Constitutional Law II Flashcards
Right to travel
i. Right to interstate travel
1. Source: implicit to constitution
2. Test: strict scrutiny
a. Case
i. Saenz v. Roe
1. Limits on welfare benefits
Right to enter state (dormant commerce clause)
ii. Right to enter state
1. Source: dormant commerce clause
2. Test: legitimate local purpose
a. Case
i. Edwards v. California
1. Indigent persons
Right to visit another state temporarily (privileges and immunities)
- Source: Art. IV P&I
- Test: substantial justification
a. Case
i. Saenz v. Roe - Limits on welfare benefits
Right to move to a new state
- Source: 14A P&I; 14A EP
- Test: strict scrutiny
a. Case
i. Saenz v. Roe - Limits on welfare benefits
ii. Shapiro v. Thompson - One-year residency requirement
International travel
- No fundamental right
- Test: rational basis
Right to vote
- Source: 15A, 19A, 24A, 26A
- Test: generally strict but sliding scale for restrictions
a. Case
i. Harper v. Virginia Board of Elections - Poll taxes
Literacy tests
- Source: 14A EP
- Test: allowed by Court; outlawed by statute
a. Cases
i. Guinn v. United States - Goodbye grandfather clauses
ii. Lassiter v. Northampton County Board of Elections - Literacy tests
Prisoners (right to vote)
- Source: 14A EP
- Test: allowed to deny prisoners right to vote for felony; not allowed to deny prisoners right to vote for crime of moral turpitude
a. Cases
i. Richardson v. Ramirez - Disenfranchised felons and ex-felons
ii. Hunter v. Underwood - Crimes of moral turpitude
Voter ID (right to vote)
- Source: 14A EP
- Test: more voter suppression technique burdens voters, more scrutiny court applies (sliding scale)
- Note: Use this test for new types of voter suppression
a. Case
i. Crawford v. Marion County Elections Board - Voter ID requirements
Poll tax
- Source: 14A EP
- Test: strict scrutiny
a. Case
i. Harper v. Virginia State Board of Elections - Poll taxes
Property ownership requirements
- Source: 14A EP
- Test: strict scrutiny
a. Case
i. Kramer v. Union Free School District - Either overinclusive or underinclusive
b. Exception
I. Water districts
Water districts (right to vote)
- Source: 14A EP
- Test: allowed to restrict by property ownership
a. Cases
i. Salyer Land Co. v. Tulare Lake Basin Water Storage Dist. - Living in a water district
ii. Ball v. James - “One acre, one vote”
Partisan gerrymandering
- Source: 14A EP
- Test: non-justiciable
a. Case
i. Reynolds v. Sims - Reapportionment gone wrong
Access to the courts (criminal procedure)
- Source: 14A EP
- Test: generally strict scrutiny
a. Cases
i. Gideon v. Wainwright - Right to attorney
ii. Griffin v. Illinois - Right to appeal (when made available)
iii. Douglas v. California - Attorney on appeal
iv. Ross v. Moffitt - No right to attorney on appeal to highest state court or USSC
Fee waiver (divorce or termination of parental rights)
- Source: 14A DP; EP
- Test: generally strict scrutiny
a. Cases
i. Boddie v. Connecticut - Divorce proceedings
ii. M.L.B. v. S.L.J. - Termination of parental rights
- Note: Court does not formally apply “strict scrutiny” until this case
Fee waiver (bankruptcy or welfare)
- Source: 14A EP
- Test: rational basis
a. Cases
i. United States v. Kras - Bankruptcy proceedings
ii. Ortwein v. Schwab - Welfare decisions
Prisoners (access to courts)
- Source: 14A EP
- Test: strict scrutiny
a. Case
i. Bounds v. Smith - Right to access courts
Prisoners (law libraries)
- Source: 14A EP
- Test: rational basis
a. Case
i. Lewis v. Casey - No right to law libraries
Right to education
i. Source: 14A EP
ii. Test: rational basis
1. Case
a. San Antonio Independent School District v. Rodriguez
i. Inequality in Texas school system
Procedural due process
i. (1) Deprivation
1. Usually by intentional action;
2. Non-emergency decision shows deliberate indifference; or
3. Emergency action that is reckless or shocks the conscience
a. Cases
i. Daniels v. Williams
1. Prison fall
ii. County of Sacramento v. Lewis
1. High-speed police chase
iii. Deshaney v. Winnebago County
1. Child abuse
iv. Town of Castle Rock v. Gonzales
1.
ii. (2) Life, liberty, property
1. Life
a. Death penalty or police chase
2. Liberty and property
a. Court will consider (1) whether legitimate claim or reasonable expectation of entitlement based on some independent source of law and/or (2) importance of interest
i. Cases
1. Goldberg v. Kelly
a. New York State financial aid
2. Board of Regents of State Colleges v. Roth
a. Wisconsin’s tenure track
3. Goss v. Lopez
a. Suspended from high school in Ohio
4. Paul v. Davis
a. “Active shoplifters” flyer
iii. (3) What process is due?
1. Whether process is due
a. (1) Private interest
b. (2) Risk of error using current procedures compared to probable value of more procedure
c. (3) Government interest
i. Case
1. Mathews v. Eldridge
a. Disability benefits
2. Amount of process due
a. (1) Notice
b. (2) Right to be heard
c. (3) In meaningful time and manner
i. Cases
1. Goldberg v. Kelly
a. New York State financial aid
2. Mathews v. Eldridge
a. Disability benefits
Substantive due process
i. (1) Identify fundamental right
1. Glucksberg and Dobbs
a. Deeply rooted in nation’s history and tradition AND
b. Implicit in concept of ordered liberty such that neither liberty nor justice would exist if it were denied AND
c. Carefully described
2. Lawrence and Obergefell
a. Deeply rooted in nation’s history and tradition OR
b. Implicit in concept of ordered liberty such that neither liberty nor justice would exist if it were denied AND
c. Broadly described
ii. (2) Has the right been infringed?
1. Fact-dependent
2. “Direct, substantial” infringement
a. Cases
i. Marriage penalty
1. Califano v. Jobst
2. Bowen v. Owens
iii. (3) Determine level of scrutiny
1. Requires:
a. Sufficient ends
b. Sufficient fit of means to ends
Economic interest (substantive due process)
- Fundamental right during Lochner era
a. Source: 5A, 14A SDP
b. Test: heightened scrutiny
i. Case - Lochner v. New York
a. Limiting the hours of bakers - Not a fundamental right New Deal era-present
a. Source: 5A, 14A SDP
b. Test: deferential rational basis
i. Cases - West Coast Hotel v. Parrish
a. Minimum wage for women - United States v. Caroline Products Co.
a. “Filled milk” - Williamson v. Lee Optical of Oklahoma, Inc.
a. Completive optometry
Economic interest (Contracts Clause)
- Not a fundamental right
a. Test: rational basis for federal interference; strict scrutiny for state interference
b. Source: Contracts clause
i. Cases - Allgeyer v. Louisiana
a. Out-of-state insurance contracts
Economic interest (Takings Clause)
- (1) Was there a taking of property?
a. Physical
i. Real and personal property - Cases
a. Loretto v. Teleprompter Manhattan CATV Corp.
i. New York cable boxes
b. Horne v. Department of Agriculture
i. Raisin growers
ii. Physical confiscation and appropriation - Case
a. Cedar Point
i. Farm worker organizing
b. Regulatory
i. Total - Not “too far”
- Unless restricted by “background principles” of existing law
a. Case
i. Lucas v. South Carolina Coastal Council
ii. Partial - Economic impact
- Investment-backed expectations
- Character of government action
a. Case
i. Penn Central Transportation Co. v. New York City
iii. Post-enactment - Post-enactment owner is restricted by pre-existing reasonable regulations, not unreasonable regulations
a. Case
i. Palazzolo v. Rhode Island
iv. Nexus test - Requires nexus between harm and condition government is trying to impose
a. Case
i. Nollan v. California Coastal Commission - (2) If so, was it for public use?
a. Rational basis that taking is for a “public purpose”
i. Case - Kelo v. City of New London
a. Connecticut land development - (3) What compensation is just?
a. Market value at time of taking (even if temporary taking)
b. Invalidation of ordinance is not enough
i. Case - Brown v. Legal Foundation of Washington
a. “Robin hood” case
Privacy interest (marriage)
- Fundamental right
a. Source: 5A, 14A SDP
b. Test: strict scrutiny
i. Cases - Fundamental right
a. Loving v. Virginia
i. Interracial marriage
b. Zablocki v. Redhail
i. Fathers who owe child support
c. Turner v. Safley
i. Inmates - No fundamental right
a. Obergefell v. Hodges
i. Same sex marriage
ii. Note: Fundamental right to marriage defined generally, not “same sex” marriage
iii. Court refused to give same sex couples a suspect class
Privacy interest (parents and family)
- Fundamental right
a. Source: 5A, 14A SDP
b. Test: strict scrutiny
i. Cases - Substantive due process
a. Stanley v. Illinois
i. Unwed fathers with no other father in the picture
b. Moore v. City of East Cleveland, Ohio
i. Extended family
c. Meyer v. Nebraska
i. Child’s education
d. Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary
i. State control over child’s education - Procedural due process
a. Troxel v. Granville
i. Visitation rights
Privacy interest (procreation)
- Fundamental right
a. Source: 5A, 14A SDP
b. Test: strict scrutiny
i. Cases - Skinner v. Oklahoma Ex Rel. Williamson
a. Forced sterilization
Privacy interest (contraception)
- Fundamental right
a. Source: 5A, 14A SDP
b. Test: strict scrutiny
i. Cases - Griswold v. Connecticut
a. Married people - Eisenstadt v. Baird
a. Unmarried people - Carrey v. Population Services International
a. Minors
Privacy interest (abortion)
- Not a fundamental right
a. Source: 5A, 14A SDP
b. Test: rational basis
i. Cases - Roe v. Wade
a. Fundamental right
b. Strict scrutiny - Planned Parenthood v. Casey
a. Fundamental right
b. Undue burden - Dobbs v. Jackson Women’s Health
a. Fundamental right
b. Rational basis
Privacy interest (medical treatment)
- Refuse live saving treatment
a. Fundamental right
i. Source: 5A, 14A SDP
ii. Test: strict scrutiny - Case
a. Cruzan v. Director, Missouri Department of Health
i. Terminating life support after car accident - Physical assisted suicide
a. Not a fundamental right
i. Source: 5A, 14A SDP
ii. Test: rational basis - Case
a. Washington v. Glucksberg
i. Terminal patients with persistent suffocation sensation
Privacy interest (sexual orientation and activity)
- No fundamental right
a. Source: 5A, 14A SDP
b. Test: rational basis
i. Case - Lawrence v. Texas
a. Same sex sodomy
Privacy interest (information)
- No fundamental right
a. Source: 5A, 14A SDP
b. Test: rational basis
i. Case - Whalen v. Roe
a. Prescription drug information
Freedom of speech
Congress shall make no law abridging the freedom of speech
Cardinal rule
Government may not regulate the content or viewpoint of speech unless an exception applies
Speech and conduct
a. If speech is integral to criminal conduct, then analyze as conduct
b. Mixed speech and conduct becomes communicative conduct if
i. Intent
ii. Likelihood to be understood
c. Expressive association
i. Intent
ii. Likelihood to be understood
iii. “inherently expressive”
Content-based restriction
Restriction on subject of speech
Viewpoint restriction
Restriction on perspective or viewpoint on that subject
Content discrimination
a. Strict scrutiny
i. Unless
1. Secondary effects
a. Safety
b. Traffic
c. Aesthetics
Secondary effects
a. Safety
b. Traffic
c. Aesthetics
Sexual exceptions to rule against content discrimination
- Sexual content
a. Nude dancing
b. Indecent art
c. Adult films
d. Library materials
Viewpoint discrimination
Strict scrutiny (presumptively invalid)
Test for government speech
No scrutiny
What is government speech
a. Holistic inquiry based on context considering
i. History of expression at issue
ii. Public’s likely perception as to who is speaking
iii. Extent to which government actively shaped or controlled speech
3. Cases
a. Government speech
i. Permanent monument
1. Pleasant Grove City, Utah v. Summum
ii. Confederate flag on specialty license plates
1. Walker v. Texas Division, Sons of Confederate Veterans
b. Not government speech
i. Trademark
1. Matal v. Tam
ii. Flag
1. Shurtleff v. City of Boston
Vagueness
a. Restriction cannot be unduly vague
i. Vague
1. Law is vague if a reasonable person cannot tell what is prohibited and what is permitted
2. Cases
a. Coates v. City of Cincinnati
i. Prohibiting persons from assembling on sidewalks in “annoying” manner is too vague
b. Baggett v. Bullitt
i. Prohibiting state employment of “subversive” persons is too vague
Overbreadth
a. Restriction must not be substantially overbroad
i. “Substantial overbreadth”
1. Significant number of situations where law could applied to prohibit constitutionally protected speech, judged in relation to law’s plainly legitimate sweep
2. If law could be unconstitutionally applied to some, even if law could be constitutionally applied to the plaintiff challenging the law
a. Exception to third party standing
Overbreadth and commercial speech
Overbreadth doctrine does not apply to commercial speech
Examples of prior restraints
a. Licensing or permit requirements
b. Court injunction
c. Government seizures
Standard for prior restraints
Strict scrutiny (presumptively invalid)
Licensing requirements (exception to prior restraints)
Licensing requirements may be allowed if:
a. Important reasons
b. Clear standards
i. Narrow
ii. Objective
iii. Definite standards leaving almost no discretion
c. Procedural safeguards
i. Full and fair hearing before speech is restricted
ii. Prompt decision by government
iii. Prompt judicial review (based on availability)
d. Note
i. Applies to government orders that operate like licensing systems
Collateral bar rule
a. Person violating an unconstitutional law may not be punished
b. However, person violating an unconstitutional prior restraint may be punished
c. If prior restraint is disobeyed, person loses constitutional challenge
Compelled speech
Government may not directly compel speech
Unconstitutional conditions (free speech)
a. Government may not use funding conditions to coerce people to speak or not speak a particular message
b. However, government may choose which messages to subsidize
Time, place, and manner restrictions (intermediate scrutiny)
a. Reasonable time, place, and manner restrictions allowed if
i. Content neutral
ii. Narrowly tailored to important or significant government interest and
iii. Leave open adequate alternative channel of communication
1. Does not have to be least restrictive alternative
Exceptions to the rule against content discrimination
a. Certain types of speech have so little value that they are unprotected or less protected
i. Incitements
ii. Fighting words
iii. True threats
iv. Obscenity
viii. Actual child porn
ix. Commercial speech
x. Defamation
xi. IIED
Incitement
a. Incitement of violence occurs if:
i. Individual acts with intent to cause imminent harm
ii. That is likely to occur
Fighting words
i. Fighting words are words that by their very utterance provoke violence
1. Provoking violence extends to:
a. Incitements
b. Disrupting the peace
Limitations on fighting words category
i. Court tends to invalidate broad restrictions of fighting words
1. Where they are not directed at particular person (e.g., burning flag and opposing draft)
2. Where they are vague and overbroad (e.g., opprobrious or abusive words)
3. Where they are based on content or viewpoint
4. Where no danger of unrest exists, so long as police provide sufficient protection for speaker facing hostile audience
True threats
a. True threat occurs when:
i. Speaker means to communicate serious expressive act of unlawful violence to individual or group of individuals
ii. Speaker need not intend to carry out the threat
iii. Intimidation is type of true threat
Obscenity
i. Law prohibiting the distribution of obscene materials must be limited to works which
1. Taken as a whole appeal to the prurient interest in sex
2. Which portray sexual conduct in a patently offensive way
3. Which, taken as a whole, do not have serious literary, artistic, political, or scientific value
Prurient
- Average person applying contemporary community standards would find that the work, taken as a whole, appeals to prurient interests
- What is prurient may change based on location
Patently offensive
- Whether work depicts or describes, in a patently offensive way, sexual conduct specifically defined by state statute
- Nudity alone is not enough
- States do not need to create expansive lists of what is offensive
- However, must be fairly specific to avoid chilling speech
Lacks serious value
- Whether the work, taken as a whole, based on a national standard, lacks serious literary, artistic, political, or scientific value
- What reasonable person would believe to be special value
Profane and indecent speech
i. Profane and indecent speech that is not obscene is protected
ii. However, government will consider intrusiveness of media to the home and accessibility to minors in determining whether government may regulate profane and indecent speech
b. Applicability
i. Covered
1. Broadcast radio and TV
ii. Not covered
1. Satellite
2. Cable
3. Internet
Adult porn
i. Protected
1. Unless obscene
Possession of adult porn
i. Protected
1. Even if obscene
Actual child porn
i. Not protected
b. Exceptions
i. Visual representations of child porn allowed
Commercial speech
Speech can be regulated if:
i. Speech concerns lawful activity and is not misleading
ii. Government interest is substantial
iii. Regulation directly advances the asserted government interest
iv. Narrowly tailored or proportional (no more restrictive than necessary but does not need to be least restrictive alternative)
Torts
a. Claims
i. Defamation
ii. Intentional infliction of emotional distress (IIED)
iii. Privacy
iv. Publicity
Public figures
i. Two types
1. Public official
2. Public figure
Defamation (public person, public speech)
- If the speaker or subject of speech is public person and speaker is speaking on matter of public concern, plaintiff must show:
a. Clear and convincing evidence that the statement was false and
b. Made with actual malice
i. Actual malice is knowledge the statement was false or reckless disregard for its falsity - Additional requirements
a. Falsity
i. Requires subject awareness of probable falsity
Defamation (private person, public speech)
- If the speaker or subject of the speech is private person and speaker is speaking on a matter of public concern:
a. Speaker is liable in negligence for compensative damages
b. Actual malice standard applies to presumed or punitive damages
Defamation (public person, private speech)
- If the speaker or subject of the speech is public person and speaker is speaking on a private matter:
a. Plaintiff must show that the offending publication contained false statement of fact
b. Made with actual malice
Defamation (private person, private speech)
- If the speaker or subject of speech is private person and speaker is speaking on a private matter:
a. Plaintiff need only establish negligence to recover for all damages
Intentional infliction of emotional distress
i. Government may not impose IIED liability merely for outrageous or offensive speech or
ii. If the speech is related to a matter of public concern
Hate speech
i. Strict scrutiny
ii. Hate is a viewpoint
1. See
a. Matal v. Tam
i. The Slants
b. Brandenburg v. Ohio
i. KKK’s right to free speech
c. Virginia v. Black
i. Cross burning
Exception to protection of hate speech
i. Group libel
c. Case
i. Beauharnais v. Illinois
1. Court held that the government could prevent group libel in response to rising racial tensions in Chicago
Communicative conduct
a. Communicative conduct requires:
i. Intent
ii. Likely to be understood
Standard for communicative conduct
a. If regulation is related to suppression, then apply strict scrutiny (e.g., Citizens United)
b. Government may regulate communicative conduct if:
i. Regulation must be within constitutional power
ii. Serving important or substantial interests
iii. Unrelated to suppression (i.e., may not target message or speaker)
iv. No greater than what is essential
Factors for deciding whether public or nonpublic forum
a. (1) Tradition of availability of the place for speech
b. (2) Extent to which speech is incompatible with the usual function of the place
c. (3) Whether the primary purpose of the place is for speech
Categories of public forum
a. Traditional public forum
b. Designated public forum
c. Limited public forum
d. Nonpublic forum
Traditional public forum
- Public forums are government property that the government is constitutionally obligated to make available for speech
ii. Examples - Sidewalks, parks, and streets
Standard for traditional and designated public forums
Government may regulate if:
a. Content neutral
b. Reasonable time, place, and manner restriction that serves important government interest and leaves open adequate alternative channels of communication
c. Any prior restraint provides criteria for guiding discretion and
d. Regulation is narrowly tailored to achieving government interest (but need not be least restrictive alternative)
Designated public forum
- Not traditionally open but choose to be open to public
- Subject to strict scrutiny once it opens to public
- Once open as public forum, it cannot restrict speech of anyone
ii. Examples - Public universities and public schools
Limited public forum
i. Generally
1. Opened only for certain groups or certain topics
ii. Examples
1. Hastings student groups
Standard for limited and nonpublic forums
- Government may regulate if:
a. Reasonable
b. Viewpoint neutral
Nonpublic forum
- Nonpublic forums are government properties that the government can close to all speech activities
- Government may prohibit or restrict speech in nonpublic forums as long as the regulation is reasonable and viewpoint neutral
ii. Examples - Prisons, military bases, and post offices
Private property
No right to use private property owned by others for speech
Speech in authoritarian government institutions
- Military or prisons
- Public schools
- Government employees
Standard for speech restrictions in military and prisons
Reasonable regulations allowed for military and penal functions (rational basis)
Standard for speech restrictions in public schools
Students do not shed right to free speech at the schoolhouse gate but government may regulate
1. Speech that materially disrupt schoolwork or invade rights of others
2. Sexual speech
3. School-sponsored speech
4. Speech supporting illicit drug use
Standards for speech restrictions on government employees
i. Off-job speech
1. Government employees may speak as private citizens on matters of public concern if importance of employee speech outweighs need for government to prohibit employee’s speech
ii. On-job speech
1. However, no First Amendment protection for on-the-job speech related to official duties
Freedom of association
- Congress shall make no law abridging the right of the people peaceably to assemble
a. Including
i. Prohibiting or punishing expressive association
ii. Requiring disclosure of membership
Standard for restrictions on freedom of association
- Government may regulate association if:
a. Justified by compelling interest
b. Unrelated to suppression of ideas
c. Cannot be achieved through significantly less restrictive means - Government may not regulate association if discrimination is integral to expressive activity
Types of association
- Intimate association
- Expressive association
Expressive association
- Intent
- Likelihood to be understood
Standard for restrictions on membership (freedom of association)
a. Government can only prohibit or punish membership if:
i. Actively affiliated
ii. Knowledge of illegality
iii. Specific intent to further illegality
Standard for disclosure requirements (freedom of association)
i. Exacting scrutiny
1. Substantial relation to
2. Important interest
3. Narrowly tailored
Disclosure (freedom of association)
Allowed for officials or employees (Pickering, Garcetti) or for campaign contributions (Citizens United), but not for rank-and-file members due to chilling effect (NAACP)
Types of disclosure requirements
i. General membership organizations
ii. Campaign disclosure
iii. Disclosure of charitable organizations
Restrictions on disclosure of membership for general membership organizations (freedom of association)
Not allowed
Restrictions on disclosure requirements for campaign disclosure (freedom of association)
Allowed
Restrictions on disclosure requirements for charitable organizations (freedom of association)
Requires “exacting scrutiny” for compelled disclosure
Compelled association
i. Burden on compelled association (via union fees) related to political activity is not justified
ii. Burden on compelled association (via student fees) unrelated to political activity is justified
Discrimination by association
i. Sex and gender
1. Generally
a. Challenger wins
2. Standard
a. Strict scrutiny
ii. Sexual orientation
1. Generally
a. Challenged group wins
2. Standard
a. Strict scrutiny
Intimate association
i. Government has no right to regulate intimidate association (e.g., family and other small and highly selective groups)
ii. This means individuals have the right to discriminate in their intimate associations
Freedom of religion
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof
What is religion
What the individual sincerely believes plays the role of religion in their life
Standard for free exercise
i. Incidental burden
1. If incidental burden imposed by
2. Valid and neutral law of general applicability
3. Court applies rational basis
ii. Substantial burden
1. If law substantially burdens and targets religion
2. Court applies strict scrutiny
a. Unless
i. Hybrid rights
ii. Unemployment
iii. Ministerial exception
Valid (free exercise)
Within the government’s power
Neutral (free exercise)
Not neutral if government restricts practice because of religious nature (i.e., targeted)
Generally applicable (free exercise)
Not generally applicable if invites government to consider particular reasons for person’s conduct by providing mechanism for individual exemptions
Establishment clause
- If discrimination among religious sects
a. Strict scrutiny - Otherwise, government may not violate “historical practices and understandings” (e.g., no government coercion of religion)
a. Threshold question
i. Whether the government’s action would have been a violation at the time the First and Fourtheenth Amendments were ratified
Theories of establishment
i. Separation
1. To the greatest extent possible, government and religion should be separated
ii. Neutrality
1. Government cannot favor religion over secularism or one religion over others
iii. Accommodations
1. Court should interpret the Establishment Clause to recognize the importance of religion in society and accommodate its presence in government
a. Current era
Traditional interpretation of the establishment clause
Traditionally, the government may not:
i. Promote or affiliate itself with any religious doctrine or organization
ii. Discriminate among persons on the basis of their religious beliefs and practices
iii. Delegate a governmental power to a religious institution
iv. Involve itself too deeply in such institution’s affairs
Standard for coercion
- Coercion requires record evidence
- Presumption against coercion
- However, the government still may not directly sponsor religious activity (i.e. prayer in public schools)
Government funding of religion
Government presumably may not directly subsidize religion, but government may indirectly subsidize religion if funding is neutral, broadly available, and subject to independent private choice (e.g. school playground)
Interplay between freedom of religion and free speech
Suppressing religious speech or excluding religion from receiving government benefits may violate free speech
1. Rosenberger v. Rector and Visitors of the University of Virginia
a. If the university funds all other student groups but not the Christian Wide Awake organization, that is impermissible content and viewpoint discrimination
2. Kennedy v. Bremerton
a. Court held that the district’s restrictions on a football school’s private act of prayer were facially invalid
Laws requiring businesses to be closed on Sundays (freedom of religion)
Allowed
Laws requiring individuals to pay social security (freedom of religion)
Allowed
Laws denying tax exempt status to schools that engaged in discrimination based on sincere religious beliefs (freedom of religion)
Allowed
Laws denying of religious exemption to assigned social security number (freedom of religion)
Allowed
Laws prohibiting individuals from wearing yamakas in the military (freedom of religion)
Allowed
Accommodating religion
Court used to require government not to endorse religion; now government has no choice but to endorse or at least allow it
Endorsing prayer
Government may not officially endorse prayer, but it must allow private moment of prayer for government employees
Legislative prayer
- Permissible
a. Ceremonial prayer
b. Acknowledgement of importance of religion - Prohibited
b. Pattern of prayers that, over time, denigrate, proselytize, or betray an impermissible government purpose
Infringements of freedom of speech
Laws that significantly burden speech are ones:
* That allow civil liability for expression;
* That prevent compensation for speech;
* That compel expression;
* That condition a benefit on a person’s foregoing speech; and
* That pressure individuals not to speak
Framework for free speech analysis
ii. Analytical framework
1. Protected speech
a. Is it speech?
b. It the speech protected?
c. Is there an exception?
2. Infringement
a. Laws that significantly burden speech are ones:
i. That allow civil liability for expression;
ii. That prevent compensation for speech;
iii. That compel expression;
iv. That condition a benefit on a person’s foregoing speech; and
v. That pressure individuals not to speak
3. Apply scrutiny
Incorporation (due process)
i. Fifth Amendment applies due process to the federal government
ii. Fourteenth Amendment applies due process and equal protection to the states
Contracts clause issue spotting
a. Only raise if:
i. Targeted interference with right to contract
b. Example
i. Pandemic eviction moratorium
Temporary takings
“Taking” is different from “pausing” someone’s business; temporary takings are controlled by Tahoe
Post-enactment owners (takings)
Post-enactment owner is restricted by pre-existing reasonable regulations, not unreasonable regulations
Nexus test (takings)
- Requires nexus between harm and condition government is trying to impose
i. Problem matches condition being imposed
ii. Rough proportionality
Just compensation (takings)
a. Market value at time of taking
b. However, if no loss because funds are too small and too temporary to earn interest, then no compensation due
c. Invalidation of ordinance is not enough
Right to refuse medical treatment (if incompetent)
Balance personal interest with state interest in keeping patient alive with clear and convincing evidence
Right to refuse medical treatment (if competent)
Fundamental right
Speech integral to criminal conduct
If speech is integral to criminal conduct (e.g. conspiracy and solicitation), then analyze as conduct
“Inherently expressive”
Expressive association must be inherently expressive
Exception to third-party standing rule
Overbreadth doctrine
Procedural safeguards (licensing)
i. Full and fair hearing before speech is restricted
ii. Prompt decision by government
iii. Prompt judicial review (based on availability)
Probable falsity (defamation)
Requires subject awareness of probable falsity
Actual malice (IIED)
Applies to IIED cases where subject or speaker is public figure
Public schools (free speech)
- Government may regulate
a. Disruptive speech
b. Sexual speech
c. School-sponsored speech
d. Speech promoting illicit drug use
c. Ban books (?)
Banning books (free speech)
- Generally no content suppression
- However, must make some content choices
- Library not expected to have every book
Livelihood (right to travel)
a. Livelihood
i. Shrimpers
ii. Lawyers
b. Not livelihood
i. Hunters
Strict scrutiny
a. Compelling ends
b. Necessary or narrowly tailored
Rational basis
a. Legitimate ends
b. Rationally related
Accommodations theory
Court should interpret the Establishment Clause to recognize the importance of religion in society and accommodate its presence in government
