Cases

Question 1

Strict Scrutiny Found

Answer 1

Korematsu
Class - Japanese
Scrutiny - Strict
Fit - Narrowly tailored because of national security in wartime

Question 2

Restricting marriage on basis of race

Answer 2

Loving
Facts = Virginia banned interracial marriage.

DP
strict scrutiny
- on its face racist
- anti-subordination theory is bad
- unconstit under EP and DP

EP
FR = marriage
Infringed = yes
Sufficient purpose? = gov says yes white supremacy
Sufficiently related? = No compelling state interest for denying marraige based on race

Question 3

Child Custody on basis of race

Answer 3

Palmore
Facts - Divorced, new colored husband, ex sued for child
Strict Scrutiny
- compelling interest of what is best for the child does not survive strict scrutiny

Question 4

Powerless or unpopular groups

Answer 4

Carolene Products FN 4
-Milk nut

Discrete and insular minorities
 Why?
* Because these groups have low political/lobby power
* Fight against tyranny of the majority
* Protect all interested factions
* Undermines the political process safety valves

Question 5

Test screening for new police employees

Answer 5

Davis
- Black men failed skills test for police

Disproportionate impact = is that Blacks not getting jobs as much
Discrim intent = not found on totality of facts, test is neutral and administered to all

Question 6

Using statistical study to prove racism

Answer 6

Kemp
- GAs capital sentencing was racist under statistical study
- RBR

Dispropr impact = more blacks get death sentence
Discrim intent = D did not show that GA legislature enacted or maintained the death penalty statute because of an anticipated racially discriminatory effect

Question 7

City run by elected officials on a majority basis

Answer 7

Bolden
- only Whites were elected since Black was never majority

 Discrim purpose
* P argues that the state’s purpose in drawing the voting district is to invidiously minimize the voting potential of racial or ethnic minorities.
 Discrim effect
* African-American never elected to office

Electoral scheme upheld

Question 8

1/5 public areas designated for Blacks only

Answer 8

Palmer
- 5 public swimming pools, 1 for blacks

Discrim intent not proven b/c many viewpoints and compromises in a legislative decision
Discrim effect - yes

Question 9

Preference for male in hiring

Answer 9

Feeny
- vet preference law - get hired over non-vets. lady lost out on promotion.

Discrim intent = intent has to be that lawmakers made this law BECAUSE OF instead of IN SPITE OF (high burden for P) - no intent found

Question 10

Rezoning to create apartments with mixed race

Answer 10

Arlington Heights
- rezone to multiple-family use to build racially-integrated complex

Discrim intent = not found, even looked at statistical proof, history, sequence of events, admin departures from procedure, leg or admin history, and testimony, but nada

Question 11

School segregation

Answer 11

Dowell
- trying to end school desegregation even in 1972, but Court found remedy ceases and school is truly “unitary”

Held - Board complied in good faith and elimanted discrim to the extent practicable (over reasonable amount of time)

Question 12

Racial balancing at school

Answer 12

Seattle School District
- student assignment plans that relied on race to determine which public schools kids could attend (racial balancing)

Question 13

Cities passing ordinances banning discrim based on sexual orientation

Answer 13

Romer
- Cities banning discrim based on sexual orientation

RBR with a bite?
Sexual orientation gets RBR -
Gov says trying to protect freedom of assoc, moral judgment, etc.
this is not a legit purpose under RBR

“Out of an animus” of an unpopular group

Question 14

Regulating non-related people in household

Answer 14

Moreno
- Food stamps not given to any member of household, because unrelated person

RBR with a bite - not found
Gov claims abuse of system, unstable houses
Overinclusive - alot of household will not commit fraud
Under - regulates less people than it should

actual purpsose = hippie communes

Question 15

Denial of permit to multi-use building for undesirable tenants

Answer 15

Cleburne
- build res facility for mentally disabled people, city denied permit

mentally disabled do not get strict or intermediate
- under 4 categories, they have had pol power and representation

RBR not found
- animus found bec. there is prejudice towards disabled, also all other types of group home allowed

Question 16

Drug users excluded from hiring

Answer 16

Beazer
- NYC says no drug users can work in transit authority

RBR found
- they are not pol minority
- think about diff between drug users and mentally ill

Question 17

Affirmative Action

Answer 17

Fisher
- Top 10% law, and another program that factors race

Strict scrutiny satisfied
- narrowly tailored to attain diversity

Univ gets no deference - must show race-neutral approach would not work as well for same cost. Univ has shown that not reached level of diversity yet

Harvard
- rank 1 thru 6, first looks at race, subcommitte looks at race, considered every step of way, but complies with Grutter

Strict scrutiny not satisfied
There are only 2 compelling interest Court looks at
o Remediating past discrimination
o Avoiding imminent violence from a race riot
- really narrow purposes

 Caveat to this ruling
* Universities can use race if a student talks about how race affected their life – positive,

Anti-subordination principle

Question 18

Dependents and Sex Discrimination

Answer 18

Fronteiro
- law giving armed services with dependents an increase housing allowance and benefits. serviceman can claim wife (regardless of dependency), but servicewoman could only claim if actually dependent)

strict scrutiny not satisfied
- purpose was admin convenience, but gov no provide evidence

Question 19

Law that favors one gender over the other alcohol

Answer 19

Craig
- Prohibit sale of low level beer to males under 21, but allowed to females over age of 18
- stat evidence re traffic safety

Intermediate scrutiny not satisfied
- even though difference in trafficc stas, not enouhg justification to gender-based law

Question 20

Creating similar gender institution that is not equal

Answer 20

Virginia
- Single-sex public higher ed in Virginia, refused to admit women. But VMI created alternative program for women (but differed in offerings)

Intermediate scrutiny
- important purpose is maintaing diversity of public ed institutions. Rejected
- what school has, cannot be extended to women in 2nd school

Question 21

Disability program (not state funded) that did not cover disabilities from pregnancy

Answer 21

Aiello
- Disability program (not state funded) that did not cover disabilities from pregnancy

pregnancy
RBR is satisfied
- purpose is maintain the program’s self-sustainability
- CA allowed to choose because of funding scheme. States can take steps toward accomplishing public purpose.

Question 22

Alimony to one gender only

Answer 22

Orr v. Orr
- In Alabama, only husvands had to pay monthly alimony

Intermediate not found
- Goal = provide help for needy spouses and compensate women for past discrim in marriage and divorce

These goals are not substantially related to making only men pay.
Alimony officers can determine who deserves money
Court suspicious of goals based on traditional gender roles

Question 23

Male applying for all-female school

Answer 23

Hogan
- Male nurse applied for female nursing school and was denied

Intermediate not found
- Mississpi had not purpose for the admission policy. No evidence showing women were discriminated against in higher ed. Poolicy perpetuates female stereotype

Question 24

Car accident, permanent coma, end of life decision

Answer 24

Cruzan
- Car accident, permanent coma and parents tried to get a court order to ender her life, but law required evidence of patient’s desire to do so

RBR was found
- State has an interest in preserving life, which it has shown
- State allowed to do this
- Over? Court finds Too expensive to do case by case. this is a state area traditionally
- Under? baby step argument

Question 25

Assisted suicide and doctors

Answer 25

Glucksberg
- WA Law that says promoting attempted suicide is a felony , D are doctors

FR?
- must be objectively deeply rooted in Nation’s history and tradition
- Court must carefully describe the right

RBR is found
WA interest is preservation of human life, ethics of medical, protect vulernable groups
- Over? this applies to all patents, but gov says this is our area
- Under? what about hobos or drug addicts? Baby steps tho

Question 26

Aiding and abetting suicide

Answer 26

Vacco
- NY Law that prohibited aidiing or abetting suicide

RBR is found
- NY purpose prohibit killing, prevent suicide, etc.
- Over? Too expensive and gov area of tradit policy
- Under? why not hobos, death penalty, drug addicts etc.

Question 27

Parent not paying child support trying to get married

Answer 27

Zablocki
- Law that if parent has not paid child support, they cannot get married

FR = marriage
Infringed = outright infringement
Purpose = interest to provide counseling, welfare of children, pressure on fathers to pay
Sufficiently related = None interests fit well. No req for counseling, no money for counseling, no resources for kids, no protection for children

Question 28

Same-sex marriage license of out-of-state couples

Answer 28

Obergefell
- Some states state law is between man and woman, P married in MD then moves back to Ohio, but Ohio would not put spouse on death certificate
-Ps adopted children, but could not both be legal parents under Michigan law

FR = marriage
Infringed = yes
Suff purpose = States interest in tradition
Suff related = no, because right to personal choice infringed, two person union is harmed, saefguards families, protecting the social order

Question 29

Disabled or feeble-minded and reproduction

Answer 29

Buck
- Feeble minded and epileptic, VA law force sterilization

FR = reproduction
Infringed = yes
suff purpose = mental defects are hereditary, offspring may commit crimes, eugenics
suff related = Court says yes, those that sap strength of state should be asked to sacrifice, but reliance on faulty science

Question 30

Forced Sterilization of Criminals

Answer 30

SKinner
- OK law that compulsory sterilization of repeat criminals

FR = pro-create
Infringed = yes
Suff purpose = gov claims eugenics, etc.
Suff related = does not survive strict scrutiny. Dangers of eugenics movement. offspring is precious thing person can do. danger of genocide

Question 31

Contraceptives

Answer 31

Griswold
- Law = any person who assists, abets, counsels… someone to get a contraceptive

FR = privacy of married couples
Infringed = yes
Suff purpose = traditional fam values, preventing adulteroous relationships
Suff related = No, intrudes on intimate privacy in the home. This does not survive. Could have less intrusive means

Question 32

Distribution of contraceptives

Answer 32

Baird
- MA law crime to give away drug, article for prevention of conception with carveout for doctors giving to married couples to prevent pregnancy

FR = access to contraception
Infringed = yes
Suff purpose = prevent premarital sex and spread of disease
Suff related = no, unlikely that MA is trying to stop premarital sex and punish them with unwanted pregnancy and possible disease. Also people have right to privacy

Question 33

Abortion

Answer 33

Casey
- PA law required informed consent and a 24 hour waiting period for women trying to get abortion

FR = right to abortion
Infringed = yes
Suff purpose = interest in begining of fetal life
Suff related = not strict scrutiny, but RBR with a bite (substantial infringement).
- its about the amount of obtsacles to get an abortion

Dobbs
- MS law = 15 week ban

SDP
- find no animus to women, so no class problem

EP
FR = looks to hisstory and tradition in 1800s and finds that abortion was crime,
Right to pribacy? not decided, but abortion is different.

Question 34

Poll taxes

Answer 34

Harper
- Law is a poll tax (money used for gen purposes)
- but voting is a FR and gets SS
FR = voting
- unsure where textually rooted
Infringed = yes
Suff purpose = raise money, protect integrity
Suff related = no, raise money other ways. Does not protect integrity. No data.

Question 35

Malapportionment of votes

Answer 35

Sims
- Alabam malapportionment

FR = voting
- counties in state not meant to be sovereign
Infringed = yes
Suff purpose = rural areas protected from disenfranchisement
Suff related = no, this scheme is offensive to the Constitution and does not pass SS

Question 36

Voting recount

Answer 36

Bush v. Gore
- Florida voting thing

FR = voting
Infringed = yes
Surr purpose = pres election expediency
suff related = found yes, in order to maintain status quo. Bush legitmacy of presidency

Question 37

Free Speech on Signs

Answer 37

Reed
- Political signs get favorable treatment, commercial signs smaller

Content-based
- explicitly content-based, benign motive will not save law from SS
SS
- Town argues 1. preserve aesthetic and 2. traffic
- Not compelling, underinclusive bec. not including signs that are aesthetically displeasing or bad for traffic

Question 38

Trademarks and Speech

Answer 38

Tam
- Lanham Act Disparagement Clause - no trademark that disprages people

Not gov. speech, gov is only approving

Facial viewpoint discrimination because regulating speech on whether offensive

Gov interest = stop marginalized people from offensive material.
- Court says this is directly related to speech and this is censorship, which CANNOT be a compelling
2. promote orderly flow of commerce
- Court says rule not narrow enough to fit this. Does not drive out trademarks that support discrimination

Expansion of First Amendment protections

Question 39

Zoning ordinance and adult theater

Answer 39

Renton
- zoning ordinance that prohibited adult theaters near res, dwelling, church park or school.

Secondary effect doctrine = gov regulation to combat “secondary effecst” of speech rather than speech

good arguemnt for gov side of speech regulation - even tho case outlier

content-neutral because of its purpose (secondary effect)
- aimed at effects on surrounding ocmmunity
- content based on its face, but purpose is neutral
- leg history showed interest in preserving quality of urban life

Question 40

Goverment Choosing Monuments in Park

Answer 40

Summum
- City refusedto erect monument that contained the Seven aAphorisms of Summum in a public park that had Ten Commandments

Government speech

Government allowed to speak and only subject to intermediate scrutiny?
- prevent clutter of parks

Question 41

Vague law

Answer 41

Coates
- law that made it crim offense for 3 or more people to assemble on a city sidewalk

A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is permitted.

Vague because the actions was not specifically designated

Question 42

Overbroad law

Answer 42

LAX Case
- all free speech prohibited

 A law is overbroad if it regulate substantially more speech than the First Amendment would allow

included everything including T shirts and reading newspaper = overbroad

Question 43

Live nude dancing

Answer 43

Schad
- live nude dancing that violated commercial zoning ordinance

City barred all forms of live entertainment and failed to justify broad restriction. Held too overbroad because failed to meet burden of showing that a less restrictive regulation would not have satisfeied its interests

Question 44

Censorship or law preventing free speech or magazine

Answer 44

Near
- MN Law penalty for publishing malicios, scandalous or defamatory magazine

This is censorship.
Gov argues national security - wartime. Court says this is censorship and contrary to free speecha nd press

Question 45

Trying to prevent publication in name of national security

Answer 45

NY Times
- Pentagon Papers, gov trying to seek injunction to stop publication in name of nat security

Prior restraint

 Does the information pose “direct, immediate, and irreparable damage” to the Nation?
 This is a high standard

Question 46

City ordinance requiring permit to solicit door to door

Answer 46

Watchtower Bible
- Jehovas witnesses. Village ordinance trying to prohibit JWs from going on private res property to promote any casue without getting a permit

gov interest = fraud, privacy, crime

 The government must have an important reason for the licensing and the law must be necessary to achieving those interests (intermediate scrutiny)
 The government mist provide clear licensing criteria that leaves virtually no subjective discretion to the licensing authority
 The government must provide procedural protections

Question 47

Compelled speech

Answer 47

Barnette
- Mandatory flag salute, Ps religion forbade it

Compelled speech
the right to speak also involves the Right Not To Speak

o Court’s finding of purpose
 Concern of the need to create national identity
o This is Viewpoint based
 Related to a message
o Least restrictive way to achieve gov interest of promoting citizenship?
 Improper and ineffective way of doing this

Question 48

Licensing for health facilities

Answer 48

Becerra
- Requirements for licensed and unlicensed facilities is different
- unlicensed required to say unlicensed and not provoiding healthcare = targets Pro-lifers

Content-based restrictions on professional speech are subject to strict scrutiny. In other words, professional speech is not a separate category of speech but is subject to the same strict-scrutiny requirement of other content-based speech. Two related exceptions are
(1) required disclosure of factual and noncontroversial information about services a business will perform, and
(2) regulations of professional conduct that may incidentally burden speech.

Both notice requirements are content-based. As a result, the requirements are subject to strict scrutiny. However, the Court does not apply strict scrutiny, because the requirements cannot survive even lesser scrutiny.

Question 49

Law that defunds or provides no funds for abortion

Answer 49

Rust
- Federal funding for family planning services but no funds could go to programs whgere abortion was used as a method of family planning

Constitutional
* Gov can choose what speech to subsidize
* It is subject based – speech that talks about contraception, but not abortion
* It is content based but not viewpoint based
* Content based regulations are acceptable
* Providers are free to provide abortion info outside of the Title program

Question 50

Government funding lawyers under certain conditions

Answer 50

Velasquez
- Creation of Corp that provide funds to lawyers who represent indigent clients under certain conditions

 Viewpoint-based funding decisions can be sustained when the gov itself is the Speaker, because the government itself is politically accountable
 Rust was regulating private speakers, but here this is the Gov speaking
 Lawyers here are not government speakers, the lawyers are beholden to their clients
 Distinction from Rust
* Abortion exceptionalism warps constitutional law

questions here on when government is funding speech through private actors – is government itself speaking through the private actors or is government facilitating private speech (Rust & Legal Services Corp.)

If there is a funding petition
 Gov will argue Legal Services
 P will argue Rust

Question 51

Incitement to perform legal activity

Answer 51

Brandenburg
- KKK leader punished for advocating terrorism to achieve political reform

Test
 Intent – the Speaker must intend to incite or produce unlawful action
 Immanency – the unlawful action must be imminent
 Probability – And the unlawful action must be likely to occur

Court says lacked imminence (no call for immediate action). Threat was remote.

Question 52

Gov prohibiting people from providing material support

Answer 52

Holder
- Law prohibits giving material support or resources to designated terrorists. Ps want to do that

Law allows other kinds of support. Gov prohibits material support. material support is moreso conduct and is allowed to be regulated by gov.

Question 53

Person speaking to crowd and riling them up

Answer 53

Chaplinksy
- Jehovah’s Witness talking to crowd, police warned him, disturbance occrred, police escorted him away.

o Words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace”
 Aesthetics – they’re unnecessarily vulgar. “They’re no essential part of any exposition of ideas.”
 Offensiveness – they offend the listener. They “by their very utterance inflict injury.”
 Harm – they trigger fist fights. This is in the same realm as incitement of illegal activity, only this is getting more at the harm factor
o “Fighting words” can only be punished to the extent that they are likely to produce a violent response and they must be directed at another person
 Cannot be at a crowd or tweeted

• Hostile audience
  o “hostile audience/heckler’s veto” cases involve offensive language that is not directed at any specific listener but rather threatens to provoke a general audience.
  o Clear and present danger test – it’s permissible to punish a speaker if his or her speech poses a clear and present danger of causing violence by the audience
  o The reaction of a hostile audience should not silence speech unless three conditions are met
   Crowd control is impossible
   The speaker ignores the police, and
   The speaker has provoked the reaction

Question 54

Hate Speech

Answer 54

R.A.V.
 Law articulated hate speech concern
 MN SC interprets statute and finds words in the statute – find fighting words and can limit reach of this statute so as to fall into fighting words exception

Gov cannot engage in viewpoint or subject matter discrimination with otherwise unprotected categories of speech
o Cannot target demo or rep , has to target all as viewpoint reg
* When Gov is regulating an unprotected category of speech (fighting words, incitement, obscenity, etc.)
* Then gov cannot apply viewpoint or subject matter
* The problem with R.A.V. is that the city was trying to do a fighting word ordinance
o Scalia said that the viewpoint is embedded in this fighting word ordinance (the ordinance goes beyond fighting words). Because of that, this is attempting to regulate speech and is unconstitutional)
o Hate Speech
 Always consider a vague and overbreadth when there is a Hate Speech Ordinance
 Issue of hate speech is a balance between liberty of individual to speak and equity (since hate speech perpetuates inequality, usually on minority groups)

Question 55

Cross Burning

Answer 55

Black
o Barry Black was a KKK leader andnburned st a rally
o And one who did it at a black neighbor because ghey shot in their backyard

o Cross burning is historically a threat under white supremacy
o Can statute specifically single out cross burning?
o Very specific viewpoint here
o Particular historical connection to race
o Why are true threats not protected speech
 Protects individuals from Fear of violence
 Protects individuals from the disruption that fear engenders
 Protects individuals from possibility that threatened violence will occur

Question 56

Mailing obscene material

Answer 56

Miller
- CA law prohibited distribution of obscene materials

o Obscenity standard
 Whether average person, applying contemporary community standard would find that them work taken as a whole appeals to the prurient interest
 Whether the work depicts or describes, in a patently offensive. Sexual conduct specifically defined by the applicable state law.
 Whether the work, taken as a whole, lacks serious literary artistic, political, or scientific value

States have a legit interest in prohibiting mass mailing of obsecene

Question 57

Child pornography

Answer 57

Ferber
- NY law prohibiting persons from knowingly by distributing child porno A states interest in safeguarding the physical and psychological well being of a minor is compelling

Not legally obscene under Miller (no physical or psych harm here)

o Distribution of photographs and films depicting sexual activity by juveniles is related to actual sexual abused
o The advertising and selling of a child porn provides an economic incentive for the exploitation of children
o Almost no value. Exceedingly Dr minimis
o On balance, the evil to be prevented far outweighs whatever value the material has

D must have knowledge

Question 58

Possession of obscenity in a home

Answer 58

Stanley
- Search house found obscene films

 The government cannot criminalize private possession of obscenity in ones own home
* The Constitution protects the right to receive information and ideas
* There is another layer of privacy here because this prosecution stems from possession in ones home
* The government does not have the power to control our minds
 Types or privacy
* Locational
o Within privacy of the home (compare to Griswold case)
o Griswold with contraception
o Something sacred about the privacy of the home that gov cannot enter
* Autonomy
o Intimacy
o Griswold also had intimacy aspect
* Association
o Privacy also has right to choose your company

But this holding does not apply to child porn

Question 59

“Fuck the Draft” Jacket

Answer 59

Cohen
- Fuck the Draft jacket in public

 Why not obscene
* No erotic component
 Why not fighting words?
* No insult or anything
* Hostile audience?
o No evidence that audience heard it
 Profanity
* Sometimes only profanity will do
* In order to express full extent or outrage of idea

Question 60

Vulgar on the radio

Answer 60

Pacific Foundation
 George Carlin broadcasted on NY radio
 A lot of swear words
 Fcc sent warning

 Broadcast media is uniquely pervasive and invasive presence because in privacy of home
 Harm is done once its witnessed
 Children can hear it, so early
 Re warning of content
* Does not help because if you tune in late you may miss the warning

Question 61

Regulation on prices of pharmas

Answer 61

Virginia Consumer
- Law prohibited ad of prescription drug prices

Advertising does increase consumption of drugs
Social speech will always be
 Better for capitalism
 Helpful for consumers to get info
 Just cause money. Does not mean not speech

o What is commercial speech?
 Advertising can be pure political
 Ad can be over and under inclusive
 Court defines here as speech which does no more than propose a commercial transaction

Question 62

Gov trying to regulate adverstising of utility

Answer 62

Central Hudson
- NY ordered electric utilities to cease advetising that promoted use of electricity b/c winter bad and fuel shortage

Is the speech protected: Meaning id it truthful, nondeceptive and not advertising illegality?
* Illegal speech is not that valuable
* Here, not deceptive. Just utility company about utility

Is the gov interest substantial / important?
* Here, does prevent no more speech than necessary?
* This is blanket regulation so this is overbroad

Does the regulation directly advance the gov interest asserted?
* Deceptive speech is not protected
* Trade names could be deceptive when skilled professionals are involved
* Certain solicitation can be regulated such as regulating attorney solicitation
* Here,
o Court requires some evidence to the effect, buy does not have to be extremely close
o Mere speculation is not enough

Is the gov regulation no more extensive than necessary to serve that interest. There must be a reasonably close fit, but not necessarily a perfect fit

Question 63

Defamation of a Politician

Answer 63

NYT v. Sullivan
- alleged defamatory things about Alabama commissioner treatment of blacks and MLK.

There are four requirements :
(1) The plaintiff must be a public official or running for public office;
(2) the plaintiff must prove his or her case with clear and convincing evidence;
(3) the plaintiff must prove falsity of the statement; and
(4) the plaintiff must prove actual malice — that the defendant knew the statement was false or acted with reckless disregard of the truth.

The evidence presented is constitutionally insufficient to support a judgment for Sullivan as there was no indication that actual malice existed

Question 64

Draft Cards Burning

Answer 64

O’Brien
- Draft. P burned draft cards on the courthouse.

If conduct contains both speech and nonspeech elements, an important or substantial governmental interest in regulating the nonspeech element may justify some limitations on constitutionally protected speech elements.

A government regulation is sufficiently justified if
(1) it is within the constitutional power of the government,
(2) it furthers an important or substantial governmental interest,
(3) the governmental interest is unrelated to the suppression of free expression, and
(4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest

1. Congress can constitutionally classif individuals for military service
2. the reg systems services a substantial purpose in draft
   - destruction of cards make it difficult for registration
3. gov interest is limited to preserving functionality of draft
4. Thus this is no greater than essential

Question 65

flag burning

Answer 65

Johnson
- P burned flag during political demonstration and convicted

To determine whether conduct is sufficiently communicative to invoke First Amendment protections, the court examines whether there was an intent to convey a particularized message through the conduct and the likelihood that the message would be understood by people viewing it.

If the conduct is classified as expressive, the court must determine whether the state’s regulation is related to the suppression of free expression.

If the regulation is not related to expression, the court must apply the analysis for regulations of non-communicative conduct outlined in O’Brien

However, if the regulation is related to expression, then the court must utilize a rigorous standard to determine if the state’s interests justify the conviction.

Here,
Expressive conduct (pol demonstration)
Texas claims prevent breach of peace and preserving flag as a symbol
- first interest does not apply - no disturbance of peace
- second interes is related, TX worried people will believe flag does not stand for symbol national
Thus, O’Brien does not apply.

Americans allowed to express political viewpoint. State cannot restrict that in some ways but not others. Thus, D goes free

Question 66

Picketing near school on sidewalk

Answer 66

Mosley
- Chicago adopted an ordinance that prohibited picketing within one hundred fifty feet of a school. However, it exempted peaceful labor picketing from this general prohibition

“Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say.”

 A place like a town square, continue to be public even in a privately owned town (e.g. mining town)
 Public forum, parks, the street – sidewalks are a traditional public forum
 Military bases, prison, - these are limited public forums
* For order and security, there can be limits on the public forum standard

Here, sidewalk in front of school is a traditional public place
 Could the school have said no speech on this sidewalk at any time?
* Yes, because that would not restrict any content
* School may not want people screaming or protesting outside of schools
* So Court could allow restrictions that comport with the use that the land is used for (e.g. no loudspeakers outside abortion clinic because there are medical procedures inside and would be dangerous)
* The use makes a big difference
 Once grant use of public forum, you cant restrict on the subject matter of the speech

Question 67

Regualting speech near healthcare facility

Answer 67

Hill
- statute regulated speech-related conduct within one hundred feet of the entrance to any health care facility. Cant pass leaflet or engage with people. Dont care about content

Content neutral on its face

 This is not a regulation – it is a regulation of where speech can occur
 This was not adopted because of a disagreement with the message conveyed
* Applies to all demonstrations – doesn’t matter what the viewpoint is
 State’s interest in protecting access and privacy are unrelated to the content of the demonstrator’s speech

Question 68

law re standing near abortion clinic

Answer 68

Coakley
= MA law make it illegl for anyone to stand within 35 feet of abortion clinic except employees and customers

Fixed Buffer Zone
 Anyone is now on notice on who comes into this fixed buffer zone of 35 feet that is not patient, escort, worker, etc., then this law has been violated.
 The act is content neutral on its face

 Purpose here
* Worried about safety at healthcare clinics
* Governments important interests are access to healthcare, safety, unobstructed use of sidewalks and roadways

 Intermediate scrutiny here, but does not find intermediate scrutiny
* Court says this does not meet intermediate scrutiny because they have sacrificed speech for efficiency here. Did not try everything else before trying this.

• Sufficient alternative channel
  o Tremendous burden on P, she wanted to do compassionate, 1 on 1 intimate conversations that makes her success in the first place
  o Court says there are other ways such as criminal prosecution

Question 69

Law regulating speech at school

Answer 69

Hastings
-  If you wanna be a club, then you have to have a nondiscrimination policy that you allow anyone into your club regardless of views

Limited Public Forum
* Why is Hastings a limited public forum?
o Public school
o Run by admin, school has an education mission as an undertaking and allowed to make decisions about the culture of their university, and what university’s values and culture are
o Court says this is well withing the Administration’s prerogative
o If we are having clubs affiliated with the law school, we can put requirements in that protect certain laws of the school and the state

Not saying cannot be a club. but cannot use benefits.

 Gov can decide on what to fund or support, but must be viewpoint neutral

Question 70

State wanting information about membership

Answer 70

Patterson
- Alabama wanted NAACP info about its members

3 reasons why protect freedom of association
 Association is necessary for effective speech (resources)
 Self fulfillment for groups
 Groups are socially valuable in itself

Freedom of Association is unconstitutionally infringed in four contexts
 When the government punishes group membership
 When the government requires disclosure of group membership
 When the government “forces” association by requiring monetary contributions
 And when the government “forces” association by preventing discrimination

Punishment for group membership ELEMENTS
 The individual must actively affiliate with the organization
 The individual must know of its illegal objectives; and
 The individual must have the specific intent of furthering those objectives

The government requires a group to disclose its members
 Disclosure would impermissibly chill association
* Fear that forced disclosure would reduce association
 There is a link between privacy and freedom of association
 Under NAACP v. Alabama, the government can only require disclosure of group membership if it satisfies strict scrutiny

Question 71

Law requiring union dues

Answer 71

Janus
= Illinois law required public employees who were not members of the exclusive bargaining union to nonetheless pay dues to the union.

o Rule – public sector unions cannot automatically enroll workers as union members nor collect fees from non-union members
 Automatic enrollment and forced dues violation freedom of association
 Expansion of freedom of association

o Where the government “forces” or “compels” people to associate with people and messages with which that person disagrees (JANUS)
 Core issues of collective bargaining – namely negotiations over wages and benefits
* Are matters of significant public and political important when the employer is the government
o Which means that any fees that government employees must pay to the union inherently go to speech that is political in nature
 For a union representing public employees to collect dues
* Individuals have to opt-in. automatic enrollment and mandatory dues is an unconstitutional violation of the Freedom of Association

Question 72

Young boys only club

Answer 72

Jaycees
- Jaycees for young men, revoked charters for chapters that admitted women

Where the government forces association by preventing discrimination
 Associational rights protected by the First Amendment
* Intimate association – Relationships that include
o Relative smallness
o A high degree of selectivity in decisions to begin and maintain affiliation; and
o Seclusion from others in critical aspects of the relationship
* Expressive association
o When excluding others is integral to the message
 Discrimination is a key aspect of the expression
o And the inability to exclude would significant burden the ability to express that message

Excluding women is not integral to the expression of Jaycee’s message
 Including women requires no change in the group’s creed to promote the interests of young men
 It imposes no restrictions or the group’s ability to exclude people who do not share its viewpoints or ideology
 Women already get to participate in many of its training and community activities
 To assume that women have different views than men is sex stereotyping

Jaycee applies strict scrutiny and concludes
 Compelling state interest unrelated to suppression of expression in stopping discrimination
 And anti-discrimination laws are least restrictive means to achieve that interest since it does not interfere with Jaycees integral message or expression

Answer 73

Boy Scouts
The Scouts assert that homosexual conduct is inconsistent with the values it seeks to instill. Terminated dude they found out was gay

Scouts argue that this is integral to the message because the message is being “clean and morally straight”
 Court says that group gets to define the nature of the message, that clean and morally straight means being not gay
o The majority finds that being anti-homosexuality is integral to the Boys Scouts message
 It then must determine whether compliance with the antidiscrimination law significantly burdens that message
* And the Court here says yes because the Scouts say it would – that this would signal to the world that it approves of homosexuality
* “as we give deference to an association’s assertions regarding the nature of its expression, we must also give deference to an association’s view of what would impair its message

General rule
 Although right of free association includes right to exclude people, generally the government has a compelling interest in non-discrimination such that it can enforce its anti-discrimination laws against private associations as the least restrictive means to achieve anti-discrimination goals

Two exceptions to this general rule
 Courts will protect association and allow group to discriminate in two contexts (limited exceptions to anti-discrimination laws)
* Intimate association: very limited, basically family and friends
* Expressive association where discrimination is integral to the group’s expressive activity so that forcing inclusion of someone will truly impede the group’s message

Question 74

Objects based on own belief

Answer 74

Seeger
- Conscious objecter to the draft based on his own belief

 A religious belief is one that “occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God”
o The Court in several other cases has said that the belief must “function as a religion” in an individual’s life – even if the belief doesn’t require the existence of a deity
o Courts cannot attempt to determine the truth or falsity of beliefs

Answer 75

Ballard
- Ballards solicited funds and membership by claiming they can heal ailments and diseases.

 It is unconstitutional for a jury to determine whether religious beliefs are true or false
 However, the jury may constitutionally evaluate whether the individual who professes to hold those beliefs sincerely holds them

 Cannot inquire whether it is an appropriate religion
 We are allowed to determine whether these people believe it for purposes of fraud
 Know something to be false, cannot induce someone to do something that you know is fraudulent

Takeaway
o Courts give a lot of deference to belief systems no matter how far they stray from the norms

Question 76

Use of peyote or sacramental shtuff

Answer 76

Smith
- Oregon state law prohibits the knowing or intentional possession of a controlled substance unless medicinally prescribed. Ps were fired from their jobs after they ingested peyote for sacramental purposes at a Native American Church service

neutral on its face

an individual’s religious beliefs have never been held to excuse him from compliance with an otherwise valid and neutral law prohibiting conduct that the State is free to regulate.

The state of Oregon may constitutionally make an exception to its drug laws for the religious use of peyote if it wishes to do so through the legislative process. However, it is not the role of the courts to create such legislative exceptions

Question 77

Religious organization

Answer 77

Fulton
-  Philadelphia refuses to refer kids to CSS because their position against gay couples violates non-discrimination laws

Does violate free exercise clause
 This case does not fall under Smith
Neutral
o No evidence passed to try to restrict a certain religion’s practice
o Was there benign reason? Or was it passed to burden a specific religion?
o Court here says this law is neutral
General applicability
o Court says this does not apply here
o Here, this exception/clause that allows commissioner discretion to exempt this rule means that this rule is not a rule of general applicability
o Therefore, Court applies strict scrutiny
o So does this survive strict scrutiny?
 Compelling interests
* Has to be more than speculation
* Interest is not weighty enough to justify denying them free exercise
*
o Does City’s action burden CSS religious exercise?
 CSS has duty to care for children, and the City was not letting them do that
 CSS would either have to curtail their mission, or approve of relationships that are inconsistent with their views

Question 78

Private company not wanting to provide services to certain people

Answer 78

Masterpiece Cake
 Cake shop
 Source of opposition – designing a wedding cake was a creation and his speech and the he had a sincerely religious held belief that marriage is between man and woman
 Will bake any other kind of cake, just not a wedding cake to gay couples
 Colorado Law Anti-Discrim Act – no discrimination in public services including sales and transaction to public

 Religious objections to same sex marriage does not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law
 The commission disparaged religion
* Describing it as despicable
* By characterizing it as merely rhetorical and insincere
 The substantive departure from how the Commission has dealt with claims like his in the past is evidence of discriminatory intent
 Court says – we do not have to reach the question of whether this is a free speech/free exercise issue, because we do not need to apply Smith, because this is not general applicability. There was hostility towards religion.

Question 79

Photrapher and editor refusing to serve certain people

Answer 79

303
o Facts
 Wedding photographer and editor
 Offering product to public, but this is a tailored artistic product
 Expressive product, and refuses to create for gay couples

 Is this expressive conduct?
* It is speech – it is expressive, not just pure conduct
 P claims she is being compelled to speak a message she does not agree with
 Court draws parallel to Dale case (boyscout case)
 Court sayhs public accommodation law is important, and can be applied to accommodation but not to expressive activity
 “When a state public accommodations law and the Constitution collide, there can be no question which must prevail.”
 Colorado argues that this is about sale of ordinary goods and speech is only incidentally burdened
* Court replies that yeah she offers this for money, but this does not change that this is her expression
 “Can the government coerce an individual to speak contrary to her beliefs on a significant issue of personal conviction all in order to eliminate ideas that differ from its own?”

• Dissent argues that “For the first time in its history, the Court grants a business open to the public a right to refuse to serve members of a protected class.:

Question 80

posting of religious displays

Answer 80

Allegheny
 Two religious issues with holiday decor
* Creche
* Menorah – area with a Christmas tree and sign saluting liberty

• Gov may not promote or affiliate itself or discriminate on the basis of religion
   Did gov display cross into line of endorsement?
• This is subjective – which makes it difficult
• It is content based – it is a fact-based analysis on whether it crossed into endorsement
   Court found that Creche alone is unconstitutional, but Menorah is constitutional
• Cites Lynch –
• Facts – Menorah is part of winter holiday theme that is more neutral

 Looks to the purpose or effect of the religious displays
 Endorsement is key here, and endorsement can be symbolic
* The government may not symbolically endorse religion over secularism or one religion over others
 Context matters in terms of whether this is symbolic endorsement

Question 81

School prayer at football

Answer 81

Santa Fe
 Santa Fe school district had a student chaplain that was elected by student body who recited prayer to football over loudspeaker at football games
 Was at first a Christian prayer, then became a non-sectarian prayer

o First issue – whether this is private speech or government speech?
 If private speech, then reviewed under First Amendment
 If its government speech, then reviewed under EC
 This is organized by school, using PA system, related to school functions, on school grounds
 This is gov speech thus EC
o What secular purpose for school-led prayer?
 Promoting good sportsmanship
 Student safety
 Solemn moment
 Terms around it were religious
 The only type of solemnizing message was a convocation (appeal to divine assistance)
 This does not appear to have a secular purpose
o What about the Effect?
 Effect = casts those who do not participate in the prayer as outsiders
 Football game is a huge community event
 Some kids (footballers, cheerleaders, admin) had to be at the school and could not choose whether to be there or not
 Courts strongly speak on Effects
* This sense of being outsiders
o Slide

Students might feel coerced at a football game even though it is an extracurricular event
* Attendance is not required (for most students), but some students have no choice but to be there
* Informal pressure is extremely high. High School games are important to the community

Question 81

Entanglement of State and School

Answer 81

Lemon
statute providing financial support to nonpublic elementary schools, including church-related schools, that gave reimbursement for teacher salaries, textbooks, and instructional materials for some secular subjects. Rhode Island enacted a statute under which the state paid teachers in nonpublic schools, including church-related schools, a 15 percent supplement of their annual salary. Teachers were only eligible for the supplement if they taught subjects offered in public schools with instructional materials used in public schools, and if they agreed in writing not to teach religion classes while receiving the salary supplement.

Neutrality View – the predominant way that Court has viewed EC cases for last 50 years, but of course new supreme court

o Lemon Test
 The statute must have a (predominant) secular purpose
 Its principal or primary effect must be on that neither advances nor inhibits religion; and
* This is usually where the issue lies – did the gov act/law have the primary effect of advancing a specific religion
 The statute must not foster “an excessive government entanglement” with religion.
* (over time this prong has been collapsed into prong 2)
o A “reasonable observer”
o The reasonable observer is “presumed to possess a certain level of information that all citizens might not share,”
 Including the “history and content of the community and forum in which the religious display appears”

Held stipend was unconstitutional

Question 82

Prayer in class

Answer 82

Vitale
- New York directed that a prayer be spoken aloud by each class in the presence of a teacher at the beginning of each school day