Cases

Question 1

Railway Express Agency v. New York

Answer 1

No equal protection violation when a statute prohibited truck advertisements to be sold but not for advertising one’s own business, in order to prevent distracted driving. Rational basis review. The classification related to the purpose and did not contain discrimination protected by the equal protection clause.

Question 2

United States Railroad Retirement Board v. Fritz -

Answer 2

No equal protection violation when new legislation denied dual benefits [social security and railroad retirement plan] to railroad workers unless they worked for the railroad in 1974 or had worked for 25 years by then. Rational basis review. Congress could have eliminated benefits for all classes, so it is not impermissible to draw lines. There are plausible reasons for Congress’s action.

Question 3

Moreno

Answer 3

Changing “household” in the foodstamp program to exclude any household where someone is unrelated to any other member of the household was an equal protection violation. Rational basis review. The classification is wholly without any rational basis: the classification is irrelevant to the stated purposes of the Act, legislative history showed congressional desire to harm a politically unpopular group (not a legitimate governmental interest) and the Act contains independent provisions aimed at the same problems.

Question 4

Romer v. Evans

Answer 4

An amendment prohibiting all legislative, executive or judicial action designed to protect homosexual persons violated equal protection. Rational basis review. The amendment classification had no rational relationship to an independent and legitimate legislative end. The breadth of the classification is so discontinuous with the reasons offered for it, it is inexplicably by anything but animus toward the class.

Question 5

City of Cleburne Texas v. Cleburne Living Center

Answer 5

• Equal protection violation when the city denied a special use permit for a group home for the intellectually disabled, when the zoning otherwise enabled it. Enhanced minimal scrutiny(rational basis+) implied (but not intermediate, as District Court applied). The record did not support a rational basis for believing the home would pose any threat to the city’s legitimate interests. Requiring the permit rested on an irrational prejudice against the intellectually disabled.

Question 6

Obergefell

Answer 6

Prohibiting same sex marriage is a violation of the equal protection clause. Rational basis + implied, homosexuals quasi-suspect class. The laws affect a fundamental right (to marry).

Question 7

Washington v. Davis

Answer 7

A qualifying test for police applicants that four times as many blacks than whites failed was not an equal protection violation. The test was neutral on its face, and there was no showing of animus, bad intent, or something like it. Simply affecting a greater populaiton of one race, without the discriminatory purpose, did not make ends otherwise within the power of the government to pursue invalid. The Court declined to apply the Title VII standard to resolve the equal protection issue.

Question 8

Brown v. Board of education

Answer 8

Segregation in public schools under separate but equal doctrine is an equal protection violation. May be physically equal, but unequal by virtue of segregation because of intangibles, such as the effect on the student’s mental health.

Question 9

Bakke -

Answer 9

An admissions process that set aside 16 places out of 100 for “blacks, chicanos, Asians and American Indians, and established a separate admissions process for those 16 spaces, violated the equal protection clause. When race is a factor, it is inherently suspect, so strict scrutiny applies. However, Bakke did not preclude race from being used under any circumstances. The action was no remedial because there was no evidence of that specific school having a discriminatory policy of admissions. The action had a harmful impact on third persons, i.e. Bakke did not have anything to do with implementation but is harmed by it. Follows the colorblind theory. Bakke rejects racial balancing and holds that the racial quota is not narrowly tailored to achieve diversity, and that the compelling interest of diversity cannot be solely racial. Although white is not a suspect class under Footnote 4, the racial the classifications trigger strict scrutiny. The dissent argued for intermediate scrutiny, so there is a unanimous agreement that racial classifications should be subject to something more than rational basis, even when it is not a suspect class.

Question 10

Croson

Answer 10

The City of Richmond required contractors to subcontract at least 30% to Minority Business Enterprises. This was a race conscious distribution of benefits, so apply strict scrutiny. Leaves open the door to use race when legitimate.
Court rejects the argument that it is remedial action because proof wasn’t given for this particular discrimination. We need proof of actual, particularized discrimination from the government [Richmond].
30% quota cannot meet narrowly tailored requirement.

Question 11

Grutter/Gratz –

Answer 11

The undergrad system, which awarded 20 points on the basis of race in a point system to 150 violated the Equal Protection Clause. The law school, where race was considered as a factor to achieve “critical mass” but applications were otherwise an individualized flexible assessment did not violate it. Applies strict scrutiny but defers to the institution on the compelling interest. Diversity was the compelling state interest; “Critical mass”:A meaningful number of minority students, sufficient to promote cross-racial understanding, break down racial stereotypes, and enable students to better understand persons of different races. (Dangerously close to being quota, but majority finds it is not a quota). “Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative…Narrow tailoring does, however, require serious, good faith consideration of workable race neutral alternatives that will achieve the diversity the university seeks.” 709

Question 12

Fisher -

Answer 12

The Top Ten Percent plan impacted the school’s for 75% of its admissions. In the remaining 25%, race was considered a “factor of a factor of a factor” into the holistic review calculus, because it is part of special circumstances which is considered among the third of three factors. This is still a race-conscious standard, so strict scrutiny still applies. Fisher clarifies that the Court will only defer to the goal of diversity not to the means used to accomplish that end, so the court will not be deferential to how diversity is used by schools.
Modifies what Justice O’Connor said about race-neutral alternatives: “the reviewing court must ultimately be satisfied that no workable race neutral alternatives are available.” However, the Court determines this program is narrowly tailored, so no violation.

Question 13

Parents Involved -

Answer 13

Both school districts are trying to achieve racial balancing by determining what schools students are assigned to by relying on race. Seattle does this by factoring siblings, race, and geography. Louisville does this by requiring 15% to 50% composition of black students. Strict scrutiny applied. There was no evidence that Seattle had previously discriminated because it was never segregated by law, and Louisville had already remedied their former discrimination when they successfully desegregated by law. This suggests that the conduct has to be ongoing and not already remedied in order to use remedial justifications. Both schools had limited view of diversity that was not narrowly tailored, and other race-neutral means would be effective. So it was a violation of Equal protection.

Question 14

Sugarman

Answer 14

• New York had a flat ban on non-US citizens from holding government positions. Applies heightened scrutiny because of the representation theory: they can’t vote, there’s no recourse. The law violated equal protection because it was not narrowly confined. But did not hold that a State may not, in an appropriately defined class of positions, require citizenship as a qualification for office [the political function exception].
  Does not use the magic language of strict scrutiny, but uses “close scrutiny”, “narrowly confined nor precise in its application”
  Sugarman was brought as an equal protection claim, because the equal protection clause protects “persons” while privileges and immunities clause protects “citizens”

Question 15

Craig v. Boren -

Answer 15

Oklahoma law prohibits the sale of 3.2% beer to males under the age of 21 and females under the age of 18. To withstand constitutional challenge, classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. The means are the problem; the classification is overinclusive and the statistics cannot support the conclusion that the gender-based distinction closely serve to achieve the objective. Oklahoma used sex as a proxy for the regulation of drinking and driving. Violates the equal protection clause.

Question 16

Michael M. v. Superior Court of Sonoma County -

Answer 16

California law defined statutory rape in a way that criminalized the male but not the female when persons under 18 had sexual intercourse. The law is aimed to prevent teenage pregnancy. Appears to be heightened scrutiny [“sufficiently related”] but not true intermediate scrutiny. Women could get pregnant, which serves as a natural deterrent, but men do not have the same deterrence. Men and women are thus not similarly situated. Defers to the state because of this.

Question 17

Rostker v. Goldberg -

Answer 17

suggests applying intermediate scrutiny, but deferential to the government’s articulation of a purpose. The draft was primarily for the purpose of combat, and a statute prevented women from being eligible for combat (The parties did not challenge that law.) Because of this, men and women are not similarly situated for purposes of a draft. Going about the draft otherwise was not worth the added burdens.

Question 18

U.S. v. Virginia “VMI”

Answer 18

• VMI was a public military school that excluded women in its admissions. Using an intermediate scrutiny, the Court required an “exceedingly persuasive justification” for gender-based government action. Virginia tried to justify the school with objectives of diversity, and uniqueness - which added an argument to the traditional two bases. Diversity did not justify it because VMI was not established or maintained to provide diverse educational opportunities, and a tenable justification must describe actual state purposes, not after-the-fact rationalizations. Not all single-sex schools are necessarily unconstitutional. The Court did not have to get to what the alternative program would require because it was so clear that the current alternative was so poor. The ends and the means merged in this policy. The policy reflected a sex generalization that burdened women who were “cut out” for the program.
  Sex classifications may be used to compensate women for particular economic disabilities they have suffered, to promote equal employment opportunity, and to advance full development of the talen tand capacities of our Nation’s people, but such classifications may not be used to create or perpetuate the legal, social, and economic inferiority of women.

Question 19

San Antonio Independent School District v. Rodriguez -

Answer 19

the funding of the schools was done by property taxes, which resulted in huge disparities. 2 claims - education is a fundamental right and classifications by wealth are suspect. The Court’s response: hesitant to declare poverty a suspect class because that would jeopardize certain wealth programs and poverty is too amorphous to define.The wealth discrimination is difficult to identify because the classification is not the individual/family but the district lines. Rational basis review. Hesitant to create substantive constitutional rights to guarantee equal protection, and education is not an explicit or implicit protection under the Federal Constitution. Upholds the Texas plan.

Question 20

Plyler -

Answer 20

The Texas Legislature denied enrollment in public schools to children not “legally admitted” to the country. Texas was concerned with a wave of illegal immigration and resource constraints, believing the children may take their Texas education elsewhere. The Court rejects the claim that illegal aliens are a suspect class and rejects that public education is a guaranteed right, but still strikes down the legislation. Rational basis +. Not rational because it is aimed at a class of children who are not accountable for their disabling status; More of a penalty than a disincentive. Also, no support on the record that this is an effective method of accomplishing these goals, or even that these concerns are valid. The discrimination cannot be rational unless it furthers a legitimate goal of the state, and the State does not have power with respect to the classificaiton of aliens.

Question 21

Compare Harper and Kramer with Rodriguez.

Answer 21

Harper and Kramer both have some restriction on voting. Harper is a $1.50 poll tax. Kramer had a law limiting the franchise in school district elections to owners of real property. Strict scrutiny is applied. The court does not say that wealth is a suspect class, but wealth here acts as the gatekeeper to a fundamental right. Both laws were struck down because of this.This is different from Rodriguez because Rodriguez did not concern a fundamental right.

Question 22

Crawford -

Answer 22

photo ID law required photo ID in order to vote, and even if you don’t have it at the time of voting you have to present it within ten days in order to count the ballot. The state was interested in preventing voter fraud and safeguarding voter confidence. Uses a balancing test that does not seem to be rational basis or intermediate scrutiny, but with elements of both. Weighs the asserted injury with the State’s interests to see how significant the injury is. Facial challenge rather than applied challenge, so cannot use specific evidence of those burdened. Upholds the law.

Question 23

Reynolds v. Sims -

Answer 23

Here, there is not a denial of voting, there is different proportions given to the vote depending on where the person lives. Equal protection is implied. The right to vote carries with it the ability to participate in the political process. Voting is not just casting, it is the elective relationship with representation. Equal protection requires that district lines have to be drawn with equal population as closely as possible. Some additional factors are permissible, but history, economic, or group interests alone are not permissible, and it must be a good faith effort.

Question 24

Bush v. Gore -

Answer 24

not a denial of voting, different standards for reviewing unclear ballots. The ultimate say for the type of mechanism used for voting is the state. The equal protection problem is that the right to vote is fundamental, so the system of counting voting cannot have arbitrary methods because that would count certain votes over others. The evaluation must be uniform.

Question 25

Davis v. Bandemer -

Answer 25

Indiana Democrats claimed the legislative apportionment diluted the votes by deliberate gerrymandering. The Court in a plurality held: Politics will always be part of the redistricting process. An equal protection violation may be found only where the electoral system substantially disadvantages certain voters in their opportunity to influence the political process effectively. The right to vote does not include the right to “win”. People have the right to have their vote counted, people do not equal political party. Equal protection does not go that far, you have a right to vote, a right to a representative, and to be counted equally. This is opposite from previous equal protection framework, has to show actual discrimination, not just intended discrimination (even if intent is there). Davis does suggest that a sole intent may be enough to prove actual discrimination.

Question 26

Shaw v. Reno -

Answer 26

North Carolina reapportioned so that there would be one majority-black congressional district. This is remedial race-conscious districting, like affirmative action for voting. Deference normally given to states for redistricting (rational basis) not applied because race is so significant, strict scrutiny is applied. Will apply strict scrutiny when race is a factor. The reapportionment was so irrational that it could only be understood as race-based, and that separation of voting lacked sufficient justification.

Question 27

MLB v. SLJ -

Answer 27

MLB sought an appeal from parental termination, but the law required she pay all the fees in advance, which she was unable to do so her appeal was dismissed. The court considered the nature of the interest and the nature of deprivation: An absolute denial of parental rights is at stake. The state’s interest was financial, but it was unlikely to impose an undue burden on the state. Sounds like a balancing test. Cases that are criminal or quasi criminal in nature may not turn on ability to pay. The state was required to provide MLB a record to permit appellate consideration.

Question 28

Saenz v. Roe -

Answer 28

A California law limited new residents to the amount of welfare benefits they would have received in their prior state of residency for the first year. The ability to establish residency is under the 14th amendment privileges and immunities clause. That protects the ability of people to become residents of another state. Residency requirements before you receive benefits of the state are treated differently from bona fide residency requirements (proving residence). Legitimate interest must be within a reasonable amount of time to suffice that they are now residents, or it becomes a penalty on the right to travel. Appears to apply strict scrutiny, “neither mere rationality nor some intermediate standard of review should be used”

Question 29

What is the history of the Civil Rights Cases?

Answer 29

The CRA of 1875 also prohibited private racial discrimination. Can Congress write legislation to prohibit discrimination by private actors? Congress has the authority ongoing authority to pass all laws necessary and proper for abolishing all badges and incidents of slavery. However, racial discrimination by private parties is not a badge or incident of slavery, so the 13th amendment only applies to actions of the government.

This aspect of the Civil Rights Cases was reversed in Jones v. Alfred H. Mayer - page 1271.
Private discrimination based on race can in fact be effecting the badges and incidents of slavery.
There is no state action requirement for the 13th amendment, unlike the 14th and 15th, because the language is different with respect to that particular amendment.

Question 30

City of Boerne v. Flores -

Answer 30

Religious Freedom Restoration Act was the legislation meant to restore the prior strict scrutiny standard for substantial burdens on exercise of religion. The statute was held to exceed Congress’s power. Congress has remedial authority, but this legislation went beyond that to expand the rights. Congress does not have substantive authority. It was also not proportionate, because it applied to all levels and all actors of government.

Question 31

Compare Garrett and Kimel

Answer 31

Garrett - Americans with Disabilities Act.
Kimel - Age Discrimination in Employment Act
The type of right protected in both instances were not suspect classes, so Congress has a very narrow power under section 5 to pass protective legislation (because rational basis). The court struck down both Acts as applied to governmental actors. The Acts sweep so broadly, so covers so many other governmental actions taking age or disability into account. The evidence to support the Acts was also of private discrimination. The legislation was not remedial.

Question 32

Compare Hibbs with Garrett and Kimel.

Answer 32

Hibbs - FMLA was within Congress’s section 5 power. Hibbs differed from Garrett and Kimel because FMLA relates to gender discrimination, which triggers a heightened level of scrutiny. There was also evidence supporting that the government actors were participating in the perpetuation of gender stereotypes that FMLA was meant to rebut. FMLA was also directed at remediating a very specific type of gender based discrimination, so it was congruent and proportional.

Question 33

Shelby County v. Holder -

Answer 33

The VRA required certain States to obtain federal permission before enacting any law related to voting, and they renewed the act without renewing the evidentiary support for why those states are chosen. Proportionality problem. Maybe there is congruence. Congress had not revised its support for which jurisdictions were covered, so it was not proportional.

Question 34

Broadrick v. Oklahoma -

Answer 34

the overbreadth of the statute must not only be real but also be substantial, judged in relation to the statute’s plainly legitimate sweep. A law prohibiting the State’s civil servants from soliciting for political contributions or working on a political campaign was not substantially overbroad so it was not unconstitutional. The section was not a censorial statute directed at particular groups or viewpoints, but sought to regulate in an even-handed and neutral manner.

Question 35

Near v. Minnesota -

Answer 35

A Minnesota law was used to enjoin the publication of a newspaper that was publishing articles alleging a Jewish gangster was in control of gambling, bootlegging and racketeering in Minneapolis and police weren’t doing anything about it. This was censorship,, not a valid prior restraint.

Question 36

Schenck -

Answer 36

The Espionage Act prohibited the intent to interfere with the U.S. military, or intentionally cause or attempt to cause insubordination etc. question of proximity and degree; context matters. Schenck sent documents to men who had been called and accepted for military service alleged to cause insubordination and obstruction. In ordinary times the defendant’s would have been within their constitutional rights but in these circumstances it created a clear and present danger of substantive evils that Congress has a right to prevent.

Question 37

Abrams -

Answer 37

Abrams was convicted of violating the Espionage Act by distributing a leaflet urging a strike to frustrate the American expedition in Russia. The plan of action adopted necessarily involved defeat of the US war program. The intent of the speech made it a clear and present danger.

Question 38

Gitlow -

Answer 38

A New York law punished advocacy of overthrowing the government by force or violence. Gitlowhad two papers calling for revolutionary Socialism. The words imply urging to action, would lead to violence, so the conviction is upheld. The State’s determination must be given great weight. The clear and present danger test does not apply when the legislature has already determined the danger of substantive evil from this type of utterances, so the statute is constitutional.

Question 39

Brandenburg v. Ohio -

Answer 39

A statute designed to go after incitement, but going after a particular form of incitement as a means of political reform. A KKK leader was convicted under the statute for calling for a march on Congress during a KKK rally that was televised. The law did not distinguish mere advocacy from incitement to imminent lawless action, so the statute cannot be sustained.

Question 40

Virginia v. Black -

Answer 40

Virginia prohibited burning crosses, and the intent to intimidate makes it criminal, but the intent to intimidate could be shown prima facie by the action of burning a cross. The statute was only struck down to the extent that the prima facie evidence provision, because burning a cross does not inevitably convey a message of intimidation. Virginia was still allowed to prohibit burning crosses with a demonstration of intent.

Question 41

Terminiello v. Chicago -

Answer 41

A right-wing speaker gathered a crowd of about 1,500 in protest, and was found guilty of a disorderly conduct statute. The Court overturned the conviction. It is part of free speech to be provocative, and that speech should not be clamped down upon just because people will get excited in response. Only will prohibit when there is a clear and present danger of serious substantive evil that rises far above public inconvenience, annoyance, or unrest.

Question 42

Feiner v. New York -

Answer 42

Feiner was on a soapbox addressing a crowd of about 75 people. Officers requested him to stop after onlookers threatened to do something themselves. When he didn’t, police arrested him. The Court upheld the conviction. There was imminence of great disorder, the police did not step in immediately but saw that the crowd was getting upset and one person even threatened violence. Refusal of Feiner to assist the police in preventing disorder.

Question 43

Chaplinsky -

Answer 43

The law prohibited offensive, derisive, or annoying words and offensive or derisive names. Chaplinsky was a Jehovah’s witness distributing literature denouncing religion as a “racket.” Chaplinsky was warned the crowd was getting restless. When a disturbance occurred, and Chapinsky was taken to the station, he called the City Marshal a damned racketeer and damned fascist. The conviction was affirmed and the statute constitutional because the speech was not valuable, such epithets are likely to provoke the average person to retaliation, and the statute defined and punished specific conduct lying with the domain of state power.

Question 44

Cohen v. California -

Answer 44

Cohen was convicted of disturbing the peace by offensive conduct for wearing a jacket bearing the words “Fuck the Draft.” This did not fall within any categories of unprotected speech. It is not incitement, fighting words, or hostile audiences because it did not intend to provoke violence and it was not directed at anyone. It was not captive audience because he was in a public courthouse. The government was not being forced to subsidize the speech; there was no notice about what speech/conduct would not be tolerated in the courthouse. The language also carried emotive value.

Question 45

Matal v. Tam -

Answer 45

A band wanted a trademark for their band name “The Slants.” The law prohibited trademarks that may disparage or bring into contempt or disrepute any persons living or dead, so the trademark was denied. The law was held to violate free speech. It was not considered commercial speech because the clause was not narrowly drawn to meet the Central Hudson standard. The clause was too broad in other ways as well. The majority saw it as content-based regulation, the concurrence thought it was viewpoint regulation.

Question 46

RAV v. City of St. Paul -

Answer 46

A group of teenagers made a cross and burned it inside the fenced yard of a black family. RAV was charged under the Bias-Motivated Crime Ordinance. The ordinance was held unconstitutional because it prohibits speech on the basis of the subject, so it is content-based regulation. Displays of the most severe abusive nature are permissible unless addressed to a specified disfavored subject. In practical operation, this is viewpoint discrimination. Such selectivity leads to heightened scrutiny. There are compelling interests in the regulation, but the content discrimination is not reasonably necessary to achieve those interests. Scalia says fighting words can still be regulated, but that it is conduct regulation and not speech regulation, and it does not go after only disfavored ideas.

Question 47

Wisconsin v. Mitchell -

Answer 47

A law increased penalties for the crimes where the victim was intentionally selected because of race, religion, color, disability, sexual orientation, national origin or ancestry. A group of young black men beat a white boy severely and stole his tennis shoes. Mitchell’s offense was increased from two to seven years. The court upheld the law, saying that nothing in RAV compelled a different result. RAV was directed at expression, but this is directed at unprotected conduct.

Question 48

Roth v. United States -

Answer 48

Roth was convicted of mailing obscene advertising and an obscene book. Obscenity is not protected speech. Obscenity is something that is utterly without redeeming social value. Obscenity is measured by whether to the average person applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.

Question 49

Miller v. California -

Answer 49

Miller conducted a mass mailing campaign to advertise illustrated books with adult material, and was convicted of distributing obscene matter. Obscene material is not protected speech. Such material can be regulated by the states, subject to safeguards and confined to works which depict or describe sexual conduct specifically defined by applicable state law. Obscenity is determined by applying community standards, not national standards. The case was remanded to follow these premises.

Question 50

Paris Adult Theatre I -

Answer 50

Two adult movie theaters were enjoined from exhibiting two obscene films. The case was remanded in light of Miller. There are legitimate state interests in stemming commercialized obscenity, even if safeguards already exist. The Georgia legislature could reasonably determine that such materials caused anti-social behavior. Where communication of ideas is not involved the mere fact that some thoughts may be incidentally affected does not bar the State from acting to protect legitimate state interests.

Question 51

Renton v. Playtime Theatres, Inc. -

Answer 51

Renton adopted a zoning ordinance prohibiting adult movie theaters from 1,000 feet of any residence, church, park or school. The ordinance was valid. It did not ban adult theaters altogether, but only regulated location as a time, place, manner regulation. It was aimed at the secondary effects on the surrounding community, not the content. It also was narrowly tailored and allowed for reasonable alternatives of communication.

Question 52

New York v. Ferber -

Answer 52

A criminal statute prohibiting child pornography was upheld. Child pornography is non-protected expression. The speech has de minimus value. The Court assumes that the children cannot give consent, so the State can step in on behalf of the children. The Court defers to the State’s legitimate interests; “the cart before the horse” puts rational basis at the beginning of the analysis. The distribution of child porn is intrinsically related to the sexual abuse of children. The Miller standard does not reflect the State’s particular and more compelling interest in prosecuting those who promote the sexual exploitation of children. “No reason to apply the elements of the Miller obscenity standard, but it may be compared to it for the purpose of clarity.”

Question 53

Ashcroft v. Free Speech Coalition -

Answer 53

An act extending criminal prohibition against was held to be overbroad and violate the First Amendment. The language goes after something that is pure expression, because there are no actual children to protect. The causal link to sex abuse of children is contingent and indirect. There is also serious literary, artistic, political or scientific value in the speech. Protected speech may not be banned as a means to ban unprotected speech.

Question 54

Stevens -

Answer 54

A law criminalizing depictions of animal cruelty was facially invalid for being substantially overbroad. The action in the videos is illegal and the legislature has the ability to regulate the actions, but not for the depiction of that action. The government should not be deciding what speech has value or not. There is an overbreadth problem as legal activity, like hunting, would be prohibited. Reinterprets Chaplinsky → not that it is valueless at the outset, but it was in a category that was traditionally not protected therefore it is valueless.

Question 55

Brown -

Answer 55

A law imposing restrictions on violent video game sales to minors violated the First Amendment. This is not an obscenity regulation. Protected speech, content-based regulation, so strict scrutiny. California does not meet that standard, the state does not possess the power to restrict the ideas to which children may be exposed, and the evidence provided is not compelling, there is no direct causal link between the games and harm to minors. The regulation is both underinclusive and overinclusive; underinclusive because cartoons like Road Runner have the same effect and the games can be used by minors if an adult buys it for them, and overinclusive because it tries to aid parental authority where some parents won’t care if their kids play violent video games.

Question 56

FCC v. Pacifica -

Answer 56

FCC issued a reprimand to a station that hosted a satirist who did a bit about cuss words in the middle of the day, and the Court upheld the FCC reprimand. This is content-based regulation. A majority does not accept the valueless argument. A majority accepts that broadcasting has limited First Amendment protection primarily because of the invasive nature of the media. Context is important, the time of day was emphasized in the reprimand.

Question 57

Reno -

Answer 57

Statutory provisions prohibiting transmission of obscene or indecent messages to minors and prohibiting sending or displaying offensive messages available to minors were held to violate the First Amendment. This was content-based regulation. This is different from Pacifica because in Pacifica it was a sudden change in broadcasting so the reprimand designated “when rather than whether” to air. The reprimand was not punitive.The internet is not as invasive, there is more control over it. Overbroad regulation and undefined terms. The government has not explained why a less restrictive provision would be as effective.

Question 58

NYTimes v. Sullivan -

Answer 58

The police commissioner sued NYTimes for an ad implying police initimidation and violence dealing with civil rights demonstrators. The ad contained some factual errors, though inconsequential for Sullivan’s reputation. The Supreme Court held that the 1st Amendment protects false statements against public officials unless the plaintiff can prove the statement was made with actual malice (= knowledge that it is false or made with reckless disregard for falsity.) There is a presumption that robust and open debate may include sharp attacks on government policies and officials. The rationale was that criticism of public officials is important in self-governance and it prevents chilling of public debate (there is an underlying concern for the necessary role of media in public debate and accountability). The Court did not hold libel was a protected category, just that some libel is subject to higher scrutiny; only some non-malicious libel must be shielded–a balancing test. The Constitution does not turn on the truth of the statements. Public officials have a special or unique access to public platforms to respond to attacks.

Question 59

Gertz v. Robert Welch -

Answer 59

A well-known lawyer in a high-profile local case was criticized in the John Birch Society magazine published by Welch. The court held that “well-known” was not sufficient to be a public figure–must achieve some fame or notoriety or have pervasive involvement in societal affairs, and must voluntarily interject self into controversy and invite attention. The standard was lesser than that with Sullivan: States may not impose liability without fault, States may not permit recovery of presumed damages (limit liability to actual damages), and punitive damages only where actual malice is proven. The rational for the distinction between public figures and private individuals is that public figures have voluntarily thrust themselves into limelight, and private individuals are more vulnerable to the effects of defamation have less access to media to defend themselves or rebut.

Question 60

United States v. Alvarez -

Answer 60

Alvarez was convicted under the Stolen Valor Act for lying about holding the Congressional Medal of Honor. The Act violated the First Amendment. Content based regulation = prohibits false statements only regarding one idea about military service; the government seeks to suppress false statements on this one subject that it disagrees with the message. The Act lacked tailoring, as there was no link between asserted interest and an injury. Other means could counter the falsity with truth. The Court refuses to require truth as a prerequisite for allowing speech, and was unwilling to create a new category of unprotected speech.

Question 61

Hustler Magazine v. Falwell -

Answer 61

Hustler Magazine made a parody of an advertisement that depicted Falwell, a nationally known minister, having sex with his mother in an outhouse. The ad was marked parody. Falwell sued for intentional infliction of emotional distress. The Court distinguished malice for tort liability in other areas from when it is directed at public debate about public figures. “Outrageous” as a standard was too subjective and chilling of speech. The Court applies the Sullivan standard requiring a showing actual malice for public figures and officials to recover for the tort of intentional infliction of emotional distress.

Question 62

Snyder v. Phelps -

Answer 62

The Westboro Baptist Church picketed near the funeral service of Snyder, a U.S. Marine. Snyder’s father saw the protest on television afterward, and sued. Whether the First Amendment prohibiting holding Westboro liable turned largely on whether the speech was of public or private concern, by examining the content, form and context. The speech here was public concern, because of the nature of issue, the content of the signs, and the manner of the demonstration→ directed outward for attention.The Supreme Court held that since the speech was not directed at Snyder, traditional IIED was not applicable. The Court did not apply captive audience because Snyder did not personally hear the words or see the signs, and the protestors were outdoors. States still could enact time, place, manner restrictions on funeral protests if they were content neutral.

Question 63

Virginia Board of Pharmacy v. Virginia Citizens Consumer Council -

Answer 63

A law regulated advertisement of prescription drug prices. The Court thought consumers and society have a strong interest in the free flow of commercial information. There is a public interest to be informed, and advertising is indispensable for the formation of intelligent ideas. The Supreme Court viewed public interest broadly (in the aggregate); free flow of commercial information contributes to free economic system by enabling consumers to make necessary private decisions. There is a presumption that suppression of info is counter to the First Amendment; more information is better. The Court’s analysis focused on the listener; commercial speech is protected for the benefit of the listener.

Question 64

Central Hudson v. Public Service Commission -

Answer 64

The Commission prohibited utilities from promotional advertising that promotes the use of electricity. The level of review was intermediate–requiring a substantial interest. The state had a substantial interest in conserving energy. There ad ban directly advanced the interest because there is a direct connection between advertising and demand for electricity. The regulation failed the 4th step of the test, because it prohibited even the ads designed to reduce use, and there were other means to promote conservation besides speech restriction.

Question 65

Compare SUNY v. Fox with Thompson.

Answer 65

SUNY v. Fox requires only that the fit chosen be reasonable but not perfect; in proportion to the interest served (narrowly tailored, but not least restrictive means). But, Thompson said the regulation would be too extensive if there were non-speech options available.

Question 66

Compare Posadas with 44 Liquormart and Lorillard Tobacco.

Answer 66

Posadas - The Court upheld a law prohibiting legal gambling casinos from advertising. The government interest in limiting promotion of gambling was substantial, and since they could have banned gambling entirely they could ban ads. Lesser means were not required.
44 Liquormart v. Rhode Island - A regulation prohibited ads of liquor prices except inside the store. The plurality of Stevens, Kennedy, and Ginsburg would have required strict scrutiny for regulation of truthful ads, like pricing. The state had a valid substantial interest in temperance. The regulation failed step 3, because there was no showing that the regulation will directly advance the state’s interest, there needed to be evidence the ban would significantly reduce market consumption. Intermediate scrutiny, though court used more “bite” in the scrutiny than Central Hudson = must advance the interest “to a material degree.” The regulation also failed step 4, because alternative non-speech means would accomplish the interest so it was not “no more extensive than necessary.”
Lorillard Tobacco - State restrictive tobacco advertising on billboards within 1000 feet of schools, and in-store sales racks lower than 5 feet. The state’s substantial interest was conceded. It met the third step for the billboards, but the height restriction did not advance to a material degree. The regulation failed the 4th step, as the law would result in complete bans in some locations and thus keep truthful information from adults.

Question 67

Ward v. Rock Against Racism -

Answer 67

regulation required using the sound amplification and sound technician provided by the city in the Central Park bandshell. Applied content-neutral standard → is it justified without reference to content of speech, significant governmental interest, narrowly tailored, ample alternative channels. (typically considered to be intermediate scrutiny). An interest in limiting sound volume and protecting citizens from unwelcome noise was considered a significant governmental interest. It was narrowly tailored because it directly got at the actual problem, and it was not substantially broader than necessary. It need not be the least restrictive or least intrusive means of doing so. “So long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.”

Question 68

McCullen v. Coakley -

Answer 68

A statute made it a crime to stand on the sidewalk within 35 feet of any place, other than a hospital, where abortions are performed. The statute had exceptions for people using those facilities, employees, first-responders and municipal agents acting within scope of employment, and people using the sidewalk to walk by. The statute was held content-neutral because it did not draw content-based distinctions on its face, it was a place restriction, and, the justification does not reference a particular subject matter, the justification is preventing overcrowding, to allow access to healthcare, protecting public safety, etc. A facially neutral law does not become content based simply because it may disproportionately affect speech on certain topics. However, it burdens more speech than necessary, so it fails narrow tailoring. Reversed and remanded.

Question 69

Packingham v. North Carolina -

Answer 69

A law made it criminal for sex offenders to access websites like Facebook and Twitter. The statute itself was content-neutral, it restricted the medium type. The government interest in protecting children and minors from contact with pedophiles is substantial. The statute was not narrowly tailored, however. The wording of the statute can bar websites that don’t relate to contacting minors, like Amazon or WebMD. To foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. The sweeping law is not necessary or legitimate to serve the substantial interest. But a state is not barred from enacting a more specific law than this one.

Question 70

United States v. O’Brien -

Answer 70

O’Brien was criminally penalized for burning his registration card in violation of a statute prohibiting “knowingly destroys, knowingly mutilates, or in any manner changes any such certificate.” The statute on its face does not regulate speech, but regulates conduct. This was expressive activity because it was part of a demonstration –there is intent, and there is context to reasonably perceive it as expressive. Intermediate scrutiny → government regulation within the constitutional power of the government, furthers an important or substantial governmental interest, the governmental interest is unrelated to the suppression of ree expression, and the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Question 71

Texas v. Johnson -

Answer 71

Johnson was convicted of a Texas statute prohibiting the desecration of the flag for burning the American flag. Johnson was part of the protest, so there was intent and it would be reasonably perceived to be expressive, so this is symbolic expression. This is content-based. Preserving the symbol of nationhood is inherently suppression of expression. Could be burned for other reasons. It fails strict scrutiny. There is not a compelling government interest in fostering a certain view of the flag. “It is not the State’s ends, but its means, to which we object.”

Question 72

ISKCON v. Lee -

Answer 72

The airport authority banned solicitation of money and distribution of leaflets. The government was a proprietor of the airport. The solicitation for money prohibition is constitutional, the distribution of leaflets prohibition is not. The airport is a non-public forum; the primary purpose is not to engage in expression, it’s never been a public forum. Since not a public forum, the restrictions need only be reasonable, and the solicitation ban meets this, because it is reasonable to want to have crowd control in an airport and keep travelers from being stopped or pressured into giving money. Leafletting does not have these same kinds of problems, so it is not reasonable to ban.

Question 73

Tinker v. Des Moines School District -

Answer 73

The school prohibited armbands after learning of the student’s plan to wear black armbands to protest the Vietnam war. Presumption that students can engage in expression in the absence of material and substantial interference in the discipline and operation of the school. Where there is no evidence that engaging in the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school the prohibition cannot be sustained. The rule violated the first amendment. (Tinker is the highwater mark. It still affects speech that takes place in more private contexts and is not disruptive.)

Question 74

Bethel School District v. Fraser -

Answer 74

A student gave a speech at a school assembly full of sexual innuendos. The court does not apply Tinker. An exception: if it is vulgar language, the school has a reason to regulate it, so it does not have to meet the Tinker standard. It is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.

Question 75

Hazelwood School District v. Kuhlmeier -

Answer 75

Students who worked for the school newspaper had their stories deleted because one discussed pregnancy and the other the student said harsh things about their parent in the context of dealing with divorce. School officials reserved this forum for an intended purpose, so it could be regulated in any reasonable manner. The court does not apply Tinker, because the school sponsored the newspaper, so the speech is school speech, it is part of the curriculum–it does not have to promote particular student speech. This takes a different approach from both Tinker and Bethel. The school can control the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate concerns. The school acted reasonably here, so there was no violation.

Question 76

Morse v. Fredrick (notes) -

Answer 76

A student was suspended after unfurling a banner that read “Bong Hits 4 Jesus” during the school observance of the passing of the Olympic torch. The court did not apply Tinker. Speech advocating drug use is not analyzed by Tinker. The government interest in stopping student drug abuse allows schools to restrict student expression reasonably regarded as promoting illegal drug use.

Question 77

Rust v. Sullivan -

Answer 77

HHS regulations limited the ability of Title X fund recipients to engage in abortion related activities, including counseling, referring, advocating or promoting abortion. Title X projects were permitted to provide info about childbirth and prenatal care. This law was upheld, because the government can selectively fund a program to encourage certain activities. The government was essentially purchasing a service. The government can encourage certain activities without at the same time funding an alternative program, “not discriminated on the basis of viewpoint; it has merely chosen to find one activity to the exclusion of the other.”

Question 78

Legal Services Corp v. Velasquez -

Answer 78

Legal Services Corporation grants barred LSC funded representation if it challenges existing welfare laws. This was held to violate the First Amendment. The LSC program was designed to facilitate private speech, not to promote a governmental message. Further, the purpose of the legal profession is to advocate for the client, a more inherent expressive quality. The restriction distorts the legal profession, and limits the court from hearing cases within their province to consider in an effort to insulate the law from judicial challenge.

Question 79

Rosenberger -

Answer 79

student fees were used to pay the printing costs of student publications, but refused to pay the costs for a Christian student edited paper, because it refused to fund any student religious activity. The court held this violated free expression. In Rust the government is buying a particular service, which is fine, even though it’s a particular message. In Rosenberger, the University is not buying any particular message, it is creating a public forum by paying for the opportunity for private speech.

Question 80

Finley -

Answer 80

funding directed the agency to ensure “artistic excellence and merit are the criteria by which grant applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public.” Finley had received an NEA grant in the past, but was denied because of the new regulations. The court upheld the restriction. In Rosenberger it was viewpoint based, this one is content-based. This is a competitive process, so not everyone who applied would receive the grants to begin with; the government had an inherent editorial power.

Question 81

American Library Association -

Answer 81

Made funds available to public libraries to provide internet access, but conditioned it on the installment of software filters blocking obscenity and child pornography. The plurality concluded the library had editorial power already in choosing content-based what books to get, so it was not an unconstitutional condition.

Question 82

Pickering -

Answer 82

a teacher wrote a letter to the newspaper criticizing the way the school spent money raised from prior bond issues, and was fired. The court ruled this should be protected expression:public employees retain their free speech as a private citizen to comment on matters of public concern, even though the matter may concern directly to their employment. This is not an absolute right. Balancing test: the interests of the employee, as a citizen, to comment upon matters of public concern and the interest of the state, as an employer, in efficiency of the public services it performs and integrity of the workplace.

Question 83

Connick v. Myers -

Answer 83

Myers circulated a questionnaire with questions regarding office morale after being told she would get transferred. Then she was fired for her refusal to accept the transfer and for distribution of the questionnaire. This is private speech not public interest, all but one question concerned internal office practices. On the one question, Connick was still justified in firing Myers according to the Pickering balancing because there is a need for close working relationships, and the context shows this is just an employment dispute so additional weight is given to the view that the employee threatened the authority of the employer in running the office.

Question 84

Garcetti v. Ceballos -

Answer 84

This was something that would otherwise be part of his job duties. The content was a matter of public concern, but the court seems to elevate the fact that he is acting in his formal capacity over the question of how important it is to the public. When performing official duties, not speaking as a private citizen, speaking as a public employee, even speaking on a matter of the public concern. Implies can never be speaking on a matter of public concern in performing official governmental duties.

Question 85

Roberts v. United States Jaycees -

Answer 85

Minnesota law required the Jaycees to admit women, when the Jaycees had previously been men only. Freedom of association breaks down into: intimate relationships, and right to engage in First Amendment activities (expressive association). Applies strict scrutiny. The state has a compelling interest to stop discrimination. It is narrowly tailored because it is a public accomodation so making an exception would undermine the purpose of the law. The effect is no greater than is necessary to accomplish the state’s legitimate purposes (least restrictive means).

Question 86

Boyscouts of America v. Dale -

Answer 86

It was a violation of the Boy Scout’s right to expressive association to force them to allow homosexual scoutmasters. The purpose doesn’t have to be expressive activities, just an expressive component. Does not necessarily have to have articulable statements about what the group is objecting to prior to the case coming forward. The majority basically adopts O’Connor’s concurrence from Jaycees (an association engaged in protected expression enjoys protection of both the content of its message and the choice of its members).

Question 87

Christian Legal Society v. Martinez -

Answer 87

The law school extends recognition of student groups who in exchange must follow the non-discrimination policy, allowing them the benefits of school funds, facilities, channels of communication, name, and logo. CLS claimed this was a mandated membership in violation of the right to associate. The Court held this is a limited public forum, so the government can limit the speech if it is neutral. This policy is neutral, so it’s judged by intermediate scrutiny. Christian Legal had an ability to opt out of the policy “dangling the carrot of subsidy, not wielding the stick of prohibition.” So the restriction is constitutional.

Question 88

Rumsfeld

Answer 88

Law schools wanted to restrict military recruiters from campus because of the military’s treatment of homosexuals. The Solomon Amendment specified that if any part of an institution of higher education denied military recruiters access equal to that of other recruiters, then the entire institution would lose certain federal funds.
The court finds this is not a forced association because they come to campus for a limited purpose, and they are not part of the same organization. The university is not having to associate with them.
The court finds it is not compelled speech because allowing the recruiters on campus is not inherently expressive. Accommodation is not the same thing as expression. The school also isn’t even speaking.

Question 89

West Virginia State Board of Education v. Barnette -

Answer 89

WVSBE required all teachers and pupils to salute the flag during the pledge of allegiance, expelling the child who refuses and making the parents liable to criminal prosecution for causing delinquency. This was compelling affirmation with something you disagree. That is a violation of the First Amendment.

Question 90

Wooley v. Maynard -

Answer 90

New Hampshire law required license plates with the state motto and made it a misdemeanor to obscure the motto. The state may not require an individual to participate in the dissemination of a message; the First Amendment protects the individual’s right to have a different point of view from the majority and to refuse to foster an idea they find morally objectionable. The State’s interest in ID’ing passenger vehicles and promotion state history and state pride are not sufficient countervailing interest over that protection. The second interest is not neutral. New Hampshire cannot require the display of the state motto on license plates.

Question 91

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston-

Answer 91

The St. Patrick’s Day parade in Boston denied a GLIB group to march in the parade. The group brought suit under a discrimination public accomodation law and the state courts ordered the council to include the GLIB. Parades are a form of expression, the selection of contingents in the parade is afforded protection. The order requiring the inclusion of GLIB alters the expressive content of the parade, because each unit affects the message conveyed by the private organizers. A speaker has the autonomy to choose the content of his own message, so the state violated the First Amendment.

Question 92

National Institute of Family and Life Advocates v. Becerra -

Answer 92

A California act required clinics that primarily serve pregnant women to provide notices; licensed clinics must notify women with a government drafted script that California provides free or low cost services including abortions, unlicensced clinics must notify that California has not licensed the clinic to provide medical services. The notice in no way relates to the services the licensed clinics provide, so the court does not apply a lower level of scrutiny that they would to laws compelling disclosures. The licensed notice also regulates speech as speech, not professional conduct. Applies strict scrutiny (but says this law would fail even intermediate scrutiny). Providing low income women with info about state-sponsored services, assuming it is substantial, the notice is not narrowly drawn to achieve it, and the notice is underinclusive. The underinclusiveness raises doubts about whether the government is pursuing the interest or just disfavoring a particular viewpoint. The exemptions in the act raise the same suspicions. A disclosure requirement cannot be unjustified or unduly burdensome, it must not extent broader than reasonably necessary, and the government has to carry that burden. California failed to do so, the law is struck down.