Levels of Constitutional Scrutiny Rational Basis Scrutiny - Law must be rationally related to legitimate govt purpose Intermediate Scrutiny

iny - Law must be substantially related to important govt purpose Strict Scrutiny - Law must be necessary to compelling govt purpose

3 levels of review (1) Strict Scrutiny most exacting high standard

Classification/Int erest Suspect Classes -Race -National Origin -Alienage*

Ends Objective of a law Compelling govt purpose (really really important ) Govt must have truly significant reason for discriminating Important govt purpose Need not find that the purpose is compelling Legitimate govt purpose Need not be compelling or important, just something the govt may legitimately do

Means How do you do it? Necessary Narrowly tailored Cannot achieve through any less discriminatory alternative Means substantially related to ends

Burden Govt

(2) Intermediate strict but not as much as strict

Semi/Quasi Suspect -Gender -Non-Marital Children All laws not subject to strict/intermediate -Disability -Age -Wealth -Sexual Orientation

Govt

(3) Rational Basis Minimum level of scrutiny

Rationally or reasonably related

Challenger Enormousl y deferential to the govt

Equal Protection Framework: 1. What is the group/classification? a. How is the govt. drawing a distinction among people? 2. What is the level of scrutiny? a. Govt will argue for lowest level (rational basis) b. Challenger will argue for highest (strict scrutiny) 1

3. Does the govt. action meet the level of scrutiny? a. Apply test for appropriate level of scrutiny b. Over or underinclusive? First Amendment Framework 1. What forum? 2. CB v. CN a. If CB unprotected or less-protected? i. apply strict scrutiny b. If CN apply intermediate scrutiny 3. Level of Scrutiny a. Govt will argue for lowest level b. Challenger will argue for highest (strict scrutiny) I. EQUAL PROTECTION 1. Rational Basis Test a. (1) Does the law have a Legitimate Purpose? i. Romer v. Evans CO laws re: gays not legitimate ii. Any conceivable purpose is enough (US RR Retirement Board v. Fritz) iii. Ex. Traffic safety-Promoting traffic safety is a legitimate state interest (Railway Express-traffic safety promoted by law prohibiting advertising on certain motor vehicles) b. (2) Is there a reasonable relationship i. laws will be upheld unless the govt action is clearly wrong, a display of arbitrary power, or not an exercise of judgment ii. Substantial underinclusiveness is allowed b/c the govt may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind (RR Express v. NY) iii. Substantial over-inclusiveness allowed (NY City Transit v. Beazer methadone) iv. Arbitrary & Unreasonable laws that therefore FAIL rational basis review 1. Ex: US Dept of Agriculture v. Moreno food stamps/hippies 2. Ex: City of Cleburne TX v. Cleburne Living Center group home for retarded 2. Race & National Origin (SS) a. BEFORE 13th/14th Amendments, Court held that slaves were property, not citizens (Dred Scott) b. Strict Scrutiny for discrimination based on race & national origin govt must demonstrate that the discrimination is necessary to achieve a compelling govt purpose i. Footnote 4 discrete and insular minorities c. The SC has recognized very few compelling government interests: national security (Korematsu), remedying systematic race discrimination in public 2

education (Brown v. Board), and promoting diversity in higher education (Gratz). d. Proving the existence of race/national origin classification i. Classification on the FACE of the law 1. The law in its very terms draws a distinction among people based on their race/national origin a. Ex. segregation of blacks in schools 2. Race specific classifications that disadvantage racial minorities upheld in Korematsu (Japanese Americans during WWII - only instance) 3. Race Classifications burdening BOTH whites & minorities a. Loving v. VA unconstitutional to forbid interracial marriage b. Palmore v. Sidoti cant deny custody when stepfather of different race 4. Laws requiring separation of the races only allowed if meet SS a. Plessy v. Ferguson upheld separate but equal b. Brown v. Board of Education no segregation in public education ii. Facially NEUTRAL laws w/ a Discriminatory Impact/Administration 1. Rule: require proof of discriminatory purpose (Davis) AND effect (Palmer) a. Proof of a discriminatory impact is not enough by itself to show that there is a racial classification. To trigger strict scrutiny, the plaintiffs must show that the intent behind the requirement was to disadvantage based on race. 2. Discriminatory purpose a. WA v. Davis police entrance exam b. McCleskey v. Kemp death penalty to blacks c. City of Mobile v. Bolden at large elections 3. Discriminatory effect - Palmer v. Thompson (swimming pools) 4. Rule: discriminatory purpose is proven by a. Showing proof that the govt desired to discriminate b. It is not enough to prove that the govt took action w/knowledge that it would have discriminatory consequences (Feeney) c. Ex: Feeney hiring preference to veterans d. Arlington Heights v. Metropolitan Housing zoning low income 5. [NOT COVERED] Discriminatory use of Preemptory Challenges is not permitted based on race (Batson) or gender (JEB) by the prosecutor (Batson), the civil litigant (Edmonson) and criminal defendants (McCollum) a. Batson Test: whether impermissible discrimination in jury selection i. prima facie case of discrimination ii. burden shifts to prosecutor to offer race-neutral explanation iii. court decides whether explanation is persuasive 3

e. Remedies the problem of School segregation i. Brown v. Board of Education ordered school desegregation ii. Massive Resistance ex: Cooper v. Aaron (Little Rock & National Guard, reasserted that Brown is the law and the states must follow the federal judiciary) iii. District Courts have broad discretion to impose remedies in school desegregation cases (Swann v. Charlotte-Mecklenburg Board of Education) 1. Ex: Millikin v. Bradley multidistrict remedy not generally allowed f. Racial Classifications Benefitting Minorities (SS) i. SS used to evaluate all govt affirmative action plansdoesnt matter if the racial classification is invidious (disadvantaging minorities) or benign (benefitting minorities) ii. The use of race to benefit minorities in college and university admissions not allowed if using quotas or numerical qualifications use of quotas or numerical classification requires clear proof of past discrimination 1. Allowed only if the govt. meets a very heavy burden 2. The quota/set aside may then be used to remedy the past discrimination (but this has only been upheld once) iii. Educational Institutions 1. Grutter v. Bollinger MI Law upheld under SS b/c race a factor, not the only factor a. Colleges and universities may use race as one factor in making admissions decisions to benefit minorities to enhance diversity i. SC held that consideration of an applicants race in college and law school applications warrants strict scrutiny. Thus, the mere fact that race classification is benign does not end the analysis. ii. More of a holistic review of each applicants file b. The [law school] asserts an interest in the educational benefits of a diverse student body, and that racial diversity enhances those benefits. In Grutter, the Court explained that racial diversity may enrich classroom discussion, increase cross-racial understanding and product well-rounded citizens. Further, a graduate school or college does not need to produce evidence that its admissions process actually seeks such benefits. It merely needs to show that attaining a diverse student body is at the heart of the schools institutional mission. i. Thus, the Court will likely accept the [law schools assertion that it actually seeks to promote diversity and its corresponding benefits, unless those challenging the admissions program prove that the [law schools] motives lie elsewhere. Because [ ] provides no evidence of racial bias or favoritism, the [law school] should be found to have a compelling interest. 4

c. The more difficult question is whether [ ]s admission process us narrowly tailored to achieve racial diversity. Specifically, is the [law schools] practice of [automatically awarding points to..] narrowly tailored to achieving a diverse student body? i. To answer this question, we must consider two SC cases: Grutter and Gratz. 2. Gratz v. Bollinger MI undergrad point system invalidated a. Universities cannot add additional points to an applicants profile based on their race b. Here, race was a decisive factor for virtually every minimally qualified underrepresented minority applicantrace/ethnicity should not be a defining feature of his or her application c. racial quota programs are typically not narrowly tailored 3. Seattle School District case white/non-white determinations not allowed iv. Affirmative Action in universities 1. Colleges/universities have a compelling interest in a diverse student body a. However they may only use it as one factor in the admissions decision process 2. Elementary/High schools a. Parents Involved- Strict Scrutiny must be met if elementary/high schools use race in assigning students to schools 3. Gender Classifications (IS) a. Early cases approving gender discrimination [NOT COVERED] i. Bradwell v. IL prohibited women licensed to practice law ii. West Coast Hotel v. Parish uphold minimum wage law for women b. Evaluate Gender with Intermediate Scrutiny (Craig v. Boren) i. Gender-based classifications require intermediate scrutiny under the Equal Protection Clause. Such classifications must advance important governmental objectives, and the means used to advance those objectives must be substantially related to them. 1. The Court has said that gender discrimination may be allowed only if there is an exceedingly persuasive justificationmore recently added this requirement for a gender classfication a. It is currently unclear the role that this language plays in equal protection analysis of gender classifications, however one likely meaning is that any government purpose must be actual and not hypothetical, and that the Court will examine evidence and history to determine whether the governments asserted purpose was its actual purpose (U.S. v. Virginia) ii. Reed invalidated gender classification (1st time) re: hierarchy of estates iii. Frontiero gender should be subject to SS (no to law re: women prove dependence) iv. Craig v. Boren Intermediate scrutiny (OK low alcohol beer law not okay) 5

v. US v. Virginia exclusion of women from VMI not okay & govt couldnt demonstrate exceedingly persuasive justification 1. Court held that the government may not judge all women based on the average physical capabilities of women as a whole c. Proving the existence of gender classification i. (1) The classification exists on the face of the law (the law in its very terms draws a distinction among people based on gender) 1. Ex. Oklahoma had a law that said women could buy lowalcohol beer at age 18, but men could not until 21 2. Ex. Virginia had a law that only men could attend VMI (Virginia Military Institute) ii. (2) The law is facially gender neutral, proving a gender classification requires demonstrating that there is both a discriminatory impact to the law & a discriminatory purpose behind the law 1. Ex. In order to be a firefighter, you have to be 510 and 150 lbs a. Statistically, only 2% of women meet this requirement b. However, only requires Rational Basis review, unless plaintiff can show that the intent was to discriminate against women 2. Geduldig .v Aiello (deny pregnancy related benefits met rational basis review) d. Gender classifications benefitting women i. Intermediate Scrutiny applies whether the law discriminates or benefits women ii. Classifications based on role stereotypes generally not allowed (Orr alimony case) 1. Many gender classification that appear to benefit women, in actuality tend to perpetuate destructive stereotypes 2. Ex. A woman can be awarded alimony, but never men (Orr) a. This perpetuates the stereotype that women are always economically dependant on their husbands, but not vice versa b. Under IS, Court declared this unconstitutional 3. MI University for Women v. Hogan (cant exclude men from nursing school) a. In response, those challenging the law would argue that the _____ law really reflects stereotypes about which gender..(facts). As the Court has held in U.S. v. Virginia and Hogan, state enforcement of gender stereotypes violates the EPC. In U.S. v. Virginia, the stereotype was that women were not willing or able to enroll in military-style education. In Hogan, the stereotype was that the nursing profession was for women. 4. Michael M. v. Superior Court (statutory rape law against men only okay)legislative purpose to prevent teenage pregnancies a. Here, the law was intended to prevent illegitimate pregnancies 6

b. The Court upheld the legislative rationale that the physical burden of pregnancy provided women a natural disincentive from sexual intercourse that has no biological parallel in men. To equalize the incentives, the state then needed to impose criminal punishment on men. (pregnancy is a legitimate distinguishing factor) 5. Rostker v. Goldberg (upheld male-only draft registration) iii. Gender classifications benefitting women allowed when they are designed to remedy past discrimination or differences in opportunity 1. Without identified past discrimination, the [citys] policy has nothing to remedy 2. Classifications designed to remedy past discrimination, where there were differences in opportunities will be allowed. a. Redressing our societys longstanding disparate treatment of women b. Essentially meant to compensate for the lack of opportunities in the past. 3. Califano v. Webster (Social Security Act benefits better for women = ok) iv. Classifications benefitting women because of Biological differences between men & women allowed in Nguyen v. INS (favored mothers over fathers okay) 1. Because the biological facts of birth make identification of the natural mother easier than identification of the biological father, Court held that Congress may impose different paternity standards (for immigration purposes) on mothers and fathers of children born in the US. 4. Alienage Classifications (SS) a. Alienage discrimination = laws that discriminate against non-US citizens i. 14th Amendment applies to non-citizens also (Yick Wo) 1. Yick Wo: discriminatory administration; the Court inferred from the overwhelming amount of evidence of discrm. Treatment that there was a violationcant infer impact from intent b. The SC has held that such state laws merit either rational basis review or strict scrutiny depending on the matter involved. Rational basis review applies to state laws excluding resident aliens from governmental functions (Foley) ; strict scrutiny applies to all other state laws discriminating against resident aliens (Graham). c. Strict Scrutiny is generally used i. Ex. In order to obtain welfare benefits, the person had to be a US citizen (Graham cant deny welfare to aliens, deemed unconstitutional) ii. Ex. In order to be admitted to the bar in that state, you had to be a citizen-unconstitutional d. Exceptions to the SS rule i. Only a RB test for alienage classifications related to self govt. and the democratic process

1. The Court has explained that government functions are those government tasks that involve either policymaking or broad discretion. 2. The govt. may discriminate to non-citizens with regard to: a. Voting, hold public office, serving on a jury, being a police office, teacher, or probation officer b. SC has said that the govt. can reserve some privileges for just citizens 3. Ex. State law, in order for a person to be a Police Officer they had to be a US citizen a. SC said that police officers (state troopers) are integral to the democratic process bc they enforce the laws that are made through the democratic processonly RB review and law was upheld (Foley v. Connelie) 4. Ex. State law, in order to be a teacher in the state the person had to be a US citizen bc teachers are integral to the democratic process because they are responsible for implicating democratic values in our youth (Ambach v. Norwick) a. political function exception 5. Ex. Notary republicdoesnt have anything to do with democratic process, they just put the seals on documents, SC applied Strict Scrutiny a. Perform essentially clerical and ministerial tasks that are not governmental functions ii. Only a RB test is used for Congressional (Federal) discrimination against aliens 1. Congressionally approved discrimination (as a result of a federal law) is only subject to Rational Basis review 2. Ex. Congress has plenary power to regulate immigrationand if Congress chooses to discriminate on the basis of alienage for the purpose of regulating immigration, then only RB is usedthis however cannot involve discrimination of race/gender iii. Intermediate Scrutiny used against undocumented alien children 1. Plyler v. Doe: children of citizens and children of documented aliens would get free education, but children of undocumented aliens had to pay for their educationcant prohibit free public education to alien kids bc it is not their fault that they happened to be born outside of the US a. SC said this was unconstitutional b. Used Intermediate Scrutiny e. Discrimination Against Non-Marital Children (legitimacy classifications) i. Intermediate Scrutiny is usedbut such laws always fail ii. If the laws distinction is between marital & non-marital children, the law is likely to be invalidated (Levy wrongful death) 1. Ex. Law that say only marital children can inherit from their fathersIS used and declared unconstitutional iii. If the laws distinction is among non-marital children, the Court will apply intermediate scrutiny in evaluating the law 1. Ex. Law that said a non-marital child could inherit from the father only if the paternity was established during the lifetime of the father 8

a. Discriminates between non-marital childrenInt. Scrutiny used and upheld, stating that the govt. has an important interest in preventing fraud and establishing paternity during the fathers lifetime is substantially related to that goal f. All other discrimination receives only Rational Basis Review i. Age discrimination (RB) 1. Ex. If there is a challenge to a mandatory retirement law, then only rational basis review applies 2. MA Board of Retirement v. Murgia upheld state law requiring police to retire at age 50 ii. Disability discrimination (RB) 1. City of Cleburne-zoning ordinance that prevented a home for the mentally disabled from being located in its townonly requires rational basishowever in this case, the ordinance was declared unconstitutional 2. RB, however ADA broadly prohibits discrimination iii. Wealth Discrimination-discrimination against the poor (RB) 1. SC has held that poverty is not a suspect class 2. poverty is not immutable & most discrimination against poor is result of effects of law, rather than a product of intentional discrimination iv. Economic regulations (RB) 1. Doesnt matter if a govt. economic regulation is challenged under DP or EPRB v. Sexual Orientation discrimination (RB) 1. Romer v. Evans- an initiative passed by Colorado voters which repealed all laws in the state that protected gays/lesbians from discrimination and prohibiting the enactment from any new laws in the state from the same protection a. Court found this unconstitutional under rational basis used non-deferential RB due to the existence of animus 2. Animus (prejudiced or malevolent ill will) against gays/lesbians, even when presented as purported moral basis for a law is NOT sufficient to meet RB 3. The Court has shown willingness to analyze more closely the relationship between purpose and classification when the state targets a politically unpopular a. For example, in Cleburne, the Court carefully scrutinized the governments argument that denying a permit for a home for the mentally retarded was rationally related to approved legitimate government interests. b. In Romer v. Evans, the court was skeptical of a Colorado constitutional amendment that prohibited state or local government from enacting or enforcing legal protections based on sexual orientation c. A heightened form of rational basis review would apply II. First Amendment 1. Freedom of Expression 9

a. Theories why should freedom of speech be a fundamental right? selfgovernance/discovering the truth/advancing autonomy/promoting tolerance b. de jure designates what the law says, while de facto designates action of what happens in practice c. Content Based v. Content Neutral i. Content Based presumptively invalid; strict scrutiny applied 1. laws that by their very terms distinguish favored speech from disfavored speech on the basis of views or ideas expressed 2. Two Alternative ways of finding that a law is content-based a. Subject matter restriction: where the application of the speech depends on the topic of the message i. Ex. Ordinance that say no picketing in residential neighborhoods, unless it was a labor protest related to replacing employment 1. Content-based restrictionSSdeclared unconstitutional b. Viewpoint restriction: application of the law depends on the ideology of the message i. Ex. Ordinance that allows pro-war demonstrations, but will not allow anti-war demonstrations 1. Viewpoint restrictionSSunconstitutional ii. Ex. Ordinance that there cant be demonstrations within a few hundred feet of the embassy if they are likely to be embarrassing to the foreign govt. (but allowed if they were supportive of the foreign govt.) 1. Viewpoint restrictionSSunconstitutional ii. Content Neutral intermediate scrutiny applied 1. If a law applies to all speech regardless of its content, topic, or message, then its content-neutral a. Ex. Ordinance prohibit all parades/demonstrations in a city park (whatever their topic) 2. CN = both viewpoint and subject matter neutral a. viewpoint neutral ideology of the message b. subject matter neutral topic of the speech 3. Will be sustained under 1st Amendment if it: (Int Sct-lang diff from EPC) a. advances important govt interests b. unrelated to the suppression of free speech, and c. does not burden substantially more speech than necessary to further those interests 4. Turner Broadcasting (cable TV must carry provisions were CN); Boos v. Barry (picketing near govt embassy not CN); Republican Party of Minnesota v. White (elected candidates) iii. Secondary Effects Doctrine - City of Renton (zoning ordinance re: adult theatres) 1. Typically used when sexual speech is involved 2. A facial CB regulation will be treated as CN if motivated by permissible CN purpose (such as controlling secondary effects) 10

3. The CN justification must be unrelated to desire to suppress speech & unique iv. When Content-BASED is okay 1. Finley when govt subsidizing, may make choices based on content so long as viewpoint neutral (arts endowment case) 2. U.S. v. American Library Association constitutional for Congress to condition federal funds on requirement for internet filters at public libraries v. Vagueness & Overbreadth (will cause statute to be stricken) 1. Vagueness a law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is permitted a. Ex. Ordinance prohibiting the sale of book/magazine tending to corrupt the morals of youth i. No reasonable bookseller could tell what was corrupt and what was nottherefore law is held void under vagueness grounds b. Coates v. Cincinnati vague law re: sidewalk/annoying manner 2. Overbreadth a law is unconstitutionally over broad if it regulates substantially more speech than the constitution allows to be regulated a. Schad v. Borough of Mount Ephraim- Ordinance prohibiting all live entertainment (city did this in order to shut down a nude dancing club) i. SC said that even if it assumes that nude dancing is not protected by the 1st Am, this law prohibits so much more than that (sports events, concerts, etc.), thus prohibiting all live entertainment overly broad b. does NOT apply to commercial speech 3. Laws challenged under both Vagueness & Overbreadth (facial) a. Overbroad but not vague ex: no 1st Amend. activity in airport b. Vague not Overbroad ex: if prohibit speech not protected by 1st Amendment 4. Prior Restraints-a judicial order when an administrative system that stops speech before it occurs a. Court orders that prohibiting speech must meet Strict Scrutiny i. Ex. Temp. restraining order; preliminary injunction ii. NY Times v. U.S.: Federal govt. went to federal court to get an injunction to stop the NY Times from publishing the Pentagon Papers 1. Govt. failed to meet the heavy burden of SS b. Licensing or permit systems i. Govt. can require a license or permit for speech only if it has an important reason for licensing and only if there are clear criteria leaving almost no discretion to the licensing authority 11

1. There also have to be procedural safeguards: prompt review of permit request, and judicial review of license denials ii. Ex. In order to have a parade, a permit is required. Permits will be granted on a first come, first served basis so that there is only one parade at a time. There will also be notice if this is denied and hearing and the possibility of judicial review 1. The court will say that the govt. has an important interest (one demonstration at a time), clear rule leaves little room for discretion by licensing authority (first come, first served), and there are procedural safeguards (hearing/judicial review) sufficient under the Constitution 2. Unprotected & Less Protected Expression a. Govt. can prohibit and punish the speech-generally must meet Rational Basis b. But Content-BASED distinctions w/in categories of unprotected speech must meet SS (R.A.V.) i. Unprotected Speech = incitement of illegal activity, fighting words, obscenity ii. Less Protected Speech = commercial, some sexually oriented iii. R.A.V.- govt. cannot discriminatorily burden speech based on viewpoint, even if its considered unprotected speech 1. When that is the case, even though its unprotected speech, the viewpoint discrimination triggers strict scrutiny a. Exception: threatening the President for example is unprotected bc it threatening criminal action, and threatening the President (head of state) threatens the larger whole of society b. Exception: alludes to the secondary effects doctrine that a law like Title VII (punishes sexual harassment in the workplace)reason why this law is okay, the secondary effects of interference in the workplace is adequate c. Incitement of Illegal Activity (unprotected by the 1st Am.) concerned audience may follow speaker into lawlessness i. Brandenburg test: govt. may punish speech if there is a substantial likelihood of imminent illegal activity, and if the speech is directed at (intent to) causing illegal activity (case re: KKK incitement) a. Ex. Someone stands up in a lecture with a baseball bat and says Lets beat up the professor for all the bad jokes hes made i. Was there a substantial likelihood of imminent illegal activity? Would probably have to ask some of the students in the lecture, the court would likely say yes

12

ii. Was it directed at causing illegal activity? The court would look at the words and the act and likely say yes b. Post-Brandenburg mere advocacy of force not enough (NAACP v. Claiborne) ii. Clear & Present Danger Test Schenck (upheld leaflets re: draft)-NOT USED MUCH 1. Requirements (1) likelihood of (2) imminent (3) significant harm 2. Ex: Frohwerk v. U.S. (German newspaper); Debs (advocating socialism/criticize draft); Abrams (Russian immigrant leaflets criticizing US military efforts) iii. Reasonableness Approach upheld so long as prosecution reasonable (Gitlow left wing manifesto) iv. The Risk Formula Approach whether the gravity of the evil, discounted by its improbability, justifies invasion of free speech as necessary to avoid danger (Dennis teaching Marx) d. Fighting Words (unprotected) concern that audience may be lawless in reaction to speaker i. TODAY: fighting words law not likely to survive 1. If narrow deemed impermissible CB restriction on speech 2. If broad invalidated in vagueness and overbreadth terms ii. Chaplinsky (Jehovahs conviction upheld) fighting words, which by their very utterance inflict injury or tend to incite are unprotected 1. 2 Situations of fighting words a. (1) likely to cause a violent response against the speaker b. (2) an insult likely to inflict immediate emotional harm iii. Never overturned Chaplinsky, BUT never again upheld fighting words conviction 1. Instead, USSC employed narrowing, Vagueness/Overbreadth, and CB restrictions to avoid fighting words convictions 2. Ex: Narrowing -- Street (flag burn ok); Cohen (fuck draft jacket ok); TX v. Johnson (flag burning = protected speech) 3. Ex: Vague/Broad Gooding GA law prohibiting opprobrious/abusive language 4. Ex: CB restrictions - RAV ordinance prohibiting hate speech/symbols e. Hostile Audience i. applied C&P Danger test in dealing w/ how the govt may punish speech that provokes a hostile audience reaction ii. Feiner upheld conviction re: critical President speech where crowd angered iii. TODAY - Police should 1st try to control the audience & stop the speaker only if crowd control impossible and threat to breach of peace is imminent 1. Essentially needs to stop the speaker in order to protect the speaker and the safety and welfare of the audience a. Cant be classified as incitement or fighting words b. Duty is to protect the speaker when it reaches the point that there is no other option/alternative f. Racist Speech (Hate Speech) 13

i. Beauharnais strong authority for govt to restrict racist speech (if an utterance directed at an individual may be the object of criminal sanctions, the Court could not deny to a state the power to punish the same utterance directed at a defined group) ii. When govt tries to regulate hate speech by banning it problematic CB, vague, broad iii. Virginia v. Black unconstitutional VA law prohibiting cross burning w/ intent to intimidate 1. Held (1) govt cant prohibit all cross burning, (2) burning w/intent of true threat (where ones words are essentially the first step of a criminal act) not protected, and (3) need individual proof per case of true threat 2. Court is not concerned with thought control (as in what they are thinking when they burn the cross), but instead curtailing the intimidation that is inherent in the action. The action is not being prohibited bc of its specific message, but instead to punish the true threat a. Ex. Burning cross (historically hateful) true threat g. Sexually Oriented Expression i. Obscenity - unprotected (Roth) 1. obscene material appeals to prurient interest (not synonymous w/sex) 2. arguable correlation between obscene material & crime (Paris Adult Theatre) 3. Miller test - 3 part test for whether something is obscene (guidelines for court) a. Material must appeal to the prurient [that which excites lustful or lascivious thoughts] interest (shameful or morbid interest in sex) i. Prurient interest is a LOCAL standard b. The material must be patently offensive under the law prohibiting obscenity i. Any law (local/state or federal) that prohibits obscene material, must delineate what depictions it finds to be patently offensive and then the material must fit under that statutory definition c. Taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value i. Social value is determined by a NATIONAL standard not a local standardhow the work is regarded across the country 4. Adult book stores/movie theatres: Local govts. may use zoning ordinances to regulate the location of adult book stores and movie theatres a. Young: Ordinance that limited the number of adult bookstore/movie theaters that could be on any city block i. SC upheld this stating that the city had an important interest in preserving the character of its neighborhoods and limiting the number furthered that goal b. City of Renton: City ordinance that all the adult bookstores/movie theaters be in one area of the city, 14

occupying less than 5% of the area of the city (secondary effects) i. SC upheld this c. Essentially, erogenous zoning is permissible ii. Child Pornography the govt. may prohibit child pornography even if it is not obscene (does NOT have to fit under Miller test for obscenity) 1. Govt. has a compelling interest in protecting children in the making of pornography 2. Child porn can be banned even if the govt. does not meet the test for obscenity a. NY v. Ferber upheld law prohibiting making/selling child porn 3. In order to be considered child pornography, children must be used in its production a. Congress amended the federal Child Pornography Prevention Act to include in what was prohibited, adults who were child-like being used in sexual situations or computer generated images of children in sexual situations i. SC found this unconstitutional bc the govts interest in preventing children from being used in porn, and here no actual children are being used ii. Aschcroft v. Free Speech child porn only when real children used 4. The govt. cannot punish private possession of obscene material, but the govt. can punish private possession of child porn a. The govt.s interest in protecting children, allows it to dry up the market of child porn by punishing even private possession iii. Protected but Low-Value Sexual Speech does not meet test for obscenity and thus protected by 1st Amendment (but deemed low value and govt can regulate) 1. Since it is not unprotected, there is an argument on behalf of the speaker that it is protected 2. The government will however state that it should be unprotected for these reasons (cite examples) 3. Zoning ok - Young v. American Mini Theatres / Renton secondary effects 4. Nude Dancing Barnes v. Glen govt may completely ban nude dancing a. Can regulate symbolic speech if (a) sufficiently justified w/in govt constitutional powers, and (b) furthers important govt interest unrelated to suppression of free expression, and (c) incidental restrictions no greater than essential b. City of Erie v. Paps upheld no nudity ordinance as CN b/c interest in combating secondary effects (no proof needed) 5. Should there be a category as low-value sexual speech?

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iv. Govt Techniques for Controlling Obscenity & Child Pornography 1. Govt can prohibit sale/distribution/exhibition of obscene material even to willing recipients, BUT it cannot prohibit/punish private possession (Stanley), except for child porn (Osborne) 2. The govt. may seize the assets of businesses convicted of obscenity law violations v. Profanity & Indecent Speech/Expression generally protected, but exceptions 1. Cohen v. CA: A boy was in the courtroom with a jacket that said fu** the draft on the back. The boy was convicted of disturbing the peace. a. SC overturned his conviction, to censor words/ideas, the govt cant cleanse the English language to please the most squeamish among us. 2. Reno v. ACLU: declared Communication Decency Act unconstitutional. This act made it a crime to knowingly transmit indecent material over the internet in a manner accessible to a minor. a. SC said this was unconst. stating that indecent speech is generally protected under the 1st Am. 3. Exceptions-where govt. can prohibit profane and indecent speech a. Television and radio i. FCC v. Pacifica: radio station in NY broadcast the George Carlin monologue on his 7 dirty words 1. SC said that the radio station could be punished bc the broadcast medium is uniquely intrusive into the home and accessible to children ii. This applies to speech over the air television/radio (captive audience) iii. The govt. has much less latitude to regulate cable and internet that people choose to bring into their homes iv. Video games are a medium protected by the 1st Am. b. Telephone i. Sable Communications- cant eliminate dial-a-porn ii. Dial-in medium requires the listener to take affirmative steps to receive the communication. Placing a telephone call is not the same thing as turning on a radio and being taken by surprise by an indecent message. c. Internet- Court has been very protectiveStrict Scrutiny i. Reno v. ACLU- govt cant restrict transmission of obscene material over the internet by restring availability to adults & children ii. Ashcroft v. ACLU- COPA [Child Online Protection Act] regulating commercial sex sites by credit 16

card requirements was a CB restriction on speech and failed SS (filtering ok) 1. Filters, for example, could be installed on computers allowing adults to monitor the Internet content for their children rather than the government monitoring the Internet content for everyone. Protecting children from commercial pornography is a compelling governmental interest, but overly restricting lawful speech is not going to succeed. 4. Cable TV can have consumer ask to restrict channel, but thats all h. Commercial Speech (less protected-the govt has more latitude to regulate) i. Rules: 1. Speech that does no more than propose a commercial transaction is protected (VA State Board Pharmacy - ads with drug prices ok) 2. False and deceptive ads and ads for illegal activity are unprotected by the 1st Am. (VA Board) 3. Truthful ads that inherently risk deception not protected (Freidman-trade names) a. States may prohibit professional from advertising or practicing under trade names (TX optometrist couldnt call his practice site for sore eyes) 4. Examples a. State may prohibit attorney in-person solicitation of client for profit i. State can prohibit a person from going to a hospital room for example and soliciting business ii. Too much danger of deception or pressure (but letter solicitation is fine, and free pro bono solicitation is okay) b. A state may not prohibit accountants from in-person solicitation of clients i. Said that accountants are trained for accuracy and attorneys for advocacy (more deceptive) ii. Other govt. regulation of commercial speech is allowed if Intermediate Scrutiny is met 1. Assuming that the speech is truthful and not meant to advertise illegal activities 2. Overbreadth doctrine does not apply to commercial speech regulations iii. Commercial speech = proposes a commercial transaction (VA Board), expression related solely to economic interests (Central Hudson) 1. 3 Characteristics of Commercial Speech (Bolger v. Youngs Drugs Products) a. advertisement of some form b. refers to a specific product 17

c. speaker has an economic motivation for the speech iv. Test for evaluating regulation of commercial speech (Central Hudson) govt burden 1. Is the advertising false/deceptive or illegal a. If Yes unprotected / if no = see 2nd prong 2. Govt restriction justified by substantial govt interest (ends) (Int. Scrutiny) a. If Yes see 3rd prong / if no = unprotected 3. Law directly advances the govt interests (means) (intermediate S fit) a. Ex. state tobacco advertising regulation was supported by substantial empirical evidence linking tobacco advertising to tobacco demand among minors (Lorillard Tobacco Co.) 4. Regulation of speech no more extensive than necessary to achieve the govt interest (means) (intermediate scrutiny) (narrowly tailored Fox) a. This does not require that the challenged govt. action be the least speech-restrictive alternative i. CONDUCT that Communicates (expressiveSymbolic Speech) i. Govt. may regulate conduct that communicates if it in an important interest unrelated to the suppression of the message, and if the impact on communication is no greater than necessary to achieve the govts purpose (Intermediate Scrutiny) 1. Words, symbols, conduct, marching, picketing ii. Methodology 1. apply the Spence Test a. 2 Factors whether conduct is communicative i. (1) intent to convey a particularized message ii. (2) substantial likelihood the message would be understood by those who view/receive it 2. apply the OBrien Test (law prohibiting burning draft card okay) a. A govt regulation is sufficiently justified if i. Govt regulation is w/in the constitutional power of the govt (looking for neutral articulation of govt power) ii. Govt interest is unrelated to the suppression of free expression [CB or CN?] 1. If Yes (CN) continue w/prongs 3 & 4 (applying intermediate scrutiny analysis for CN regulations) 2. If No (CB) apply strict scrutiny! iii. Ends: does it further an important or substantial governmental interest iv. Means: is it an incidental restriction on 1st Amendment expression 3. Flag Burning is constitutionally protected speech (TX v. Johnson) a. SC rules that there is a 1st Am. protection of burning a flag in the form of political protest 18

a. Govt. can punish men for burning their draft card b/c the govt. has an important interest in making sure that men kept their draft cards in case of emergency military mobilization b. The impact on comm. was no greater than necessary 5. Nude dancing is not protected speech a. Local govts. can prohibit nude dancing (City of Eerie) 6. Cross-burning is protected speech unless it is done with the intent to threaten a. Virginia v. Black: VA had a law that made it a crime to burn a cross (involved 2 companion cases) b. 1st case: Clan members who burned a cross on a insolated farm as part of a rally i. Here, could not be punished because it was an isolated rally with no onlookers, therefore it cannot be said it had the intent to threaten (historically threatening implications) nd c. 2 case: 2 men who burned a cross on a lawn of a home recently purchased by an African-American family i. Here, could be punished bc they had the intent to threaten ii. Burning a cross is a particularly virulent form of intimidation with a long history as a signal of impending violence 7. Election campaigns: Govt. may limit contributions to election campaigns but it may not limit expenditures (overall money that we spend) in election campaigns a. Spending money= political speech (Buckley v. Valeo) contribution disclosure requirements okay, but expenditure limits invalidated because they are considered a greater burden on a persons right to speak in favor of their preferred candidate b. Ex. Someone had $1mil to spend on Obama i. The govt. could limit the amount that this person could contribute directly to the candidate ii. But the govt. could not restrict this person from buying ads directly c. Citizens United: held that expenditure limits on corporations are unconstitutional iii. Anonymous Speech is protected by the 1st Am. 1. SC has said that there is a right to speech anonymously without disclosing ones identity 2. Ex. Ohio law that prohibited distribution of anonymous literature regarding a candidate in the electionSC found this unconstitutional 3. FORUMS available for expression a. Overview: scrutiny for the forum CONTROLS, regardless of whatever else you have i. summary of forum from Perry 19

4. Draft-card burning is not protected speech (OBrien)

ii. Public Forum - govt. properties that the govt. is constitutionally required to make available for speech (e.g. sidewalks, streets, parks) 1. Govt can regulate speech in public forums, but only if it meets certain requirements: a. The regulation must be subject matter and viewpoint neutral, or it must SS i. Assuming that its both SM/VP neutral, then go to (b) b. Intermediate Scrutiny-the regulation must be a time, place, or manner restriction that serves an important govt. purpose and leaves open adequate alternative places for communication i. Ordinance saying no trucks with sound amplification equipment could operate in residential neighborhoods at nighttime 1. Time, place, manner restriction that served the important interest of preserving tranquility in residential neighborhoods at nighttime and left adequate alternative locations for communication c. Govt. regulation of speech in public forums does not have to use the least restrictive alternative i. Ward v. Rock Against Racism- NY ordinance that said that in order to have a concert in a city park, there to be use of city sound equipment and engineers 1. Concert promoters said that the city could achieve its goal, noise reduction, through less restrictive meanscourt ruled in favor of the city stating that it did not have to meet the least restrictive means 2. Traditional: Hague (can meet in street/park w/o permit); Schneider (leaflets) 3. Modern Examples: Mosley (picketing by school); Hill (abortion picket ok TPM) 4. CB strict scrutiny a. the state must show the regulation was necessary to serve a compelling govt interest and is narrowly tailored to achieve that end 5. CN time, place, manner (T-P-M) a. Intermediate Scrutiny - Govt can regulate if CN, or reasonable TPM that serves important govt interest, narrowly tailored, & leaves open adequate alternatives for speech (Hill) 6. Licensing/Permit ok if serve imp purpose & give clear criteria/no discretion a. Cox (ok limit 1 parade at a time); Forsyth (fee up to $1000 not ok) iii. Limited/Designated Public forum = govt property voluntarily opened for expressive activity (the govt chooses to open to some speakers or some topics) 20

1. Govt. can regulate the speech in this manner so long as the regulation is reasonable and viewpoint neutral a. Govt can close down the forum but as long as it remains open, it is bound by the same standards as a traditional public forum 2. CB strict scrutiny (see above) 3. CN time, place, manner 4. Examples: a. UC Hastings has created a limited public forum by recognizing student groups (stated that each group must accept all members) i. Christian Legal Society lost against the school bc they said only students who vowed allegiance to Jesus could join ii. The schools requirements were reasonable and viewpoint neutral and since the school is funding the group, all students should be able to join b. School/university open to student groups, have to allow religious 5. The govt does NOT create a designated public forum when it does no more than reserve eligibility for access to a forum to a particular class of speakers, whose members must then obtain permission as individuals iv. Non-public Forum (still public) = govt. properties that the govt. can and does close to speech 1. The govt. when acting in a proprietary capacity can regulate these forums so long as the regulation is reasonable, viewpoint neutral, and not an effort to suppress expression. a. The standard for nonpublic for a is reasonableness (Kokinda) b. If such govt action is unreasonable or is arbitrary, capricious or invidious in nature (Lehman), the govt can not validly limit expression 2. Military bases- even parts of military bases that are usually open to the public, are non-public forums (Greer)need not provide a public forum for political candidates a. It is the business of military bases to train soldiers, not to provide public forum 3. Areas outside prisons/jails- for the sake of security, these places are non-public forums (Adderly) a. Here, the protestors were not arrested because the sheriff objected to what was being said, rather he objected to their presence on that part of the jail grounds b. The Court rejected the assumption that demonstrators have a constitutional right to expound their views whenever, wherever, and however they choose 4. Sidewalks on post office property- although the SC has said that sidewalks are the classic public forum, they are not considered as such on post office property (Kokinda) a. Post office sidewalks simply provide access to and from for persona engaged in postal business. The postal service has not dedicated its sidewalks to any expressive activity, 21

and it is reasonable to regulate solicitation because it is inherently disruptive to the Post Offices constitutional purpose of effective and efficient distribution of mail. 5. Airports-airports are a non-public forums, and therefore the govt. can regulate the solicitation of money in airports (I.S.K.C. v. Lee) a. However, prohibition of distributing literature is unconstitutional because the SC said it fails rational basis review b. Airports are commercial enterprises dedicated to the facilitation of air travel and do not have a primary purpose of promoting the free exchange of ideas. Since airports are not public forums, the speech restrictions only must be reasonable. Solicitation disrupts airport traffic, and airport users are often in a hurry, and a missed flight creates major inconvenience. 6. Bus ads (public transit)-no public forum is created where the city is engaged in commercial activities, and therefore the govt can limit ads to minimize the chances of abusea reasonable legislative objective (Lehman) a. In concurrence, one justice stated that Lehman had no right to force his message upon an audience incapable of declining to receive it b. Dissent-By accepting commercial and public service advertising, the City effectively waived any argument that advertising in its transit cars is incompatible with the Citys primary function of providing transportation. A forum for communication was voluntarily established when the city installed the physical facilities for the ads and created the administrative machinery for regulating access to the forum. v. Private property- There is NO 1st Am right to use private property for speech purposes 1. Ex. cant use privately owned shopping centers for speech a. Pruneyard v. Robbins: under CA law, there is a state constitutional right to use privately owned shopping centers for speech 2. There is no First Amendment right for speech purposes because it is privately owned property, therefore no state action exists and the Constitution does not apply.

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