Constitutional Law II Outline

Transcription

1 Constitutional Law II Outline Professor: Jason Gilmer I. The Structure of the Constitution s Protection of Civil Rights and Civil Liberties A. Introduction 1. Bill of Rights a) 1st Amendment: Freedom of Religion, Freedom of Speech, Freedom of Press, Right to Assemble, Right to petition the Gov t for Redress b) 2nd Amendment: Maintain a regulated Militia, Right to bear Arms c) 3rd Amendment: No soldiers quartered d) 4th Amendment: Unreasonable Searches and Seizures e) 5th Amendment: Indictment (grand jury), Double Jeopardy, Compelled to testify against yourself, Deprivation of life, liberty, prop. w/o due process, Takings clause f) 6th Amendment: Speedy & Public Trial, Impartial Jury, Venue, Confront witness against Def, Witness in Def s favor, Right to Counsel g) 7th Amendment: Trial by Jury h) 8th Amendment: No excessive bail, No cruel and unusual punishment i) 9th Amendment: reminder that the listed rights are not the exhaustive rights of citizens j) 10th Amendment: the State s retained sovereignty 2. Civil War Amendments a) 13th Amendment (1865): (1) Slavery and indentured servitude abolished b) 14th Amendment (1868): (limitations on the state) (1) Citizenship, Privileges and Immunities, Due Process, Equal Protection c) 15th Amendment (1) Right to vote. 3. Negative Rights: limitations on the government. Check on the tyranny of the majority. Even the winners of elections may not infringe upon certain rights of the people.2 B. The Application of the Bill of Rights to the States 1. Pre Civil War (Barron, city changing water stream) a) Bill of Rights DO NOT apply directly to State and local governments 1 of 22

2 b) Citizens must look to the state constitution or laws for protection and recourse (1) State governments could tailor laws for state citizens (2) States able to control issues not able to be resolved by Federal governments. c) Policy: Fear of the distant and powerful federal government motivated the creation of the bill of rights 2. Reconstruction (Slaughter House Cases, butchers) a) Privileges and Immunities Clause became a practical nullity and does not apply the bill of rights to the State and Local governments. b) 13th Amendment: abolishes slavery and involuntary servitude (1) Broad enough to capture more than african slavery (mexican peonage / chinese railroad camps) c) 14th Amendment: (1) Applies to State & local governments (2) Section 1: naturalized citizenship, response to Dredd Scott (3) Section 2: (a) Privileges & Immunities (gutted): does not import Amendments 1 8, it does include (i) Assert claim upon government (ii) Transact business with government (iii) Share in offices/elections (iv) Access to seaports (best right of all time) (b) Due Process: substantive & procedural (c) Equal Protection: prohibits, without sufficient reason, a state from treating similarly situated people differently (4) Section 3: No insurrection (5) Section 4: No payment of insurrection debt (6) Section 5: Enforcement Clause d) 15th Amendment: gives all citizens the right to vote (1) Section 5: Enforcement Clauses: Congress is the primary enforcer of civil rights protections. e) Civil Rights Acts (1866, 1871, 1875): Congressional actions enforcing equal protection. 3. Doctrine of Incorporation a) General: bill of rights only apply to the federal government, UNLESS incorporated by the courts through the 14th Amendment due process clause. (Chicago) 2 of 22

3 b) Total Incorporationists: entire Bill of Rights incorporated through the 14th Amendment c) Selective Incorporationism: rights implicit in the concept of ordered liberty are incorporated by the Due Process Clause, on a case by case basis. (1) Selective Incorporation was the method ultimately adopted. (Palko) d) Fundamental Rights: rights that inhere in nature of government, that are implicit in the concept of orderly liberty, rooted in the traditions of the nations history. (1) There are certain fundamental rights which the government may not take from citizens. (Twining) (2) Examples of Rights incorporated in the Due Process Clause (non exhaustive) (a) Freedom of speech. (Gitlow) (b) Right to counsel in a capital murder trial. (Powell, southern black men) (c) Right to jury trial. (Duncan, Black male slapped white male) (d) Right to bear arms. (McDonald, handgun) (3) Rights not incorporated in the Due Process Clause: (a) Right to grand jury indictment in criminal case (Hutardov) (b) Right to jury trial in civil cases (Minneapolis) (c) Excessive bail fines (Browning Ferris) (d) Right to not have soldiers quartered (just hasn t come up yet) e) Incorporation Considerations (1) Federalism: whether the federal government can set a floor below which no state can go, or whether states are free to experiment with various policies. (2) Role of the Courts: how much leeway are we going to give 9 justices to provide definition to our rights. Overreaching and creating rights. (3) Rights outside the Bill of Rights? Privacy? Family? Marriage? Abortion? C. Application of Bill of Rights to Private Conduct (State Action Doctrine) 1. General: the bill of rights and the 14th Amendment apply to the government and not private conduct (Civil Rights Cases: Stanley) 3 of 22

4 2. Qualifications a) State as part of the general powers of the state, a state may control private conduct through valid law. b) Federal anytime Congress acts using powers given from anywhere in the Constitution outside of the 14th Amendment, they may regulate private behavior. 3. Exceptions: (when the 14th amendment does apply to private conduct) a) Public Functions Doctrine (1) General: A private entity who exercises power that has traditionally and exclusively has been reserved to the state is a state actor. (Jackson, shutting down electricity) (Marsh, company owned town) (a) Example: primaries; prisons; fire department; police (2) Heavy regulation by the state and state authorized monopolies are not sufficient to create public functions exception. (Jackson) (3) Mall Case 1 (Amalgamated Foods, union picketing strip mall): sidewalks, even though private, are traditional forums and the owners state actors. (4) Mall Case 2 (Lloyd, vietnam handbills): the closed nature of the mall and the other appropriate locations allow the private entity to restrict speech (5) Mall Case 3 (Hudgens, union picketing in mall): a privately owned shopping mall is not like a company town and NOT a state actor. Lloyd overrules Amalgamated. b) Entanglement Doctrine: (1) General: If the government sufficiently facilitated or encouraged the private entity s discriminatory conduct then the (a) Government must cease its cooperation with the private actor OR (b) The private entity must cease its unconstitutional conduct (2) Primarily occurs in four areas: (a) Judicial and law enforcement actions (b) Government licensing and regulation (c) Government subsidies (d) Voter initiatives permitting discrimination (3) A branch of the government enforcing the discrimination is the same as if the state did the discrimination themselves. (Shelley, 4 of 22

5 II. racist covenants) (a) Private discrimination usually requires state enforcement and so almost any discriminatory action may fall within this rule (b) Citizens would have the full coercive power of the government to enforce their discrimination (4) Government licensing/regulation is insufficient to find state action, unless there is other government action encouraging unconstitutional conduct. (Moose Lodge) (5) Has the state so far insinuated itself into an interdependent symbiotic relationship with a private entity that the state is responsible for the private actors unconstitutional conduct. (Burton, parking garage and building) (a) Paying rent to state: State Actor (Burton) (b) Receiving liquor license: Not State Actor (Moose Lodge, liquor license) (c) Special needs school: Not State Actor (Kohn, School for troubled youngsters) even though (i) Most students came from public school (ii) Most of the budget came from state funds (iii) School is heavily regulated (iv) More like contractor (6) Trend: court is less willing to find state action EQUAL PROTECTION A. General: prohibits, without sufficient reason, a state from treating similarly situated people differently. B. Inverse Incorporation: equal protection applies to the states through the 14th Amendment Equal Protection Clause and to the federal government through the 5th Amendment Due Process Clause. (Bolling) C. The courts will exact a closer review of discrimination of discrete and insular minorities. (Carolene Products fantastically, famous, fabulous, foxy, footnote 4) D. Constitutional Analysis 1. Different sources used to interpret Constitution a) Text and the Structure of the Text b) Intent of the Framers, Drafters, Ratifiers c) Prior Precedent d) Social, Political, and Economic consequences of the interpretation e) Natural Law 5 of 22

6 2. Textualists (e.g. Scalia / Blackmun use 1 & 2) E. Analysis Framework 1. Determine Classification a) Immutable Characteristics (example: race, gender) b) History of Discrimination c) Access to Political Process 2. Level Scrutiny a) Strict (1) Race/National Origin In Purpose (2) Alienage b) Intermediate (1) Gender (2) Nonmarital Children c) Rational Basis (1) Age (2) Disability (3) Race/National Origin in Effect (4) Wealth d) Unsure (at least rational basis)(its still in the closet) (1) Sexual Orientation 3. Does the government satisfy the level of review? a) Strict (1) Ends: Compelling government interest (2) Means: Necessary / Narrowly Tailored b) Intermediate (1) Ends: Important government interest (2) Means: Substantially related to the end c) Rational Basis (1) Ends: Legitimate (2) Means: Rationally Related F. CLASSIFICATION 1. Considerations a) Immutable Characteristics (example: race, gender) b) History of Discrimination c) Access to Political Process 2. Strict Scrutiny a) Classification: racial discrimination b) Valid if government proves discrimination is necessary to achieve a compelling government interest 6 of 22

7 3. Intermediate Scrutiny a) Classification: gender and nonmarital children discrimination b) Valid if government proves law is substantially related to important government interest 4. Rational Basis a) Classification: all other discrimination (1) Economic legislation (Railway Express) (2) Cognitive Disability (City of Cleburne) b) Valid if the ends have to be legitimate and the ends have to be rationally related. G. Means Analysis 1. Underinclusiveness: the means used single out a group and do not accomplish the goal as much as a rule applying to the whole population. (Railway Express, billboards on trucks) a) Persons who fall outside a class but are within the justifications for the regulation (1) Plaintiff says you re regulating, but you should also be regulating them. 2. Overinclusiveness: risk treating people unfairly by applying a rule to them simply because they fall within a larger group. (NYC Transit Authority, methadone) a) Persons who may fall within a class but are outside the justifications for the regulation (1) Plaintiff says you re regulating me, but I should be outside the class. Classification Level of Review Ends Means Burden Race Strict Scrutiny Compelling Necessary State Gender / Nonmarital Children Intermediate Scrutiny Important Substantially Related State All Else Rational Basis Legitimate Rationally Related Plaintiff H. STRICT SCRUTINY 1. Race Based Discrimination a) Invidious Discrimination (1) Recognition that laws burden individuals based on race will be subject to strict scrutiny (Korematsu, WWII internment camps) 7 of 22

8 (2) The government does not have a compelling interest in promoting invidious discrimination. (Loving, Interracial married couple) (3) Courts cannot give effect to private biases without violating Equal Protection. (Palmore, child custody black boyfriend) (4) OLD: Separate but equal treatment does not violate the equal protection clause. (Plessy, train segregation) (5) NEW: Separate but equal is unconstitutional. Segregated schools can never become equal. (Brown v Board, school integration) (6) Strict Scrutiny is applied in all cases of racial discrimination even if there is no invidious purpose. (Johnson, California jail separates inmates by race) b) Discriminatory in Effect (1) Disparate impact is not enough to demonstrate that there is a racial classification, instead there must also be proof of a discriminatory purpose. (Davis, verbal test for police) (McCleskey, death penalty) (2) Knowledge is not enough for establishing discriminatory intent, MUST prove discriminatory purpose. (Feeney, veteran hiring) (a) Selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group. (3) Discriminatory purpose need not be the sole purpose of a law but must be a motivating factor to violate Equal Protection. (Village of Arlington Heights, low income housing discriminated) (a) Clear pattern of disparate impact unexplainable by nonracial reasons creates a racial classification. Though the statute was facially neutral, the effects were so discriminatory, they violated Equal Protection (Yick Wo, asian laundromat) (b) Impact of official act on one race vs. another (whether it bears on one race more heavily than another (c) Historical background of decision (d) Sequence of events leading to action (e) Departure from normal procedure (f) legislative history c) Affirmative Action 8 of 22

9 (1) Strict scrutiny still applies to race based affirmative action. (Croson, city council contracts 30% minority) (2) Remedying past governmental discrimination is a compelling interest. (Paradise, Mandating one to one hiring of blacks and whites by Department of Public Safety) (3) Remedying general societal discrimination is not a compelling interest. (Croson, city contracts) (Wygant, teacher layoffs) (4) Use of a race based quota system is unconstitutional. (Gratz, U of Mich Undergrad) (Fisher, UofTex) (Bakke) (5) Use of race as a consideration, plus factor, is allowed under the EP clause. (Grutter, U of Mich Law) 2. Alienage Classifications a) Strict Scrutiny: classifications based upon citizenship are subject to strict scrutiny. (Graham, no welfare for lawful alien is unconstitutional) (1) EXCEPTIONS (a) Self Governing: classifications of aliens regarding self government. (Foley, state trooper) (b) Congress: Congress plenary power to control immigration allows for rational basis review by courts (i) Congress & President held to rational basis review. Federal agencies will be held to strict scrutiny. (Hampton v. Wong) b) Undocumented Aliens: undocumented aliens are not a suspect class but the legislation must be rationally related to a substantial goal. (Plyler, Texas education) I. INTERMEDIATE SCRUTINY 1. Gender Classification a) General: classifications based on gender must be substantially related (aka: exceedingly persuasive ) to an important government purpose. (Craig, OK alcohol violated EP) b) Treating male and female service members differently for something as insignificant as convenience or cost violates the Equal Protection clause. (Frontiero, military benefits) (1) Gender classifications are subject to intermediate scrutiny whether discriminating against women or men. (VMI, military school) c) OLD: Pregnancy discrimination is not a form of gender discrimination. (Geduldig, CA pregnancy disability) 9 of 22

10 d) When a law creates a classification where men and women belong to both categories, the law does not create a gender classification. (Geduldig) e) Affirmative Action (1) Remedying past economic discrimination is an important end and if Congress decision was substantially related, then the act is constitutional. (Califano, Social Security) (2) The purpose of remedial legislation must not be based on gender stereotypes. (Hogan, all women nursing) (3) Gender classifications must be based upon relevant biological differences. (Nguyen, alien father) (Sonoma, statutory rape) 2. Nonmarital Children a) Intermediate Scrutiny: if a law draws a distinction between marital and nonmarital children then it will be reviewed under intermediate scrutiny. (Clark, paternity testing timeline for child support) J. RATIONAL BASIS 1. Government must prove a legitimate purpose when making any classification. (Cleburne, disabled home) 2. Default level of scrutiny. 3. Age Discrimination: mandatory retirement laws that are overinclusive and require officers of a certain age to retire are reviewed under rational basis review. (Murgia, mandatory police retirement) 4. Wealth Discrimination: law that funds public education with property taxes is reviewed under rational basis because poverty is not a suspect class. (Rodriguez) 5. With Bite: the courts may be less deferential to lawmakers than is typical under rational basis when addressing certain issues. a) Sexual Orientation: when the purpose of the law is to harm a group of citizens, even if not a suspect class, then there is no legitimate government purpose. (Windsor, gay i.e stupid estate tax for lesbians) (1) A law that singles out the gay community (Romer, Colorado statute) (2) A bare desire to harm a politically unpopular group is not constitutional (Windsor) (3) Does the federal government have a valid reason for treating same sex couples different from hetero sexual couples. (4) Due Process: citizens have a substantive right to marry whomever they choose without government intrusion. 10 of 22

11 III. (5) Federalism: if the state chooses to recognize a marriage then the federal government should not be able to choose not to recognize it. DUE PROCESS CLAUSE A. PROCEDURAL DUE PROCESS 1. General: the government must provide adequate process before depriving a person of life, liberty, or property. 2. Predeprivation Hearing a) Notice b) Opportunity to be heard B. SUBSTANTIVE DUE PROCESS 1. General: no matter how much process the government provides there are certain rights the government cannot take away without adequate justification. a) Guiding Questions (1) What rights does the due process clause protect? (a) Answer: fundamental rights (2) How should we interpret the Constitution? (a) Textualism vs Living Constitution (3) What is the role of the judiciary? (a) Protect Rights vs. Deferential to Legislature (4) Does Liberty include rights not specified in the constitution? (a) YES a whole made up fake penumbra of rights b) Analysis (1) Is there a Fundamental Right? (a) Bill of Rights (Textualists) (b) Beyond the Text (Majority) (i) Economic Rights (Lochner) (ii) Privacy (Loving) (c) If it is not a fundamental right then apply rational basis. (2) Has this right been infringed? (3) Is the government s action justified? (a) Ends/Means Analysis (strict scrutiny) 2. ECONOMIC LIBERTY a) OLD: Laws restricting the ability of bakers to work interferes with the right to contract under the 14th Amendment. (Lochner, bakers hours) (1) Fundamental principles as they have been understood by the traditions of our people and our law. (Lochner, Holmes dissent) 11 of 22

12 (2) Protect Bakers: bakers are not a disadvantaged class (3) Protect Consumers: clean and wholesome bread is not dependent on the number of hours that bakers can work b) NEW: Court does NOT recognize a fundamental right to economic liberty. (Parrish, hotel chambermaid min. wage) (1) Law is not about logic, but experience (2) Change from Legal Formalism,] w /.hich believes that there is a right answer. (3) Recognition that the system is composed of people with personal experiences and biases. 3. PRIVACY RIGHTS a) MARRIAGE (1) General: marriage is a fundamental right and the government may not interfere directly with that right. (Zablocki, can t marry b/c of child support; Loving, interracial marriage) (a) Marriage is a long, time honored tradition (b) is fundamental to the very existence and survival of the race. (c) is a fundamental right of privacy (d) is older than the bill of rights. (e) involves basic importance in our society. (2) State requiring payment of fees by indigent people for divorce violates due process because it interferes with the right to marriage. (Boddie) (3) The right to marriage is not violated unless there is a direct and substantial violation. (Califano, Bowen) (a) Denying social security to disabled person upon marriage is not infringement because married people have more financial support. (Califano) (b) Denying social security to divorced, but not widows, is not an infringement because divorced spouses are less dependant on spouse s income than widows. (Bowen) b) CUSTODY OF CHILDREN (1) General: The ability to raise one s children and retain custody is a fundamental right. (Stanley, widower father is a fit parent) (a) In order to remove children from custody of a parent the government must provide (i) Notice and 12 of 22

13 (ii) Prove that the parent losing custody is an unfit parent. (2) There is not a fundamental right for an adulterous father to have custody of his child. (Michael H., Mom flip flops between husband and other guy ) (3) Biology: the mere existence of a biological link does not merit constitutional protections. State can terminate the rights of unmarried fathers without providing due process if father does not assert parental rights. (Lehr, Dad didn t assert any interest) c) FAMILY UNITY (1) General: family, including extended family and foster parents, has a fundamental right to maintain family unity. (Moore, 2 grandsons (cousins) lived w/ G ma) d) CHILD UPBRINGING (1) General: parents have a fundamental right to give children the education they desire as long as it meets basic State standards. (Meyer, learning German) (2) State cannot mandate public education for all children or interfere with parent religious liberties. (Pierce, Oregon public schools only; Yoder, Amish educate up to only 14 15) (3) Third parties do not have the right to interfere with a parent s right to direct the raising of the child. (Troxell, grandparent visitation rights denied) (a) The state may interfere with the parental rights of unfit parents. (Troxell) e) PROCREATION (1) OLD RULE: the government may impose sterility as a means to prevent imbecility. (Buck v Bell, feeble minded ) (2) Fundamental Right: the right to procreate is a fundamental right. (Skinner, felony larceny) (a) Irreversible procedure (b) Alternatives to sterilization f) CONTRACEPTION (1) OLD: use of contraceptives leads to adulterous affairs. (2) NEW: the right to contraceptives is a fundamental right which the state cannot interfere with without a compelling interest. (Eisenstadt, dr. distributed condom; Griswold, planned parenthood instructors) 13 of 22

14 (a) Douglas: penumbras/zone of privacy right to privacy is implicit in the constitution through other rights explicitly granted. (i) If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. (b) Goldberg: the 9th Amendment allows for other non enumerated rights (c) Harlan/White: Due Process protects the personal liberty right of married couples to be free of contraception regulation (d) Black: right to privacy is not located in the text of the constitution g) ABORTION (1) General: the right to choose to have an abortion is a fundamental right, falling within the privacy right, protected by the 14th Amendment. (Roe v Wade) (2) OLD: Trimester Approach (Roe v Wade) (a) Compelling Government Interests (i) Protecting Maternal Health (ii) Protecting Potential for Human Life (b) Trimesters (i) First: neither interest is compelling and thus the government may not make any regulations. (ii) Second: interest in protecting the mother s health is compelling and so the government may pass laws that protect women's health. (iii) Third: compelling interest in protecting the potential human life, so the government can ban abortions as long as there is a provision to protect a woman s life. (3) NEW: Viability (Casey) (a) Prior to viability: the government may regulate abortions as long as the regulations don t place an undue burden on the mother s right to have an abortion. (lower standard than strict scrutiny) 14 of 22

15 (b) After viability: the government may regulate or prohibit abortions as long as there is an exception for the life and the health of the mother (4) Intact Dilation & Extraction (D & E): the Partial Birth Abortion Act validly prohibits intact D&E (Carhart) (a) Protects the mental health of women. (b) Promotes the value of human life by avoiding a gruesome procedure. (5) Government Funds: the government may choose to not fund the right to an abortion. Negative right, not a positive right. (Maher, Medicaid can pay for birth, but not abortion; Harris) (6) Spousal Consent: the government cannot require that the spouse consents to the abortion. The government cannot delegate a right it doesn t have. (Danforth) (7) Spousal Notification: the government cannot require spousal notification. (Casey) (8) Parental Notification: the government may require parental notification for minor women as long there is a judicial bypass process. (Bellotti) (9) Informed Consent: more than simple knowledge and appreciation of the the medical aspects involved. (a) The state is allowed to require women to be informed of the moral conception (b) UNDECIDED: (i) Picture of fetus (ii) Statement that life begins at conception (iii) Mandatory counseling at religious centers (10) Waiting Periods: a 24 hour waiting period does not create an unduly burdensome barrier to abortions. (Casey) (a) UNDECIDED: Longer waiting periods may create an undue burden (b) Considerations: rural women, poor women, job loss, etc. (11) Viability: when can the fetus survive outside the womb. (a) UNDECIDED: may states redefine viability? h) MEDICAL DECISIONS (1) General: A competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment. (Cruzan) 15 of 22

16 IV. (2) Lifesaving Procedures: the right to refuse treatment extends to lifesaving food, water, or procedures. (a) State may require a higher evidentiary burden for proving that a person wanted to refuse care. (i.e., clear and convincing Cruzan) (3) Physician Assisted Suicide/Euthanasia: there is no constitutional right to physician assisted suicide. (Glucksberg) (a) Reasoning: (i) Distinction between acts and omissions (ii) Common Law Distinction between battery and suicide (iii) Negative Right/Positive Right (iv) No right to having someone else kill you (v) Falsely assumes that patient removes lifesaving procedures in order to die i) SEXUAL ACTIVITY & ORIENTATION (1) General: privacy interests include the constitutional right to engage in intimate sexual conduct regardless of sexual orientation. (Lawrence, no deviant sex in TX statute) j) RIGHT TO BEAR ARMS (1) OLD: the second protected a collective right but had nothing to do with the individual right to bear arms. (Miller, sawed off shotgun) (2) NEW: the right to bear arms is held by the individual but the government may place certain limitations on the right. (Heller, DC handgun ban) (a) Valid Limitations (i) Licensing requirements (a) Concealed weapons (ii) Dangerous and unusual weapons (a) Types of weapons (b) Types of munitions (iii) Location (a) Schools (b) Universities (3) Incorporation: the federal right to bear arms is incorporated by the 14th Amendment to apply to states. (McDonald) FIRST AMENDMENT RIGHTS FREEDOM OF SPEECH A. Policy Considerations 16 of 22

17 1. Self Governance: political speech 2. Discovering Truth: Holmes marketplace of ideas after debate we arrive at the truth 3. Individual Autonomy: use of speech by individuals to present ideas & support causes is part of our personal liberty 4. Tolerance: by protecting the rights of extremists we promote tolerance within society B. Content Distinctions 1. Content Based: restrictions are subject to strict scrutiny because they are efforts, by the government, to control the message. (Turner Broadcasting) a) Subject Matter: no war demonstrations in the school b) Viewpoint: no anti war demonstrations in the school c) Content Neutral: no demonstrations in the school 2. Content Neutral: (intermediate) neither benefits nor burdens are placed on speech based upon its content and so the speech is subject to intermediate scrutiny. (Turner Broadcasting, mandatory local channels) C. Compelled Speech 1. General: the right to speak incorporates the right to be silent. (Barnette) 2. Compelled speech is an effort by the government to control the message and promote ideologies. (Barnette, pledge to flag) D. Conduct that Communicates 1. Distinguishing Conduct and Speech Test a) Is there an intent to communicate a message? b) Is there a substantial likelihood that the message is understood by others? 2. Regulation of Conduct that Communicates a) Is the government regulating because of important nonspeech reasons or to control the message? (1) Controlling Message: if the purpose is to control the message then strict scrutiny (Texas v Johnson, flag burning) (2) Non Speech Objective (O Brien, burning draft card): (a) Objective: Is there an important non speech reason (b) Alternative Avenues: are there other avenues for expressing the message? E. Vague or Overbreadth 1. Vagueness Doctrine: a law is unconstitutionally vague when a reasonable person cannot tell what speech is prohibited. (Coates, cannot annoy people) 17 of 22

18 2. Overbreadth: when a law is so broad that it creates a realistic danger that the statute will substantially prohibit protected speech activity. (Schad, no live entertainment / nude dancing) a) Overbreadth must create a realistic danger that the statute will compromise First Amendment protections of citizens. 3. Problems a) Chilling effect on speech b) Discretionary enforcement 4. Standing: challenges to a law based on vagueness and overbreadth may be brought by a person who has not been harmed by the restriction. 5. Limiting the Statute: the courts may limit a statute that is overly broad by construing the law narrowly. (Osborne, no child porn but bathtub pics okay) (Jews for Jesus, no 1st Amendment in LAX, statute couldn t be saved) F. Speech Forums 1. Private Property: there is no constitutional right to free speech on others private property. (Hudgens, shopping mall case) 2. Government Property a) Traditional Public Forums (1) Examples (a) Town Square (b) Sidewalks (c) Parks (2) Content Based: government must have a compelling interest and narrowly tailor the means to accomplish that interest. (3) Content Neutral: government may regulate speech so long as the regulation is reasonable and not an effort to suppress expression, using neutral Time, Place, Manner Restrictions (Hill, abortion protesters) (a) Significant Government Interest (b) Open, Ample, Alternative Channels (4) Prior Restraint: an administrative or judicial order, forbidding certain communications, issued in advance of the communication. (a) Disfavored: prior restraints go against the heart of the constitution (b) Permit & Licensing Requirements: only constitutional when (i) Important government reason (ii) Clear Criteria that avoids licensing discretion 18 of 22

19 (iii) Procedural Safeguards: appeal mechanism (Judicial review) (c) Examples (i) Gag order on media from publishing a victim s name (ii) Court order against newspaper criticism of mayor (iii) Permit requirement for a march b) Designated Public Forum: where the government has opened up a non public forum (i.e., a school) for the purposes of free speech. (1) Same protections as the traditional public forums. (2) If opened to one view, the other must have an opportunity as well c) Non public Forum: government can regulate speech so long as it is reasonable and not an effort to suppress expression because the government disagrees with the speaker s view. (a) Students/Prisoners/Military Personnel do not shed their constitutional rights at the door (b) Courts give deference to school authorities to foster a learning environment without distraction. (2) Military Base (3) Prisons (4) Schools: speech is protected unless the authorities can reasonably conclude that it will materially and substantially disrupt the learning environment. (Tinker, black arm bands) (a) Non Political Speech: courts are more deferential to school authorities when regulating non political speech. (Morse, bong hits for Jesus; Tinker, black arm bands against vietnam war) G. Unprotected and Less Protected Speech: there are some forms of speech that the government has a compelling government interest in regulating or that fall outside of 1st Amendment Speech 1. Incitement: no constitutional right to incite imminent lawless action. (Schenck, draft pamphlets) (Brandenburg, KKK) a) Clear and Present Danger: if speech creates a clear and present danger then it may be banned. (1) Iminent (2) Substantial Likelihood (3) Substantial Harm 19 of 22

20 (4) Intent 2. Fighting Words: there is no right to speak words which are designed to provoke a negative emotional response. (Chaplinsky, Jehovah against Fascist racketeer) a) Elements (1) There is imminent harm or disorder, (2) A substantial likelihood of producing illegal action or serious harm, (3) An intent to cause imminent illegality or harm b) Directed: the fighting words have to be directed at a specific individual. c) Statutes must be narrowly drawn to illegalize fighting words. d) Content Distinctions: government cannot regulate content based distinctions within a statute regulating fighting words. (RAV, cross burn 1) e) Intimidation: state can prohibit cross burning with the intent to intimidate. (Virginia v Black, cross burn 2) 3. True Threat a) These encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to particular class of individuals (1) There must be imminence of harm (like assault in Tort) 4. Obscenity: obscene material falls outside the protection of the 1st Amendment. (Roth) (Paris Adult Theatre, finest mature feature films) a) Justifications (1) No social value of obscene material (a) Can government regulate all speech with no social value? (b) Promotes tolerance (c) Promotes autonomy (2) Correlation between obscenity and crime (a) Empirical uncertainties to create justification (3) Community should be allowed to determine what is acceptable. (a) Discretionary choices that allow for b) Definition: not all (Miller, obscene mailers) (1) Prurient (sexual): appeal to the prurient interests (2) Patently offensive: (a) Nudity is not patently offensive or obscene. (Jenkins, movie Carnal Knowledge) (b) Patently Offensive Includes (i) Masturbation 20 of 22

21 (ii) Excretory Functions (iii) Lewd exhibition of the genitals (3) Value: lacks serious literary, artistic, political, or scientific value. (a) National reasonable person standard, not determined by the local community. c) Government Ability to Control Nudity (not necessarily obscene, but able to be regulated) (1) Zoning Law: local governments may control sexually oriented speech, including obscenity, through: (a) Ordinances that limits the number of adult theaters within a block (b) Ordinances that condenses theaters into a single area. (2) Bans on Public Nudity & Nude Dancing: local governments may ban public nudity and regulate nude dancing through requiring g strings and pasties. d) Private Possession: government may not prohibit private ownership of obscene materials (Stanley, bookie with obscene reels) But may regulate (1) Sale (2) Manufacture, OR (3) Delivery e) Child Pornography: child pornography can be outlawed and criminalized even when it would be allowed for consenting adults. (Osborne, photos of adolescent male) (New York v. Ferber) (1) Goal is protection of children (2) Concern is the actual use of children, adult who looks like a minor is not prohibited 5. Profanity & Indecency: government cannot forbid the use of certain words in the public discourse. (Cohen v. California, F the Draft) a) Exception: government may regulate broadcasting of material into people s homes & cars 6. Defamation H. SPEECH ANALYSIS 1. Is speech restricted? (conduct that communicates) a) No, not a 1st Amendment Issue b) Yes, is the restriction by a private party or on private grounds? (1) Yes, no 1st Amendment right. (2) No, is the statute overbroad or vague? (a) Yes, the law violates the 1st Amendment. 21 of 22

22 (b) No, Is the restricted speech considered unprotected speech? (incitement, fighting words, true threat, obscenity, defamation, profanity and indecency) (i) Yes, No 1st Amendment right. (ii) No, Is the speech restricted on a traditional public forum or designated public forum? (a) Yes, is the restriction content based? (i) Yes Strict Scrutiny (ii) No Only Time, Place, Manner restrictions (b) No, (Non public forum) Does the restriction follow the requirements for Schools, Military, or Prisons? (i) Yes, the law is constitutional (ii) No, the law is not constitutional. Analysis Is there a fundamental right? Has the government burdened that right? Can the government justify its actions? What are the ends? compelling? What are the means? Narrowly tailored/necessary (abortion) Unduly burdensome 22 of 22