majority focused on natural rights not BOR Court has incorporated both procedural (crim pro) and substantive (speech, religion, etc) rights Approaches o Total Incorp Justice Black 14th Am makes all the BOR applicable to states to the same extent as they apply to the federal govt (incorporate all and no more) o Selective Incorp (at least 2 types) 1
Cardozo, Frankfurter, Harlan Fundamental rights should be incorporated & applied to the states o If justice can be met w/o this right it is not fundamental Essential to Justice White in Duncan Right to jury trial may not be essential to justice but it is important and w/in the overall context of US crim pro it is fundamental If a right is deemed fundamental it will be incorporated to the full extent that it applies to the Federal Govt o Total Incorporation PLUS Justice Murphy in Adamson All the BORs are fundamental & there are other fundamental rights as well Adamson o Debate bw Black & Frankfurter o Black argues for Total Incorporation o Frankfurter If the framers meant what Black says they would have said it The 2 DP clauses dont mean such very different things Blacks approach will result in a warped construction of the 1st 8 Amendments Courts will narrowly interpret the amendments bc they are nervous of restricting the states too much (See Williams) In Re Winship o Says BARD is fundamental Williams o Allowed a non-unanimous jury verdict in a state court Whose position has won out? o We are really at selective incorporation plus o Not incorporated: 2nd, 3rd, 7th, or grand jury
Substantive Due Process Lochnerinzing: scrutinizing economic regulations w/ care & frequently striking them down Calder v. Bull o CT legislature required a 2nd hearing that held a will invalid o Ex post facto clause Art. 1 Sec. 10 Clause 1: Powers denied to the states Court says this clause only applies to criminal law (this was a civil case) o Are there natural rights protected by the C against invasion by the state govt? In the pre-Civil War period, the court as a whole never invokes the notion of natural law to strike down a state action Dred Scott o Federal govt says that you can lose your property by crossing state lines? MO compromise was a federal law This is based on the 5th Am due process clause o Has the effect of protecting a substantive right (slave owners property right) Munn v. IL p. 490 o State rate reg for grain elevators o Court says this does not violate the DP clause of 14th Am 2
This is a police power o Limits the holding to such industries that are clothed in the public interest (like utilities) Santa-Clara p. 491 o Corporations are persons w/in the meaning of the 14th Am Allegeyer o Liberty means more than freedom from bodily restraint: It includes economic liberty Lochner v. NY o NY maximum hour law for bakers o Real question is whether liberty of K should prevail over this state law o Holden v. Hardy Allows a max hour law to be passed by the state Court said this was different bc that law applied to miners and mining is much more dangerous than baking o Court has to inquire into the states interest and weigh it against the individual liberty o Act must have a direct relationship to the public interest o What are the goals & objectives of the max hour law? Health of the bakers This is a legit state concern but the court doesnt believe that this was the true motive of the legislature Public health (consumers) This is a legit state interest but there are less restrictive alternatives Strong workforce Labor Law Concern Not a legit goal in this particular case bc there is no indication that these bakers could not stand up for themselves o Holmes Dissent It isnt up to the court to decide which employees the state can protect, this is about bad policy o Harlan Dissent Says this is motivated by an interest to protect the health of the state Bakers work extremely hard Muller v. OR o 3 yrs after Lochner court upholds an OR law that puts a max hour law on women who work in laundries & factories b/c the lawyers show the serious health probs encountered by women Nebbia v. NY o Min price of milk This law is upheld despite Lochner Must be a legit goal & a substantial relationship bw means & ends o Court says this law is substantially related to keeping the dairy industry going o Dissent If they want to protect the farmers they should regulate what farmers can charge not what retailers should charge (not rz related) West Coast Hotel v. Parrish 1937 o This is a yr after the shift in time that saved the nine o Court upholds a min wage law for women o Court is now prepared to recognize labor law concerns as a legit state goal States can protect bargaining power 3
Williams v. Lee Optical o OK optician law o Court upholds the law, even tho it may be needless and wasteful in many cases Carolene Products o Filled milk, this is a federal law o Law is upheld o FN 4 p. 508: re-read this Meyer v. NE o German teacher??? Pierce v. Society o Public school requirements??? Griswold v. CT o State law criminalizes use of contraceptive for the purpose of preventing pregnancy This case challenges the application of this law to married persons o Court uses many different parts of the C to strike this law down 1st, 3rd, 4th, 5th, 9th, & 14th Due process clause of 14th Am incorporates a right of privacy o Douglas writes for majority Right to privacy goes back to Marbury in looking at the structure of the C Penumbras of the BOR It is entirely appropriate to incorporate with the BOR its emanations o Harlan Concurs in the judgment but not in Douglas opinion Harlan says liberty in 14th am stands alone Critical of penumbra idea th 14 incorporates fundamental rights & this is one of them o Goldberg Concurs Agrees that the 14th am includes fundamental rights Focuses a lot on the 9th am (textual argument) Fundamental right: Right to procreate Eisenstadt o Talks about which rights of privacy we are concerned about Anti-snooping, Anti-dosclosure, Autonomy Decisions to bear children are fundamental Is there support for the autonomy based right to privacy apart from Goldbergs opinion in Griswold? o Meyer & Pierce There is an argument that Meyer & Pierce are really 1st Am cases, it is about mind control o Skinner Sterilization case There are 2 separate analytical processes o Is there a fundamental individual right? o Is this right outweighed by state interests? Roe v. Wade o Strikes down a TX statute criminalizing non-life saving abortions o This is about freedom of personal autonomy o Rehnquist Says this isnt about privacy because this is not a private behavior 4
He looks at snooping & disclosure types of privacy o Blackmun Fundamental right to do with your body as you please Risk of distressful life & future o Seven justices say that the state interest does not outweigh individual right o Blackmun concludes that the unborn are not persons under the 14th am o Roe is about an outright criminal prohibition of abortion Court could have struck this down and gone no further, but instead they created the trimester approach Doe v. Bolton o GA abortion law, prohibits abortion with a series of exceptions Decisions are made by hospital abortion committees o Law is struck down Maher v. Roe & Harris v. McRae o Allows states to fund childbirth and not abortions Webster o Allows a ban on abortions at state hospitals Planned Parenthood v. Casey o Undue burden test & the application of this test to a variety of restrictions o This case maintains the fundamental holding of the right to choose to have an abortion Redefines viability (gets rid of trimester approach) o Blackmun concurs: The state is almost enslaving women by forcing them to remain pregnant o Scalia: Viability is an arbitrary line that the court is just making up o Rehnquist: Under English law, abortion was forbidden after quickening (when the fetus begins to move) o Undue Burden Test It accommodates state experimentation better In applying it the court overrules precedents of Akron & Thornbird o Exploration of stare decisis Court examines overruling of Plessy v. Ferguson by Brown v. Board and Lochner by West Coast Hotel B/w Lochner & West Coast there was the Great Depression We learned a lot There was no such learning experience b/w Roe and Casey Has there built up reliance on the precedent of Roe? o Upholding 24-hr waiting period as not facially invalid o Spousal notification requirement is unCal in so many applications that it is facially unCal Dont look at law in the abstract, look at the practical application Stenberg o Partial birth abortions o Majority says there must be a provision allowing the procedure when it is necessary to protect the womans health Moore v. E. Cleveland o Zoning law prohibits non-nuclear families from living together o This is challenged as applied to a grandmother raising 2 grandsons who are cousins (rather than brothers) 5
This application of the law is UnCal Roberts v. US Jaycees o Freedom of association case Freedom of intimate association o Family relationships are defined by Relative smallness High degree of selectivity Seclusion from others Zablocki o There is a fundamental right to choose to marry o The goals are legit but the court finds that they are not rationally related to the means Califano v. Jobst o There is a negative financial consequence for disabled people who get married o This law is upheld Like abortion cases that distinguish bw prohibition and refusal to fund abortions Michael H o Married woman has a baby from an affair and the biological father is denied rights bc there is a conclusive presumption that the husband is the father Court wont recognize fathers Cal right to claim his child Bowers v. Hardwick o Court upholds the GA sodomy law as applied to private consensual acts b/w homosexual adults o At what level of generality is the issue framed? Issue of homosexual sodomy laws throughout hx o Blackmun Dissents What level of generality would he frame it? Right to be let alone and right to sexual intimacy Lawrence v. TX o Overturns Bowers o Interesting that precedent is overruled so soon after celebrating adherence to precedent in the Casey case Bowers was a much closer decision than Roe Sodomy laws have not been enforced since Bowers Bowers has not been cited since it was decided It looks like the Court made some mistakes in the decision in Bowers Incorrect historical decisions o The court says that in private places there is a substantive Cal right to engage in acts of sexual intimacy Gay Marriage o Distinguish from Lawrence Lawrence is about a criminalization, marriage is about affording a govt benefit This distinction was made when it comes to govt funding of abortion Lawrence is about a behavior within the privacy of the home, marriage is public & has effects outside the home There is a long tradition of both types of laws, BUT they said that sodomy laws were not historically enforced against consenting adults So its not as questionable of a tradition as with Lawrence 6
State interests: Are they stronger? (OConnor says yes) o How do we distinguish Loving? Right to interracial marriage based on substantive DP, not just on the equal protection Race and sexual orientation are 2 very different things Sexual orientation is not considered a suspect class Race is by birth, sexual orientation may not be o But it is also a choice not to pay child support (Zoblacki) and to commit crimes Loving says that marriage is a fundamental right because it is integral in survival Marriage is based on procreation How do we frame the issue? o One might be able to distinguish Lawrence v. TX but this other line of substantive DP cases (Loving, Zoblacki, etc) are harder to deal with Cruzan o Right to Die o Woman in a permanent vegetative state Her parents want to remove life support There is anecdotal evidence that the patient would want to terminate life support but there is nothing written down o State requires clear & convincing ev of her wishes to die in these circumstances (law upheld) o There is a fundamental right to choose treatment including removing a feeding tube But the state can require clear & convincing evidence Washington v. Glucksburg o Issue: is there a fundamental right to decide how to end your life? No fundamental right in this case w/ these facts o There is a distinction bw controlling the circs of your death and affirmatively acting to hasten your death No right to suicide so no right to assisted suicide o OConnor concurs She sees a distinction bw allowing a mentally competent person to decide to die and an incompetent person She says state interest in protecting the incompetent is strong enough to outweigh this individual interest Her understanding is that people who are terminally ill and suffering can be treated to eliminate the suffering o This is a questionable statement o Souter He is nervous that the state embraces this bright line rule to protect incompetents when there are people who truly choose to die But he defers to the states judgment (based on study in Holland) BMW v. Gore o This court recognizes a substantive DP right to be free of huge punitive damage awards that are not sufficiently related to the bad act o We want people in similar circumstances to be treated similarly Unequal application of the law Representation reinforcement theory o We are in this world where the court only protects certain interests 7
o When should court use its limited capital to police political branches? When there is reason to believe certain groups arent getting a fair shake The nature of the sanction has very important consequences in privacy cases. o Criminal sanctions v. Denial of subsidies Kelley o Cop challenging haircut rule o Law upheld bc the state had good reasons Whalen v. Roe o Private info has to be submitted to the state about drugs people are using legally o Court rejects privacy challenge State doesnt do anything with this info Good reasons for it: medical stats, LE purposes Youngberg o State has to meet minimum safety requirements if they commit someone to a state hospital Substantive DP DeShaney o State has no affirmative duty to a child they have evidence is being abused Court may have injured life & liberty but has not deprived them of it This is not like involuntarily committing someone to state custody Contract Clause No state shall pass any law impairing the obligation of contracts Ogden v. Saunders o Clause guards only against retroactive interference with Ks Bronson o A state can interfere with law of remedies, even retroactively, unless it is unrz Manigold o People by entering into Ks cannot estop the state from legislating for the public good Blaisdell o Depression era law gives a break to debtors by extending redemption period for mortgages upheld This is limited b/c relief is temporary & interest continues to accrue The C is living and these circs are extraordinary El Paso o Court wont apply K clause if there is an tolerable justification by the state for what is being done US Trust Co v. NJ o NJ issues bonds and promises that the proceeds of the bonds wont be used to subsidize RR travel. NJ repeals this promise bc they decide RRs are really important and need to be subsidized Court says the state went too far here The key is that the state is relieving itself of its own obligations This type of case requires a stricter test Allied Structual Steel o Co. sets up a pension plan that says that employees get paid a certain amt at 65 unless they liquidize 1st o State law: If a co sets up a pension plan and then closes their office in that state they have to pay all their employees pension even if they never were obligated to do that before 8
This law is struck down State is re-shuffling a K in a big way Court engages in balance Could the regulated person predict this regulation? o Court says no here
Exxon o Sometimes we wont find any operation of K law at all Generally applicable rules of conduct o How do we distinguish this from Allied? Court says Exxon is a generally applicable rule and its sole effect is not to interfere with contract rights The effect of the law on K rights is an incidental by-product There was also this type of distinction in privacy cases (criminal prohibitions v. subsidies) The court at least implicitly sees a diff bw employment contracts and purchase & sale agreements which may not be viewed as a K but as an instantaneous transaction Highly discrete exchanges are not going to be considered Ks under the K clause Procedural DP Steps to Analyze o For the clause to be triggered there must be a threatened loss of life, liberty, or property Is the loss actually a deprivation? Property interests can be defined by subCal law o If there is such a threat, has due process been afforded? Is the threat by the state? DP is dictated by Cal law Goldberg v. Kelly o Welfare termination case o There is a deprivation of a property interest Welfare entitlement is statutory so they had reason to rely & their interest had vested o Court requires a pre-termination formal hearing Roth o A non-tenured prof does not have a property interest in continuation of their job This prof only had a 1 yr contract Prof had no vested interest in employment for more than a year Perry o This non-tenured prof DID have a vested property right in continuation of his job because there is evidence of a de facto tenure program The University system encouraged him to rely on continued employment Evidence here is more clear that the college fostered his assumption that he would have continued employment Arnett o Federal civil service employee was fired w/ no hearing o Why was there a deprivation of property here? His interest in his job was more secure bc the statute said he could only be fired for cause Bishop v. Wood 9
o Cop is a permanent employee acc to employee handbook Fired with no hearing o Handbook doesnt identify the ONLY reason a permanent employee can be fired Indicates an at will employment K Substance rules over form when defining property interests o State cant just put language in statute this does not create a property interest Not being rehired doesnt deprive a person of liberty Wisconsin v. Constantineau o Court has said there is a deprivation of liberty when a statement is made unfairly ruining someones reputation Paul v. Davis o Police went around advertising that a man was a shoplifter but this is not a deprivation of liberty There is no Cal protection for reputation There must be damage to reputation PLUS damage to a more tangible interest Meechum o Prisoner is transferred to a much harsher prison with no hearing This is okay bc the state has the discretion to hold prisoners where they want to Vitek o Transfer of a prisoner to a mental hospital requires a hearing o There is an expectation that prisoners wont be transferred to mental hospitals People who get committed to these hospitals go there for cause Matthews v. Eldridge o Court says no right to a hearing when terminating disability benefits In welfare cases we knew that those people were totally dependent on the benefits b/c there is an income threshold, not true here
Takings Clause Has been incorporated Public Use Requirement: If the taking doesnt serve a public use the govt cant take it at all Just Compensation o Most takings cases are eminent domain cases Battle of the experts on FMV o Regulatory Takings Govt passes a regulation that reduces or eliminates the value of private property Penn Central v. NY Balancing act Purpose of historical preservation is very important Total Takings: no balancing required Permanent physical invasion is a taking o Loretto When the govt wipes out the entire value of the property (a total taking) o Lucas o Exception: if the taking is the result of pre-existing nuisance law because then the owner was on notice Nolan and Dolan o These are cases where the state conditions permits to do things with your property 10
o The condition must be related to the underlying purpose of the regulation Equal Protection Nor shall any state deny to any person w/in its jx equal protection of the laws Different levels of judicial scrutiny o Rational Basis Scrutiny Ordinary economic & social legis Is the classification that the govt has adopted rationally related to a legit state interest? o Strict Scrutiny Laws that involve outright racial discrimination Is the classification necessary/essential to achieving a compelling state interest? o Intermediate Scrutiny Cases involving sex discrimination The end must be important (bw legit & compelling) The classification must be closely tailored or substantially related (bw rational & necessary) Bolling v. Sharpe o P challenges racial discrimination in DC DC is not a state This is unacceptable discrimination & therefore it violates the 5th Am DP clause This is tricky because the 14th am has 2 separate clauses for DP and EP Railway Express o You can only have an ad on your vehicle if it is an ad for your own business o Court upholds this law Local authorities may have concluded that self advertising is not as distracting as ads for hire o Concurrence by Jackson It seems under-inclusive He thinks there is a particular problem with under-inclusive laws More likely to be arbitrary & politically motivated Over-inclusive laws are a problem as well because it effects people who arent creating the problem at all Jackson says legislature wont pass these laws because it pisses off the majority and it is politically bad Lee Optical o Douglas says that the legislature may engage in reform one step at a time In other cases the court doesnt stop here they go on to see if the step the govt has taken is rational Beazer (?) o Methodone users are barred from working for the transit authority o Over-inclusive: not all methodone users are unsafe o Under-inclusive: there are many other employees who are unsafe that arent touched by the law (alcoholics) General Rule: In practical effect the court will never strike down a law under minimal scrutiny o Except in USDA v. Moreno Hippy food stamp case Court applies minimal scrutiny AND strikes down the law 11
The only purpose was to punish hippies & this is not a legit state purpose
Murgia o Cops have to retire at age 50 Law upheld US RR Retirement Board v. US o Court lets workers with a current connection to the RR to keep double benefits, but cuts benefits to former employees even if they worked longer on the RRs This is a challenge under the EP component of the 5th am Law is upheld o Court says any law Congress made would discriminate and this way is as good as any other It is at least rationally related to the goal of equity in this context o Under minimal scrutiny it only matters that the lawyers can think up a legit state purpose, the real motive doesnt matter Willowbrook o EP violation b/c one person is singled out o Court will not consider whether there is ill will or not Logan o State creates a difference b/w claimants who receive a hearing w/in 120 days and those who dont; if the state schedules your hearing in 130 days, you lose out: unCal o It isnt an actual SOL, but it has the same purpose: to protect against stale claims In this case though, it is the defendant who can make the claim exceed the SOL Equal Protection: Race Strauder o States cannot exclude blacks from juries o Court says that both race & ethnicity are suspect classifications o Court suggests that the purpose of the 14th am does go beyond protecting blacks and racial classifications, it protects race-like classifications Korematsu o Japanese internment camps are Cal They said this was justified by the emergency & military needs This was a temporary rule o Extremely important state purpose outweighs the individual interests being infringed o This case validates a racial classification but nails down the idea that such classifications are subject to strict scrutiny Ignores less restrictive alternatives People are reluctant to adopt a per se rule that govt can never discriminate on the basis of race. Plessy v. Ferguson o Segregation of RR passengers o Court upholds this law b/c they say that states cannot be expected to eliminate all distinctions Blacks are not being kept off the train they get the same accommodations just separately Brown o Court does not overrule Plessy because of different subject matter: public education o When the 14th Am was passed there was no public education & education was not compulsory, so the framers didnt think of this issue o Court says separate but equal is a false premise o 3 Points 12
School context is critical to the courts reasoning in Brown This is a case about state law, but the court deals with DC in Bolling v. Sharpe saying it violates DP of the 5th am (begins reverse incorporation) Court expands this to almost all cases of EP law o If the rule applies to states under 14th it also applies to Federal Govt under 5th am Brown II: Was it okay for the court to leave the remedies up to local govts after finding such a huge violation of the C?
Loving o UnCal to forbid interracial marriage o This is still a racial classification & strict scrutiny applies o Animous toward a particular racial group is not a legit state purpose Palmore o State judges order that revokes custody from a mother who is now married interracially is unCal o This case gives a standard articulation of strict scrutiny Compelling interest: Best interest of the child Necessary classification: We cant cater to the lowest common denominator Racial classifications are presumed unCal Yick Wo o Everyone who operates a laundry in a bldg not made of stone must get a permit o The administration of this law violates equal protection Batson o When a prosecutor uses preemptory challenges to exclude blacks from juries it violates equal protection o Court eventually extends this principal to all cross-race preemptory challenges and to challenges by defense attys, in civil actions, and to challenges based on sex What if Bush #1 said he wanted to appoint a black person to the Supreme Court and so he appointed Clarence Thomas? o How do we distinguish Batson? This is purpose not motive What is the difference? Is there no racial classification when race is only 1 factor? This argument will be rejected We dont know the answer Is the state interest stronger here? Equal Protection: Gender Gender is a quai-suspect classification o Rational relationship test Gomillion o Discriminatory purpose is a bad thing Palmer o Very hard to determine what the purpose is Cant the legis. just go re-pass the law w/ a better purpose? Washington v. Davis o Cops have to pass a test to get hired& Black applicants fail at a higher rate than whites do 13
o Not unCal Not meant to discriminate agst blacks Fair test Doesnt trigger strict scrutiny o An invidious discriminatory purpose may be inferred from the totality of the circs including the fact of a discriminatory impact But this particular law does not have a discriminatory purpose o What facts are important to the court here? All applicants take the same test This test is widely used (Federal civil service uses it) DC chose this test to be uniform with other areas not to discriminate In other areas blacks are passing the test: Shows the test itself isnt inherently racist Nature of the test It is meant to test communication skills & it is important for cops to communicate effectively This police dept has made affirmative efforts to diversify its employ o Stevens concurring: The line bw discrim effect & purpose is murkier than the majority suggests Arlington Heights o Factors that tend to show discriminatory purpose o How much discriminatory purpose do you have to show? Hunter v. Underwood o All persons who engage in crimes involving moral turpitude cannot vote o Court finds a discriminatory purpose Framers had a zeal for white supremacy Did the GA law providing for a confederate flag violate EP? o Federal court found that discriminatory purpose motivated the passage of the law in 1956 but it was not the only factor o FN 1 in Arlington Heights: Burden shifts to GA to show they would have passed the law w/o the discriminatory purpose GA cant show this bc 50 yrs have passed o The court found that resistance to Brown motivated the adoption of this flag But it didnt force the state to take the flag down bc The flag has no discriminatory impact Purpose is not enough on its own Facial discrim or discrim intent is necessary to apply strict scrutiny Rogers v. Lodge o Elected officials put in place an at-large voting system: UnCal 62% of voters are white & 38% black: Whites select all the commissioners b/c there are no districts o Black voters have to prove purposeful discrimination Disproportionate effect is not enough under Washingtton v. Davis District Court finds that there IS a discrim purpose Effect is evidence of the purpose Affirmative Action o 1960s: School Desegregation 14
Green: Court can enter an order forcing desegregation by establishing numerical requirements for each school (quota system)
o Bakke Medical school reserves a no. of seats for minority students b/c they are historically underrepresented in the medical field: UnCal Powell (writes for himself) Achieving diversity IS a compelling state interest BUT the program must be narrowly tailored o This means no quotas/set-asides o Race can instead be considered as a factor in admissions nd o 2 generation of Aff. Action cases involve govt contracting Fullilove Govt sets aside a no. of contracts for minority cos.: This is okay Court wont apply strictest scrutiny bc it is benign discrimination Croson With respect to a local minority business program court will apply strict scrutiny o This program is unCal Richmond has not proven the particularized past discrimination that gives rise to a compelling state interest to remedy past discrimination Court applies strict scrutiny here Strict scrutiny is now applied to all affirmative action cases o Gruter UM law school aff. Action case Favors blacks, Hispanics & native americans Strict scrutiny??? Why would Thomas apply strict scrutiny? He feels that affirmative action doesnt actually benefit racial minorities What about FN 4 of Carolene? Court should protect discrete and insular minorities o This seems to argue against strict scrutiny here Court upholds this program o Gratz Court strikes down UMs undergrad affirmative action program The points system was not narrowly tailored o Mathematical quota system o Applicants are not given individual consideration Compelling state interest: educational diversity Must take into acct the ways in which students will contribute to diversity of the institution Court doesnt place much emphasis on the no. of points, but the mathematical system The reason educational diversity is important is not so minorities get good jobs, it is to expose all students to other races, ethnicities, etc. o Wygant Lay-offs of public school teachers: considered race above seniority when laying people off 15
This is UnCal State says the interest is minority role models: court says this is not compelling This is about taking away a benefit that has already been conferred on the nonminority teachers So to disadvantage them in this way is more of a burden than in law school admissions cases o Remember that Court is nervous about numerical systems of any kind Shaw I Hunt v. Comartie Equal Protection: Sex Discrimination Bradwell 1873 o Upheld a law keeping women from being lawyers Goesaert 1948 o Upheld a law restricting women bartenders to bars owned by their husbands or fathers Reed o Law preferred men over women when appointing administrators of estates This failed a rational basis test (Court said sex is not a suspect classification) Frontiero o Army men are presumed to have dependents but women have to prove they have dependents in order to get dependency benefits for their spouses This law is unCal Govt hasnt shown that this discrimination will save the Govt money B/c they now have to spend money on investigating dependent status Craig v. Boren o Law that women can buy 3.2% beer (near-beer) at 18, but men have to be 21 This is unCal o Adopts intermediate scrutiny for gender o Rehnquists Dissent He doesnt like that the court adopts intermediate scrutiny It might make sense to apply heightened scrutiny to laws that discriminate against women, but not laws agst men Why do we apply strict scrutiny to race in the 1st place? o 14th amendment was directed at racial issues o Non-whites are a statistical minority o The rationale of Carolene FN 4 Discrete & insular minorities o Race is something you are born w/ and cant change o There are no significant biological differences b/w the races In some cases, the difference b/w the sexes biologically may justify the differences in legal treatment o However, it seems like these differences would affect the strict scrutiny test so that if the law was significantly related to those differences it would pass the test Michael M o Law of statutory rape only punishes men This is Cal: Passes a sharper rational basis test Court says there is no proof that a gender neutral law would work as well or better o This law IS based on the biological differences b/w men & women 16
Girls are deterred from sex by pregnancy o This is a plurality opinion US v. VA o All male military college in VA (called VMI) wont admit women School uses adversative teaching methods This is unCal o New test: Exceedingly persuasive justification This test is just as soft as the other tests o Scalias dissent says this decision makes all single-sex education unCal Majority doesnt hold that same sex school are per se unCal Benign discrimination o The majority race is disadvantaged Should we apply strict scrutiny here? Alienage: Legal Alien cases o When the federal govt discriminates the court is more deferential to legislative decisions bc the C gives Congress the power to decide haw to naturalize aliens but state doesnt have this power We want Congress to decide how aliens are treated, because it effects our internatl relationships o Court applies strict scrutiny to state regulations except when the regulation is bound up with functions of the state as an entity (political function exception) It is okay for states to require that DAs be citizens Foley (state troopers) In Re Griffin States cant keep aliens from being attys States cant prevent legal aliens from being notary publics bc it is a ministerial job Ambach State can say that public school teachers have to be citizens Ambach specifically distinguishes private schools & that law only applied to aliens who were eligible for citizenship but didnt apply State judges can be required to be citizens Nonmarital Children o Quasi-suspect classification o Why not apply strict scrutiny to all these laws? Court wants to defer to state legislatures because they know more about the issues of intestate succession and other basic rules of property law There is a fundamental diff bw non-marital children & marital children when it comes to intestate succession o Trimble and Lalli Court strikes down a law prohibiting intestate succession from fathers by illegit kids in Trimble In Lalli the court upholds a restriction providing that only illegit kids who have been recognized legally by the courts while the father is alive can take under intestate succession Trimble was a complete prohibition Lalli makes more sense because they dont want to complicate intestate proceedings with unknown children coming forward and making claims o Gomez v. Perez 17
TX law denies child support completely to nonmarital kids: This violates EP o Mills State cant cure the problem by permitting child support claims and then put a 1 yr SOL on the action 1 yr is not long enough, Clark says 6 yrs isnt long enough either Any difference b/w limit on legit kids & illegit kids would seem to be unCal b/c there is no link to a substantial state interest Cleburne o Denial of a permit to build a home for the mentally retarded o No strict scrutiny here There are functional differences for making these distinctions Court says that they have political power because there are groups looking out for their rights Court also notes that we have a lot of laws to help & protect them so they dont need judicial protections This is also an immutable characteristic They have been historically discriminated agst o This denial of the permit fails rational basis test The state doesnt require a permit for any other kind of building Romer v. Evans o Colorado Cal amendment saying that localities cant write laws protecting homosexuals o Court strikes this down o Rejects states claim that this was to make sure that homosexuals didnt get any special benefits o Legit Goal: accommodating private choices about associations o Means are inappropriate The amendment is preventing localities from choosing whether or not to associate with gay people If that is really your goal just create an exception to EP laws for people who have true Equal Protection: Fundamental Rights/ Interests Aspect Skinner o State restriction in terms of who is subject to sterilization Right to autonomy & bodily integrity but analyzed under EP Eisenstadt o Focuses on unequal application of a rule: EP analysis Harper o Key Right to Vote case o Poll tax of $1.50 on residents over 21 is unCal o Court doesnt find a Cal right to vote Court says that once the state grants a right to vote to the electorate they must grant it equitably The do call voting a fundamental right o Wealth & voting have no rational relationship to each other Overturns Breedlove to the extent that it allows for a poll tax o Can states prevent people in prison from voting? People chose to be criminals knowing that it results in being disenfranchised 18
There is a criminal trial before this right is taken away o We are allowed to say that you have to be a certain age to vote There is a relationship between age and a persons ability to vote o Court applies heightened scrutiny in this case, not just rational relationship scrutiny Kramer o Strikes down law requiring that to vote in school board elections you have to pay property taxes Reynold v. Sims o States have to reconstruct their electoral systems to comply with one-person one-vote This is one of the most fundamental function of the states o Court distinguishes the US Senate, because really peoples votes are not equal there Lucas o The mal-apportioned legislative scheme was voted on by the state voters This was unCal too o The majority cant disenfranchise the minority Bush v. Gore o Because of the application of different vote counting procedures, one person one vote is being violated Shaw v. Reno o Challenge to a voting district is based on the notion that the districts were drawn to segregate race: This violated the 14th amendment o It was shown that race was a predominate factor in drawing the district lines Motivations should be population & geography Davis o Court can envision the possibility of the successful challenge of a districting that discriminates too much on the basis of poltical party BUT this traditionally IS the motivating factor Vieth o Court reconsiders Davis o Conservative justices say this is a political question & courts should not get involved o Liberal justices say this is a big problem o Kennedy casts the critical 5th vote Suggests there may be a neutral principle but cant think of what it would be yet Read this over bc I dont really get what he said o This doesnt involve the denial of the right to vote or the dilution of someones vote Involves voter segregation in a way that cause Cal problems Griffin v. IL o Indigents must get free transcripts to use in appeals of criminal convictions o There is no Cal right to an appeal But once the state provides this right, it must be provided equally o The unCal behavior is the SELECTIVE denial of the appeal Douglas v. CA o State must provide a lawyer to indigent convicts for appeals as of right Ross v. Moffitt o No free counsel after 1st appeal as of right Boddie v. CT o Court strikes down the application of filing fee to this indigent who is seeking a divorce 19
o DP problem State has a monopoly on divorce Marriage is fundamental This fee denies freedom of association w/ no opp to be heard at all Kras o DP doesnt require the waiver of fee for indigents seeking bankruptcy This is not fundamental like marriage & divorce o This is not the only way to solve financial problems People can enter into private agreements w/ creditors Ortwein o Fee to appeal a welfare revocation is okay These people have already been heard once This is not a criminal case MLB o This involves an appeal of a termination of parental rights State must waive the fee requirement for indigents This is a fundamental interest (parenting) o The stakes are high in this case This is a termination of parental rights, not just a loss of custody o Note Thomas dissent Draws on WA v. Davis to argue that this Griffin & Douglas are all wrong Rodriguez o TX paid for public schools with local property taxes So that areas w/ low property values had poorer schools State subsidized some poor areas but not significantly o Supreme court applies rational basis test & upholds the law o Both prongs are used here Suspect class analysis Fundamental rights analysis o Suspect class This law discriminates against students who lives in areas with low property values Not a suspect class Wealth discrimination is not enough to create a suspect class o Fundamental Rights Some interests such as voting, procreation, interstate migration, the court has found to be fundamental Dissent by Marshall Fundamental rights are fund. Because of their relationship to Cal rights o 1st amendment right to free speech requires education if on is to use it effectively Education is closely related to the right to vote (which is also fundamental) C doesnt guarantee effective speech or informed voting Even if education is fundamental it isnt denied here, just limited Minimal requirements are met here Plyler o TX charges illegal immigrant children tuition to go to public schools This is struck down under strict scrutiny even tho this is not a suspect class 20
This is a quasi suspect class o Why is strict scrutiny applied here? Impact on society is high and children are suffering for something that is not their fault o How do we distinguish Rodriguez? Rodriguez is based on district wealth, not individual wealth Rodriguez is not an absolute deprivation o FN 3 p. 874 o This is an absolute deprivation of education This will create a discrete & insular underclass as these children grow up without education o Blackmun & Marshall say that food & shelter are not as closely tied to Cal rights as education o What if the state denied emergency medical care? Memorial Hospital says this is like Welfare, a basic necessity of life o What if Congress passed a law permitting states to charge tuition to charge tuition to illegal immigrants? Congress has the express & broad power to deal with immigration & naturalization But Congress cant give states permission to violate the 14th am Interstate Migration is a fundamental right o Dunn v. Blumstein Invalidates a 1 yr residency requirement on voting Strict scrutiny: unCal Fundamental interests in voting & interstate migration Interstate migration is a legal choice that we have the right to Some cases suggest that a 50 day requirement would be okay What about a 1 yr residency requirement for divorce? This is okay because they dont want states to become divorce mills These people dont totally lose their right to divorce o They can still divorce in their old state o Saenz v. Roe CA limits new residents welfare benefits to the amount they received in their old states for the 1st year they are in CA Right to travel This cant be deterred or interfered with There are 3 aspects of this right Privileges or Immunities Clause of the 14th Am protects the right to move b/w states They also talk about the Citizenship Clause of the 14th Am o Starns v. Malkerson Summary affirmance of 1 yr requirement for instate tuition Court didnt write an opinion but this is still valid precedent This was decided before Saenz But the Saenz case references this type of case & talks about portable benefits like education & divorce o Martinez No free education for people who just move to the state for the education State Action 21
Protections of the US C are directed at the actions of govt The court has not developed different state action rules in applying different clauses of C the 14th Am o Section 1 only applies to state action o Congress cant implement it by making a law that regulates private action Marsh v. AL o Privately owned town convicts a Jehovahs Witness of trespassing for handing out religious material in the town o Court doesnt decide this is state action just b/c is prosecuted under a state law Even tho the town is privately owned, the private corp is performing a public function and so this is a state action o Court finds that the s 1st amendment rights are more important than the rights of a property owner: Preferred position Hudgens v. NLRB o Allowed a mall to exclude striking protestors Look for entanglement with the state Public function doctrine o Doesnt stand for much beyond the world of privately owned towns o Jackson Operation of a utility (electric co.) is not a public function o Flagg Bros Exercising a lien & seizing property is not a public function White Primary Cases p. 897 o Political parties in south are so powerful that their primaries decide who gets elected o Political Parties are private entities Supreme Court says this is a public function b/c of voting Important govtal interest in allowing real self-govt Shelley v. Kraemer o Private contracts: racially restrictive covenants entered into by neighbors These Ks are enforced by the govt o Court finds significant state involvement in the enforcement of these covenants o How do we distinguish this from the case of a protestor being arrested by the state? This is about a racial discrimination which is at the core of the 14th amendment Court emphasizes that in this case you have a willing buyer & a willing seller Burton o Coffee shop operating in a public parking deck Excludes black customers o Court finds a state action here Moose Lodge o Private club excludes black guests o No state action here, even though the state had granted a liquor license to the lodge What distinguishes Burton & Moose Lodge? o Court found that the state had control over its lessors in Burton that it did not have in Moose Lodge o Burton has chosen to open its doors, ostensibly, to the public They dont require membership o Court distinguishes by the actual facts & circumstances of the case 22
Land & building were publicly owned The parking deck was designated for public use Cost was taken on by the city: construction & maintenance Landlord-tenant relationship gave state control over renters Symbiotic relationship Rent paid to state funded the public facility Parking deck displayed the state flag Looks like state is endorsing the discrimination
CBS o Burgers Plurality says no symbiotic relationship b/w govt & a licensed broadcaster Jackson v. Metropolitan Edison Co o s electricity was cut off by utility o Utility is not a state actor o Encouragement/Authorization strand of state action doctrine o If this was a state operated utility would she win? She would have to show that she had a vested property interest in continuing electricity Legitimate claim of entitlement: Look at subCal law Could the electricity be cut off w/o cause? No, You had to stop paying So it seems that she was deprived of property and is therefore entitled to due process In Pollack the Supreme Court suggested that there was state action when music was piped into buses o In Pollack there was a govtal investigation and hearing to decide whether there should be piped in music on the bus Rendell-Baker o Private school that is primarily funded by the state fired teachers o Not a state action They dont want all govt contractors to be deemed state actors This seems to allow the state to side-step Cal requirements by privatizing govtal functions like schools NCAA and Brentwood o NCAA not a state action NCAA & State were not working together, they were adversarial In Brentwood the regulatory body as a whole is regulating one member and public entities are on the same side (bottom of p. 925) Flagg Bros o UCC allows self-help attachment of property in debt cases Court says this is not a state action Enforcement Clauses Enforcement clauses of civil war amendments give Congress more power Sec. 5 of the 14th Am o 42 USC 1983: Civil Rights Act Provides a cause of action for interference w/ peoples rights Require act to be under color of law Roe v. Wade was a 1983 suit Sets forth a remedy: injunction, compensatory damages 23
Remedy is a way of enforcing rights: Marbury Can Congress itself identify substantive rights that go beyond the rights that the court has found in the 14th amendment? SC v. Katzenbach o Voting Rights Act of 1965 Outlawed literacy tests in certain states including SC: states with a long hx of racial discrimination in its voting systems Congress passed this under 14th & 15th amendments even though the Court had held in the past that literacy tests dont violate EP o Court upheld this law anyway Because of a specific finding of past discrimination in these states by Congress Literacy tests would be unCal if they had a discriminatory purpose either in their inception or their application o Congress can redefine a right & increase substantive protections as a way of countering in a prophylactic way, Cal violations City of Rome v. US o Section 5 of Voting Rights Act of 1965 Congress says that all voting system changes in covered jxs (those with a hx of racial discrimination) have to be cleared by the DOJ DOJ shall not approve changes to voting systems, regardless of pure purpose, if the change has the effect of cutting back on the right to vote based on race o Court upholds this law Quote p. 961 (yellow hi-lite) Katzenbach v. Morgan o Alternative holding: Brennan suggests that Congress can expand Cal rights thru section 5 of 14th am City of Boerne o Congress CANNOT expand substantive Cal rights o RFRA changes the level of scrutiny applied to generally applicable laws under the Free Exercise Clause In effect overruling Smith which applied a low level of scrutiny to such laws o Court finds this law unCal o Congress power under section 5 Make specific findings about past discrimination & remedy them o Court adopts congruence & proportionality test (over/under-inclusiveness) The relationship b/w this law and actual intentional discrimination targeted by the 1st amendment is not tight enough o This type of action offends federalism, which is also an important American value o It also offends separation of powers: the judiciary is the one who interprets Cal law, it is not Congress job Congress passes a law saying that state employees can sue states that violate ADEA (a federal antiaging discrimination act). o Why cant Congress just pass this under the ICC? It violates sovereign immunity of 11th Am Seminole Tribe and Alden v. Maine 11th amendment trumps ICC o Congress cant expose states to monetary liability 24
o The exception to this is that Congress can expose states to monetary liability under section 5 of the 14th am Fitzpatrick 14th am trumps 11th am o Kimel This is unCal Age discrimination is only subject to a rational basis test ADEA applies a higher test This law targets more than unCal behavior, just like RFRA FL Prepaid o A general cause of action for any patent infringement by states isnt proportionate to unCal infringements No proof that states infringe on patents at all much less in an unCal way Hibbs o Family Medical Leave Act Any employee is entitled to a 12 wk period of leave to deal with a sick relative w/o risk of being fired Any employer who violates this is subject to monetary damages o This law can be applied to private employers under ICC o This law can be applied to the states also because it deals with a hx of discrimination agst women in the workplace o Heightened scrutiny is applied to gender discrimination under the 14th amendment This means it is more likely that the discrimination that exists is actually unCal Morrison o Violence Agst Women Act is unCal o No congruency Creating a cause of action against the perpetrators of violence doesnt discourage discrimination against women by the states Congress is not targeting the state actors who are the only possible wrongdoers under the 14th amendment This also offends federalism Jones o Federal law prohibits private discrimination on the basis of race in the sale of property This is Cal 42 USC 1982 Court says that Congress intended this law to apply to private action as well as state action th o 13 amendment: substantive protection given by this amendment is against both state and private actors The inability to purchase real property because of your race is a badge & incident of slavery Is badge or incident of slavery still the right inquiry after City of Boerne or should we be looking at congruency & proportionality with violations of the 13th amendment? 13th amendment has a different hx & focus than 14th amendment o Maybe the enforcement clauses should be interpreted differently Section 1983 has been interpreted not to abrogate state immunity o State is not a person under 1983 25
o A city is a person under 1983 If the city has a customary practice that supports the action of the individual then you can sue the city Cities are not protected by 11th am Free Speech 1st A principles depart radically from the constitutional text. 1st A says Congress shall make no law, but over time the Court has applied the protection of the 1st A to other govt officials, including on the federal level Black written in qualified seemingly absolute terms make no law no means no. In real life, even though Black liked to make a point of this absolutism, he would cheat Why protect free speech? o Personal autonomy o Marketplace of ideas To help voters make informed decisions in a democracy o Safety valve Society at large will be more willing to accept decisions adverse to them if theyve had their say and can blow off steam in a meaningful way. o Safeguard against govt abuse o Value of toleration Alien & Sedition Act o Prosecution of Jeffersonians by Adams administration under speech controlling federal criminal statute. o Election of 1800: Adams lost. The people were uncomfortable with this effort to infringe on free expression rights. Constitution was given life not through Supreme Court but through people voting Schenck o published a flyer that spoke against govt programs Criticized the draft Called on people to act you must do your share. o Govt charged w/ conspiracy to cause insubordination in military and obstruction of recruitment, which is subject matter of Espionage Act o Does this flier call on people to not register for the draft? No. Obvious effect of the flyer is to get people to not register for the draft o Holmes says that in the end this behavior by creates a clear and present danger of bringing about substantive evils that Congress has a right to prevent (obstruction of the draft). Abrams v. US o Conviction under 1918 amendment to Espionage Act, which proscribes conspiracy to urge curtailment of production of war materials w/ intent to hinder war against Germany. o Is this circular more inflammatory or less than one in Schenck? Seems more explicitly calls for action to stop producing weapons. Response must be a strike. Other commands of duty in this writing. o Court upholds the conviction, but now Holmes dissents. o Why, according to Holmes, should there be a different result here than in Schenck? Greater chance of disruption of military effort in Schenck This statute requires specific intent to hinder war with Germany. This intent was not proved intent was to prevent intervention in Russia. Dennis v. US 26
o What were s were advocating? o Majority thinks this is very threatening given context of Cold War and threat of Communism, so clear and present danger was sufficient. o Uses Hand test: whether gravity of evil discounted by improbability justifies imposition on free speech. o Balancing Court here is moved by considerations that there are limits on freedom of speech but very powerful public interests on the other side guarding very security of the nation from a potentially catastrophic revolution. Yates o This was advocacy of ideas and not advocacy of action o Just saying go attack capitalism has a high level of generality what does attack mean? As we move from more general to more specific we have things like go kill X. This is solicitation as a crime in criminal law. o Point is that none of us is clear when the line is crossed gray area. But it is a line the court draws b/t advocacy of a crime and advocacy of an idea Theme: there are categories of speech that are unprotected, even tho they concern political subject matter o Incitement is one of these categories o Threats Fighting words Chaplinski o Court reads the statute narrowly so that it is Cal and upholds the conviction o Damned Fascist = fighting words Court is concerned b/c this is directed at a single person If he had said that this about the govt in general it would probably be protected Would these really inspire the Marshal to fight the D? Are we talking about the average person or the average cop? Cantwell v. CT o This prosecution was overturned o Religious speech o This D did not resist, he left when he was asked to o There was no face-to-face insult D was playing a record Gooding o Conviction reversed o D says to a cop White SOB, Ill kill you! o Court said the statute was overbroad on its face so it is UnCal Never reaches the issue of whether this particular speech was protected Rosenfeld o Used mother fucking 4 times at a school board meeting Are these fighting words? Not face-to-face Lewis o Called cops God damned mother fuckers for arresting her son o This was not directed to one person, but a group of cops o These words at this time were not as incendiary as facist in the 1940s Hostile Audiences 27
Terminello o A racist speaker denounces a crowd as snakes and slimy scum Conviction is reversed bc of Bad jury instructions Fighting Words? No This is not a face-to-face insult o Is this speech likely to cause a riot? Balancing b/w danger & freedom Causing unrest is not enough Feiner o Cops arrested a speaker on a street corner after a member of the crowd threatened to remove him if the cops didnt Conviction upheld Cops asked him to leave & he refused & thats when they arrested him They arrested him for disobeying orders not for speaking o Dissent: Cops should have protected the speaker from the guy who threatened him, not arrested him or asked him to leave: hecklers veto Edwards o Reversed conviction for breach of speech o Students protested racial discrimination No hostile audience proof here This was a peaceful expression Cohen v. CA o D wears Fuck the Draft jacket at a courthouse Convicted of disturbing the peace Reversed o Not fighting words Not directed at 1 person o Not a hostile audience Some people may have been offended but they could just look away o Court says this is not obscenity o Not incitement He doesnt suggest that anyone break the law o So then the court turns to the potential govt interests for regulating this type of speech Captive audience Govt may have an interest in regulating speech in public courthouses But the statute applies to all locations o We should allow the purest form of expression o We should allow expression that fits the personality Libel NY Times v. Sullivan o Paid ad criticized govt officials in Montgomery, AL for being racist o Public officials need to be criticized To succeed in a defamation case they must prove actual malice (knowing falsehood or reckless disregard for the truth (which is interpreted narrowly)) Conscious awareness that the statement might be fault & actual serious doubt o Public figure must prove actual malice to recover any damages o Private figure on a public matter 28
Must prove actual malice to recover punitive damages Must prove negligence to recover actual damages o Private figures on a private matter Malice is never required (even for punitives) But court never clarifies what they do require Negligence? Strict liability? Unprotected Speech o Incitement, threats, fighting words, hostile audience speech (maybe), and defamationall of these are subject to limitations. Hustler v. Falwell. o Court says it didnt have actual malice. Obviously, this statement/picture was not meant to assert any truthful fact about the Rev. Falwell. HYPO: What if you had a situation where prominent figure, Miss America, goes into confessional and confesses to priest that she engaged in adultery. Priest goes into church and yells Miss America is adulterous. o This is a true statement about a pulic figure o There also may be a separate cause of action under state tort law for interference with privacy of Miss America. There are post-NY Times cases that deal with the intersection of the right of privacy & free speech. This is an area of law that is quite unsettled. N.Y. v. Ferber o Child pornography, even though not under definition of obscenity, is another form of unprotected speech. o Strong governmental interest in not having juveniles exploited by adults and point in positions where permanent harm can be done to them. o Court reasons that there is a very low value to this type of speech. o The Court also notes in this context that there are alternative ways to engage in this type of speech----using non-children who look like children. Obscenity o For a long period of time, it was viewed as archetype of form of unprotected speech. o Court has consistent held that obscenity is unprotected, and it has never retreated from this view. o A person cannot be prosecuted for viewing obscenity in the privacy of his home. Stanley v. Georgia Does not apply to kiddie porn You see first amendment interests merging with substantive due process interests. Test needs to be narrow o Test for obscenity should not focus on most depraved, most impressionable person, it should focus on the average person o Courts should look at contemporary standards which may evolve. o We should look at the material as a whole. o Roth: Whether, according the average person, as a whole is there an appeal to the prurient interest? Has to be erotic Memoirs v. Mass, o Obscenity is present only if: 1) the dominant theme of material as a whole appeals to the prurient interest 2) material must be utterly lacking in redeeming social value or significance 3) material must be patently offensive. 29
P. 1102 & 1104. Court throws out Roth and Memoirs test. o 1) Whether average person applying contemporary standards, taking the work as a whole, appeals to prurient interest o 2) Whether work depicts, in a patently offensive, way sexual conduct specifically designed by state law o 3) Work, as a whole, lacks serious artistic, political, and scientific value. Focus is on community standards, so juries should decide what is obscene Jenkins v. Georgia o Involved the film Carnal Knowledge (real film, not porn). This is not obscene. o The vast majority of sexually related speech is not obscene. Some of the recurring concepts: o 1) overbreadth o 2) vagueness o 3) prior restraints o 4) overinclusiveness, underinclusiveness, less restrictive alternatives. o 5) generally applicable rules of conduct o 6) idea of public forum o 7) content discrimination. Overbreadth o In some of its application, it criminalizes protected speech. o Even if defendants own speech is unprotected & state could regulate it, were going to let this person argue that the statute covers protected speech too, and if the person can make such a showing, the person gets off, even though their speech is unprotected o Gooding Fighting words case. Court says legislature/court did not narrow the statute enough. The speaker in Gooding, probably using fighting words, gets off b/c he, in effect, argues the case of one uttering protected words. o Were worried about chilling effect of very broad statutes on debate. o Drawbacks of Doctrine 1) Court can be seen as deciding hypothetical cases. 2) It may invite litigation. Anticipatory disputes as people jump into courts and facially challenge statutes. 3) Most important, people who did really bad things get off. People who engage in unprotected speech get off. o Broadrick v. OK puts the brakes on the overbreadth doctrine. Requires substantial overbreadth. o Osborne v. Ohio says the statute can be interpreted to just cover unprotected speech & this will solve the overbreadth o Mass. v. Oakes indicates that a legislative narrowing of the statute doesnt cure the overbreadth problem retroactively. o Ferber, the child porn case, illustrates Broadricks substantial overbreadth requirement. Modifies Millers test: 1) no requirement for appeal to prurient interest 2) no requirement that material be patently offensive 3) dont look at work as whole Vagueness o Vagueness is not a doctrine limited to the first amendment context. o To determine whether statute is vague, look at judicial interpretation. 30
o Not sure whether you can facially attack a law for being vague Probably not if your behavior obviously violates the statute o Finley Very different application when discussing government subsidies versus government punishment. It is simply not going to apply a vagueness limitation in this context. Prior Restraint o One form is the judicial injunction. o Another context is the licensing cases. o Near v. Minnesota o Sometimes prior restraints are fine. A newspaper can be enjoined from publishing the times and places of troop movements in a war environment. There is a powerful state interest that trumps first amendment interest. o Judicial gag orders: Nebraska Press Assn. o Freedman v. MD Court strikes down MD censorship regime. Court says state regime must put burden on the censor rather than film distributor. Judicial determination is necessary to prohibit the future showing of the film. It has to be a determination made speedily; justice delayed is justice denied. o Lovell v. Griffin The law requires permission from city manager to distribute literature of any kind. UnCal o Lakewood v. Plains Dealer City might set up a licensing scheme, but it has to have some meaningful objective standard. Here, decisionmaker is give wide open discretion. Court says that creates too big of a risk of discrimination based on content. Content Discrimination. o Police Department v. Mosely Ban on picketing by a school, but labor picketing is permitted. Supreme court says this creates a huge problem. Nervous about government picking and choosing between forms of speech. o Types 1) viewpoint discrimination (Republicans can speak but Democrats cannot) 2) subject matter (example in Mosely) 3) form-of-expression (Cohen) In testing whether state laws violate first amendment, courts will engage in means/ends analysis. Erznoznik. o Law prohibited showing nude scenes on outdoor movie screen o City of Jacksonville offers 3 justifications for the law: 1) protects people from watching obscene material (captive audience) Court says people can avert their gaze 2) protects minors against this material Law is overinclusive b/c it doesnt make sense to shield minors from all forms of nudity 3) public safety (driving distraction) 31
Law is underinclusive. There are all kinds of scenes that might distract a driver. Less Restrictive Alternative Analysis o Schneider Local prohibition on handing out leaflets Total Medium Ban Courts look very closely at these Purpose: to minimize littering Alternative: Make littering illegal o Martin Local prohibition on door-to-door bell-ringing Total Medium Ban Purpose: to protect residential privacy Less restrictive alternative: let people put up no soliciting signs OBrien o There is a difference bw speech & conduct Burning a draft card is expressive conduct Just because its speech doesnt make it automatically protected o Once they deem it to be speech they engage in balancing of individual rights against the government interest (OBrien test p. 1205) Is the govt action w/in its Cal powers? Does the law serve a govtal interest? Is the purpose of the law unrelated to the expression of ideas? Is the incidental restriction on 1st amendment no greater than is necessary in the furtherance if that interest? o Court finds that the govt has a substantial interest in protecting draft cards Supreme Court wont examine the motives of Congress in deciding Cality If the purpose was clear enough Coenen thinks the court would strike it down under the 3rd prong of the above test TX v. Johnson o Flag burning is protected speech o This law does not prohibit ALL flag burning You can burn the flag to dispose of it Prohibition is not unrelated to expression The 2nd interest the govt cites is related to expression: they want to preserve the message that the flag stands for Because of this type of purpose the most exacting scrutiny applies There is a case saying that people have to be allowed to wear military uniforms in protest Content-neutral/Generally applicable rules of law o Branzburg v. Hayes A grand jury subpoena requiring a reporter to disclose a confidential source Court upholds the subpoena: This is a generally applicable law unrelated to 1st amendment interests th o 4 amendment: govt can search a newsroom just like anything else if it has a warrant o Cohen Reporter promised to keep a source confidential & breaks the promise Source claims promissory estoppel Reporter claims a 1st amendment defense 32
Court rejects this defense b/c estoppel is a generally applicable law o Court doesnt apply the OBrien test Anti-Discrimination Laws o Barnett School cant require students to salute the flag o Maynard Live free or die license plates State cant force people to display this message o Hurley St. Pattys Day Parade wont permit a gay rights group to march and carry signs in the parade Parade wins They have a right to decide what messages to allow in their parade State cant force them to express this message o Jaycees Had to allow women Couldnt show how including women negatively affects their purpose Strong state interest in eradicating sexism o Dale Boy scouts can exclude gay scoutmaster in violation of state anti-discrimination law RAV o Cross Burning o State Supreme court said the statute applied only to fighting words o Even with this narrow reading the US Supreme Court says this law is unCal o This law singles out a particular type of fighting words Discriminates against fighting words directed at race, color, creed, religion, or gender Also specifies cross burning & swastikas o Fighting words are unprotected speech But you cant prohibit some types of fighting words and permit others Content discrimination is bad even as applied to unprotected speech o Very Reason Exception State can make laws directed at degrees of unprotected speech When the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable the discrimination is allowed Ex: VA v. Black: Cross burning with the intent of intimidation is illegal This is okay because cross burning is a particularly bad type of threat o 2ndary Effects Exception Another valid basis for according differential treatment to even a content-defined subclass of proscribable speech is that the subclass happens to be associated w/ particular 2ndary effects of the speech so that the regulation is justified w/o reference to the content of the speech o Generally Applicable Laws o Strong Govt Justification Court finds that there is a compelling interest in this case but says this law is not rz necessarily It seems that the law is too narrowly tailored o We can cure the problem by punishing MORE speech 33
Unprotected Categories o Fighting words o Threats o Incitement o Most libel o Obscenity Wisconsin v. Mitchell o Enhanced punishment for hate crimes: Cal Dawson v. DE o Govt enhanced the punishment of the D because of the Ds membership in a white supremacist org. This is unCal Violates his right of associa...