[Note: Numbers in brackets refer to the printed pages of the Emanuel Law Outline where the topic is discussed.]

Emanuel Law Outlines 
Constitutional Law

Chapter 1 
INTRODUCTION

I. THREE STANDARDS OF REVIEW

A. Three standards: There are three key standards of review which reappear constantly throughout Constitutional Law. When a court reviews the constitutionality of government action, it is likely to be choosing from among one of these three standards of review: (1) the mere rationality standard; (2) the strict scrutiny standard; and (3) the middle-level review standard. [2]

1. Mere rationality: Of the three standards, the easiest one to satisfy is the "mere rationality" standard. When the court applies this "mere rationality" standard, the court will uphold the governmental action so long as two requirements are met:

a. Legitimate state objective: First, the government must be pursuing a legitimate govern mental objective. This is a very broad concept - practically any type of health, safety or "general welfare" goal will be found to be "legitimate."

b. Rational relation: Second, there has to be a "minimally rational relation" between the means chosen by the government and the state objective. This requirement, too, is extremely easy to satisfy: only if the government has acted in a completely "arbitrary and irrational" way will this rational link between means and end not be found.

2. Strict scrutiny: At the other end of the spectrum, the standard that is hardest to satisfy is the "strict scrutiny" standard of review. This standard will only be satisfied if the governmental act satisfies two very tough requirements:

a. Compelling objective: First, the objective being pursued by the government must be "compelling" (not just "legitimate," as for the "mere rationality" standard); and

b. Necessary means: Second, the means chosen by the government must be "necessary" to achieve that compelling end. In other words, the "fit" between the means and the end must be extremely tight. (It's not enough that there's a "rational relation" between the means and the end, which is enough under the "mere rationality" standard.)

i. No less restrictive alternatives: In practice, this requirement that the means be "necessary" means that there must not be any less restrictive means that would accomplish the government's objective just as well.

3. Middle-level review: In between these two review standards is so-called "middle-level" review.

a. "Important" objective: Here, the governmental objective has to be "important" (half way between "legitimate" and "compelling").

b. "Substantially related" means: And, the means chosen by the government must be "substantially related" to the important government objective. (This "substantially related" standard is half way between "rationally related" and "necessary").

B. Consequences of choice: The court's choice of one of these standards of review has two important consequences: [3]

1. Burden of persuasion: First, the choice will make a big difference as to who has the burden of persuasion.

a. Mere rationality: Where the governmental action is subject to the "mere rationality" standard, the individual who is attacking the government action will generally bear the burden of persuading the court that the action is unconstitutional.

b. Strict scrutiny: By contrast, if the court applies "strict scrutiny," then the governmental body whose act is being attacked has the burden of persuading the court that its action is constitutional.

c. Middle-level review: Where "middle level" scrutiny is used, it's not certain how the court will assign the burden of persuasion, but the burden will usually be placed on the government.

2. Effect on outcome: Second, the choice of review standard has a very powerful effect on the actual outcome. Where the "mere rationality" standard is applied, the governmental action will almost always be upheld. Where "strict scrutiny" is used, the governmental action will almost always be struck down. (For instance, the Supreme Court applies strict scrutiny to any classification based on race, and has upheld only one such strictly scrutinized racial classification in the last 50 years.) Where middle-level scrutiny is used, there's roughly a 50-50 chance that the governmental action will be struck down.

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a. Exam Tip: So when you're writing an exam answer, you've got to concentrate exceptionally hard on choosing the correct standard of review. Once you've determined that a particular standard would be applied, then you might as well go further and make a prediction about the outcome: if you've decided that "mere rationality" applies, you might write something like, "Therefore, the court will almost certainly uphold the governmental action." If you've chosen strict scrutiny, you should write something like, "Therefore, the governmental action is very likely to be struck down."

C. When used: Here is a quick overview of the entire body of Constitutional Law, to see where each of these review standards gets used: [3]

1. Mere rationality: Here are the main places where the "mere rationality" standard gets applied (and therefore, the places where it's very hard for the person attacking the governmental action to get it struck down on constitutional grounds):

a. Dormant Commerce Clause: First, the "mere rationality" test is the main test to determine whether a state regulation that affects interstate commerce violates the "Dormant Commerce Clause." The state regulation has to pursue a legitimate state end, and be rationally related to that end. (But there's a second test which we'll review in greater detail later: the state's interest in enforcing its regulation must also outweigh any burden imposed on interstate commerce, and any discrimination against interstate commerce.)

b. Substantive due process: Next comes substantive due process. So long as no "fundamental right" is affected, the test for determining whether a governmental act violates substantive due process is, again, "mere rationality." In other words, if the state is pursuing a legitimate objective, and using means that are rationally related to that objective, the state will not be found to have violated the substantive Due Process Clause. So the vast bulk of economic regulations (since these don't affect fundamental rights) will be tested by the mere rationality standard and almost certainly upheld.

c. Equal protection: Then, we move on to the equal protection area. Here, "mere rationality" review is used so long as: (1) no suspect or quasi-suspect classification is being used; and (2) no fundamental right is being impaired. This still leaves us with a large number of classifications which will be judged based on the mere rationality standard, including: (1) almost all economic regulations; (2) some classifications based on alienage; and (3) rights that are not "fundamental" even though they are very important, such as food, housing, and free public education. In all of these areas, the classification will be reviewed under the "mere rationality" standard, and will therefore almost certainly be upheld.

d. Contracts Clause: Lastly, we find "mere rationality" review in some aspects of the "Obligation of Contracts" Clause.

2. Strict scrutiny: Here are the various contexts in which the court applies strict scrutiny: [4]

a. Substantive due process/fundamental rights: First, where a governmental action affects fundamental rights, and the plaintiff claims that his substantive due process rights are being violated, the court will use strict scrutiny. So when the state impairs rights falling in the "privacy" cluster of marriage, child-bearing, and child-rearing, the court will use strict scrutiny (and will therefore probably invalidate the governmental restriction). For instance, government restrictions that impair the right to use contraceptives receive this kind of strict scrutiny.

b. Equal protection review: Next, the court uses strict scrutiny to review a claim that a classification violates the plaintiff's equal protection rights, if the classification relates either to a suspect classification or a fundamental right. "Suspect classifications" include race, national origin, and (sometimes) alienage. "Fundamental rights" for this purpose include the right to vote, to be a candidate, to have access to the courts, and to travel interstate. So classifications that either involve any of these suspect classifications or impair any of these fundamental rights will be strictly scrutinized and will probably be struck down.

c. Freedom of expression: Next, we move to the area of freedom of expression. If the government is impairing free expression in a content-based way, then the court will use strict scrutiny and will almost certainly strike down the regulation. In other words, if the government is restricting some speech but not others, based on the content of the messages, then this suppression of expression will only be allowed if necessary to achieve a compelling purpose (a standard which is rarely found to be satisfied in the First Amendment area). Similarly, any interference with the right of free association will be strictly scrutinized.

d. Freedom of religion/Free Exercise Clause: Lastly, the court will use strict scrutiny to evaluate any impairment with a person's free exercise of religion. Even if the government does not intend to impair a person's free exercise of his religion, if it substantially burdens his exercise of religion the government will have to give him an exemption from the otherwise-applicable regulation unless denial of an exemption is necessary to achieve a compelling governmental interest.

3. Middle-level review: Finally, here are the relatively small number of contexts in which the court uses middle-level review: [5]

a. Equal protection/semi-suspect: First, middle-level review will be used to judge an equal protection claim, where the classification being challenged involves a semi-suspect trait. The two traits which are considered semi-suspect for this purpose are: (1) gender; and (2) illegitimacy. So any government classification based on gender or ilegitimacy will have to be "substantially related" to the achievement of some "important" governmental interest.

b. Contracts Clause: Second, certain conduct attacked under the Obligation of Contracts Clause will be judged by the middle-level standard of review.

c. Free expression/non-content-based: Finally, in the First Amendment area we use a standard similar (though not identical) to the middle-level review standard to judge government action that impairs expression, but does so in a non-content-based manner. This is true, for instance, of any content-neutral "time, place and manner" regulation.

Chapter 2 
THE SUPREME COURT'S AUTHORITY AND THE FEDERAL JUDICIAL POWER

I. THE SUPREME COURT'S AUTHORITY AND THE FEDERAL JUDICIAL POWER

A. Marbury principle: Under Marbury v. Madison, it is the Supreme Court, not Congress, which has the authority and duty to declare a congressional statute unconstitutional if the Court thinks it violates the Constitution. [7 - 8]

B. Supreme Court review of state court decision: The Supreme Court may review state court opinions, but only to the extent that the decision was decided based on federal law. [9 - 10]

1. "Independent and adequate state grounds": Even if there is a federal question in the state court case, the Supreme Court may not review the case if there is an "independent and adequate" state ground for the state court's decision. That is, if the same result would be reached even had the state court made a different decision on the federal question, the Supreme Court may not decide the case. This is because its opinion would in effect be an "advisory" one. [10]

a. Violations of state and federal constitutions: If a state action violates the same clause of both state and federal constitutions (e.g., the Equal Protection Clause of each), the state court decision may or may not be based on an "independent" state ground. If the state court is saying, "This state action would violate our state constitution whether or not it violated the federal constitution," that's "independent." But if the state court is saying, "Based on our reading of the constitutional provision (which we think has the same meaning under both the state and federal constitutions), this state action violates both constitutions," this is not "independent," so the Supreme Court may review the state court decision. [11]

2. Review limited to decisions of highest state court: Federal statutes limit Supreme Court review to decisions of the highest state court available. But this does not mean that the top-ranking state court must have ruled on the merits of the case in order for the Supreme Court to review it. All that is required is that the case be heard by the highest state court available to the petitioner. (Example: A state trial court finds a particular state statute to be valid under the federal Equal Protection Clause. An intermediate appellate court in the state affirms; the highest state court refuses to hear an appeal from the affirmance. As a matter of both the federal judicial power and federal statutes, the Supreme Court may hear this case, because the intermediate appellate court was the highest court "available" to the petitioner.)

C. Federal judicial power: Article III, Section 2 sets out the federal judicial power. This includes, among other things: (a) cases arising under the Constitution or the "laws of the U.S." (i.e., cases posing a "federal question"); (b) cases of admiralty; (c) cases between two or more states; (d) cases between citizens of different states; and (e) cases between a state or its citizens and a foreign country or foreign citizen. Note that this does not include cases where both parties are citizens (i.e., residents) of the same state, and no federal question is raised. [11]

II. CONGRESS' CONTROL OF FEDERAL JUDICIAL POWER

A. Congress' power to decide: Congress has the general power to decide what types of cases the Supreme Court may hear, so long as it doesn't expand the Supreme Court's jurisdiction beyond the federal judicial power (as listed in the prior paragraph.) [Ex parte McCardle] [12 - 13]

B. Lower courts: Congress also may decide what lower federal courts there should be, and what cases they may hear. Again, the outer bound of this power is that Congress can't allow the federal courts to hear a case that is not within the federal judicial power. [13]

Example 1: Congress may cut back the jurisdiction of the lower federal courts pretty much whenever and however it wishes. Thus Congress could constitutionally eliminate diversity jurisdiction (i.e., suits between citizens of different states), even though such suits are clearly listed in the Constitution as being within the federal judicial power.

Example 2: But Congress could not give the lower federal courts jurisdiction over cases between two citizens of the same state, where no federal issue is posed. The handling of such a case by the federal courts would simply go beyond the federal judicial power as recited in the Constitution.

Chapter 3 
FEDERALISM AND FEDERAL POWER GENERALLY

I. TE CONCEPT OF FEDERALISM

A. The federalist system: We have a "federalist" system. In other words, the national government and the state governments co-exist. Therefore, you always have to watch whether some power being asserted by the federal government is in fact allowed under the Constitution, and you must also watch whether some power asserted by the states is limited in favor of federal power. [17]

B. Federal government has limited powers: The most important principle in this whole area is that the federal government is one of limited, enumerated powers. In other words, the three federal branches (Congress, the executive branch, and the federal courts) can only assert powers specifically granted to them by the United States Constitution. So any time Congress passes a statute, or the President issues, say, an Executive Order, or the federal courts decide a case, you've got to ask: What is the enumerated, specified power in the U.S. Constitution that gives the federal branch the right to do what it has just done? (This is very different from what our Constitution says about the powers of state governments: state governments can do whatever they want as far as the U.S. Constitution is concerned, unless what they are doing is expressly forbidden by the Constitution.) [17]

1. No general police power: The most dramatic illustration of this state/federal difference is the general "police power." Each state has a general police power, i.e., the ability to regulate solely on the basis that the regulation would enhance the welfare of the citizenry. But there is no general federal police power, i.e., no right of the federal government to regulate for the health, safety or general welfare of the citizenry. Instead, each act of federal legislation or regulation must come within one of the very specific, enumerated powers (e.g., the Commerce Clause, the power to tax and spend, etc.).

a. Tax and spend for general welfare: Congress does have the right to "lay and collect taxes...to pay the debts and provide for the...general welfare of the United States.... " (Article I, Section 8.) But the phrase "provide for the...general welfare" in this sentence modifies "lay and collect taxes...to pay the debts.... " In other words, the power to tax and spend is subject to the requirement that the general welfare be served; there is no independent federal power to provide for the general welfare.

C. "Necessary and Proper" Clause: In addition to the very specific powers given to Congress by the Constitution, Congress is given the power to "make all laws which shall be necessary and proper for carrying into execution" the specific powers. The "Necessary and Proper" Clause means that if Congress is seeking an objective that is within the specifically enumerated powers, then Congress can use any means that is: (1) rationally related to the objective Congress is trying to achieve; and (2) is not specifically forbidden by the Constitution. [19 - 21]

D. Can't vilate specific constitutional provision: Even where Congressional action appears to fall within a specific grant of power, the federal action may not, of course, violate some other specific constitutional guarantee. In other words, Congressional (or other federal) action must satisfy two tests to be constitutional: (1) it must fall within some specific grant of power under the Constitution; and (2) it must not violate any specific constitutional provision. [18]

Chapter 4, 5 and 8 
POWERS OF THE FEDERAL GOVERNMENT; THE SEPARATION OF POWERS

I. POWERS OF THE THREE FEDERAL BRANCHES

A. Powers of the three branches: Here is a summary of the powers of the three branches of the federal government:

1. Congress: Here are the main powers given to Congress [18]:

a. Interstate commerce: Congress has the power to regulate interstate commerce, as well as foreign commerce.

b. Taxing and spending: Congress has the power to tax and the power to spend.

c. DC: Congress can regulate the District of Columbia.

d. Federal property: Congress has power to regulate and dispose of federal property.

e. War and defense: Congress can declare war, and can establish and fund the armed forces.

f. Enforcement of Civil War amendments: Congress can enforce the post-Civil War amendments. (For instance, under its power to enforce the Thirteenth Amendment's abolition of slavery, Congress can ban even private intrastate non-commercial conduct.)

2. President: Here are the main powers of the President:

a. Execution of laws: The President holds the "executive power." That is, he carries out the laws made by Congress. It is his obligation to make sure the laws are "faithfully executed."

b. Commander in Chief: He is Commander in Chief of the armed forces. So he directs and leads our armed forces (but he cannot declare war - only Congress can do this.)

c. Treaty and foreign affairs: The President can make treaties with foreign nations (but only if two-thirds of the Senate approves). He appoints ambassadors. Also, he effectively controls our foreign policy - some of this power over foreign policy stems from his right to appoint ambassadors, but much is simply implied from the nation's need to speak with a single voice in foreign affairs (so that Congressional involvement in the details of foreign affairs will generally not be appropriate).

d. Appointment of federal officers: The President appoints all federal officers. These include cabinet members, federal judges and ambassadors. (But the Senate must approve all such federal officers by majority vote.) As to "inferior [federal] officers," it's up to Congress to decide whether these should be appointed by the President, by the judicial branch, or by the "heads of departments" (i.e., cabinet members). (But Congress can't make these lower-level appointments itself; it may merely decide who can make these appointments.)

c. Promotions: A race-based scheme of awarding promotions to cure past discrimination (so that African Americans eventually get promoted to the levels that they would have been at had there not been any discrimination in the first place) is the easiest to justify, since it damages the expectations of whites the least. But even this will have to satisfy strict scrutiny. [284]

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4. Drawing of election districts: A voter who thinks she has been disadvantaged by the drawing of electoral districts in a race-conscious way may bring an equal protection suit against the government body that drew the district lines. But the plaintiff must show either: (1) that the lines were drawn with the purpose and effect of disadvantaging the group of which P is a part; or (2) that race was the "predominant factor" in how the district lines were drawn. [284 - 288]

a. Loss at election not sufficient: The mere fact that the plaintiff group (e.g., whites) does not get the same percentage of seats as it has of the total group can never by itself satisfy the "discriminatory effect" part of test (1) above. The Ps must show that they lack political power, and have been fenced out of the political process, over many elections. (Example: Suppose a group of white voters claim that district lines have been drawn to increase the chance that an African American will be elected in a particular district. Even if the Ps can show this, and show that a black was in fact elected, without more the Ps will lose - only if the Ps can show that they have been consistently denied fair participation in the electoral process, over the course of multiple elections (something white voters can rarely show) can the Ps win.)

b. Race as predominant factor: But if the court concludes that race was the predominate factor in how the electoral district lines were drawn, the court will strictly scrutinize the lines, and probably strike them down. Legislatures may "take account" of race in drawing district lines (just as they take account of ethnic groups, precinct lines, and many other factors), but they may not make race the predominant factor, unless they can show that using race in this way is necessary to achieve a compelling governmental interest (e.g., eradication of prior official voting-rights discrimination). The desire to create the maximum number of "majority black" districts will not by itself be a "compelling" interest. [Miller v. Johnson] [287]

V. MIDDLE-LEVEL REVIEW (GENDER, ILLEGITIMACY AND ALIENAGE)

A. Middle-level review generally: A few types of classifications are subjected to "middle-level" review, easier to satisfy than strict scrutiny but tougher than "mere rationality." [291]

1. Standard: Where we apply the middle-level standard, the government objective must be "important," and the means must be "substantially related" to that objective.

a. No hypothetical objective: One important respect in which mid-level review differs from "mere rationality" review concerns the state objectives that the Court will consider. Recall that in the case of the easy "mere rationality" review, the Court will consider virtually any objective that might have conceivably motivatd the legislature, regardless of whether there's any evidence that that objective was in fact in the legislature's mind. But with "intermediate-level" review, the Court will not hypothesize objectives; it will consider only those objectives that are shown to have actually motivated the legislature.

2. What classes: There are two main types of classifications that get middle-level review: (1) gender; and (2) illegitimacy. We also consider alienage here, because it has aspects of both strict scrutiny and mere rationality, so it's kind of a hybrid.

B. Gender: The most important single rule to remember in the entire area of middle-level scrutiny is that sex-based classifications get middle-level review. [Craig v. Boren] So if government intentionally classifies on the basis of sex, it's got to show that it's pursuing an important objective, and that the sex-based classification scheme is substantially related to that objective. [292 - 293]

Example: City sets the mandatory retirement age for male public school teachers at 65, and for female teachers at 62. Because this classification is based upon gender, it must satisfy middle-level review: City must show that its sex-based classification is substantially related to the achievement of an important governmental objective. In this case, it is unlikely that City can make this showing.

1. Benign as well as invidious: The same standard of review is used whether the sex-based classification is "invidious" (intended to harm women) or "benign" (intended to help women, or even intended to redress past discrimination against them). [240]

2. Male or female plaintiff: This means that where government classifies based on sex, the scheme can be attacked either by a male or by a female, and either gender will get the benefit of mid-level review.

Example: Oklahoma forbids the sale of low-alcohol beer to males under the age of 21, and to females under the age of 18. Held, this statute violates the equal protection rights of males aged 18 to 20, because it is not substantially related to the achievement of important governmental objectives. [Craig v. Boren] [292 - 293]

3. Purpose: Sex-based classifications will only be subjected to middle-level review if the legislature has intentionally discriminated against one sex in favor of the other. (This is similar to the requirement for strict scrutiny in race-based cases.) If, as the result of some governmental act, one sex happens to suffer an unintended burden greater than the other sex suffers, that's not enough for mid-level review.

Example: Massachusetts gies an absolute preference to veterans for civil service jobs. It happens that 98% of veterans are male. Held, this preference does not have to satisfy mid-level review because the unfavorable impact on women was not intended by the legislature. Therefore, the preference does not violate equal protection, since it satisfies the easier "mere rationality" standard. [Personnel Admin. of Mass. v. Feeney]

4. Stereotypes: Be on the lookout for stereotypes: if the legislature has made a sex-based classification that seems to reinforce stereotypes about the "proper place" of women, it probably cannot survive middle-level review. (Example: Virginia maintains Virginia Military Institute as an all-male college, because of the state's view that only men can handle the school's harsh, militaristic method of producing "citizen soldiers." Held, this sex-based scheme does not satisfy mid-level review, because it stems from traditional ways of thinking about gender roles; there are clearly some women who are qualified for and would benefit from the VMI approach, and these women may not be deprived of the opportunity to attend VMI. [U.S. v. Virginia]) [294 - 297]

5. "Exceedingly persuasive justification": Although the Supreme Court still gives gender-based classifications only mid-level, not strict, scrutiny, the Court now applies that scrutiny in a very tough way. The Court now says that it will require an "exceedingly persuasive justification" for any gender-based classification, and will review it with "skeptical scrutiny." [U.S. v. Virginia, supra.] [291]

C. Illegitimacy: Classifications disadvantaging illegitimate children are "semi-suspect" and therefore get middle-level review. [312]

1. Claims can't be flatly barred: Therefore, the state can't simply bar unacknowledged illegitimate children from bringing wrongful death actions, from having any chance to inherit, etc. Such children must be given at least some reasonable opportunity to obtain a judicial declaration of paternity (e.g., in a suit brought by their mother). Once they obtain such a declaration, they must be treated equivalently to children born legitimate.

Example: Pennsylvania passes a statute of limitations saying that no action for child support may be brought on behalf of an out-of-wedlock child unless the action is brought before the child turns 6. Held, the statute violates the child's equal protection rights. Since the classification is based on out-of-wedlock status, it will be upheld only if it is substantially related to an important governmental objective. Concededly, Pennsylvania has an interest in avoiding the litigation of stale or fraudulent claims. But the 6-year statute of limitations is not "substantially related" to the achievement of that interest. [Clark v. Jeter]

D. Alienage: Alienage might be thought of as a "semi-suspect" category. In fact, though, alienage classifications, depending on the circumstances, will be subjected either to strict scrutiny or to mere rationality review (so there's only middle-level review as a kind of "average").

1. Distinguished from national origin: Be careful to distinguish "alienage" from "national origin": if a person is discriminated against because he is not yet a United States citizen, that's "alienage" discrimination. If, on the other hand, he's discriminated against because he is a naturalized citizen who originally came from Mexico (or whose ancestors came from Mexico), that's discrimination based on "national origin." Remember that national origin always triggers strict scrutiny, whereas alienage does not necessarily do so.

2. General rule: Subject to one large exception covered below, discrimination against aliens is subject to strict scrutiny. [307]

Example 1: A state cannot deny welfare benefits to aliens, because such a classification based on alienage cannot be shown to be necessary to the achievement of a compelling state interest. [Graham v. Richardson]

Example 2: A state cannot prevent resident aliens from practicing law, because such a classification cannot survive strict scrutiny. [In re Griffiths]

3. "Representative government" exception: But the major exception is that strict scrutiny does not apply where the discrimination against aliens relates to a "function at the heart of representative government." Basically, this means that if the alien is applying for a government job, and the performance of this job is closely tied in with politics, justice or public policy, we use only "mere rationality" review. So government may discriminate against aliens with respect to posts like state trooper, public school teacher, or probation officer. See, e.g., Ambach v. Norwick. [308]

a. Low-level government jobs: But don't make the mistake of thinking that because what's involved is a government job, strict srutiny automatically fails to apply. If the job is not closely tied in with politics, justice or public policy - something that is true of most low-level jobs - then strict scrutiny applies.

Example: Strict scrutiny would almost certainly be applied to a city ordinance that said that no resident alien may work for the city government as a sanitation worker.

4. Education of illegal aliens: A last quirky rule in the area of alienage is that if a state denies free public education to illegal aliens, this will be subjected to intermediate-level review, and probably struck down. [Plyler v. Doe] (But this comes from a combination of the fact that the plaintiffs were aliens and also that they were children. If a state discriminates against adult illegal aliens, we don't know whether something higher than middle-level review will be applied.) [309 - 312]

E. Other unpopular groups: Discrimination against other unpopular groups might conceivably be subjected to middle-level review. For instance, discrimination against the elderly or the disabled might possibly trigger mid-level review, but the Court has not addressed this question. (This would be a good gray area for an exam question - you could argue both the pros and the cons of applying mid-level review to these unpopular, frequently-discriminated-against groups.)

1. Homosexuals: Similarly, gays may eventually get the benefit of what is effectively mid-level review. In fact, Romer v. Evans, which struck down an anti-gay Colorado enactment, purports to apply mere-rationality review but seems more like mid-level review. [229]

F. Congressional affirmative action plans: Finally, remember that there's one other area where the Court uses mid-level review: affirmative action programs established by Congress.

VI. FUNDAMENTAL RIGHTS

A. Fundamental rights generally: Now, let's look at the second way strict scrutiny can be triggered in equal protection cases: there will be strict scrutiny not only when a "suspect classification" is used, but also when a "fundamental right" is burdened by the classification the government has selected. Whenever a classification burdens a "fundamental right" or "fundamental interest," the classification will be subjected to strict scrutiny even though the people who are burdened are not members of a suspect class. [318]

1. "Fundamental" defined: "Fundamental" means something absolutely different in this Equal Protection context han it means in the Substantive Due Process context. Remember that in due process, the fundamental rights are ones related to privacy. Here, the fundamental rights are related to a variety of other interests protected by the Constitution, but generally having nothing to do with privacy. [319]

2. List: The short list of rights that are "fundamental" for equal protection strict scrutiny purposes is as follows: (1) the right to vote; (2) maybe the right to be a political candidate; (3) the right to have access to the courts for certain kinds of proceedings; and (4) the right to migrate interstate. [312]

B. Voting rights: The right to vote in state and local elections is "fundamental," so any classification that burdens that right to vote will be strictly scrutinized. [323]

Example 1: A poll tax will be strictly scrutinized and almost certainly invalidated. [Harper v. Virginia Bd. of Elect.]

Example 2: A requirement that the voter own property or otherwise have some "special interest" in order to vote will normally burden the fundamental right to vote and thus be struck down. [Kramer v. Union Free School Dist.] (The one exception is special-purpose districts like water districts, which may restrict the vote to landowners. [Ball v. James])

Example 3: The requirement that a voter have resided within the state for more than a certain time prior to election day burdens the right to vote and will be strictly scrutinized. [Dunn v. Blumstein].

1. Limiting of voter's choices: If the state regulation of voting merely has the effect of "burdening" the right to vote, instead of preventing the voter from voting at all, the Court does not strictly scrutinize the regulation. Instead, the Court balances the degree of the burden against the magnitude of the state's interest. This is true, for instance, of regulations that limit the voter's choices. [327]

Example: A state may completely ban all write-in votes, as long as it gives candidates reasonable access to the ballot. [Burdick v. Takushi]

C. Ballot access: The right to e a political candidate, and to have your name on the ballot, seems to be "quasi-fundamental." [327]

1. Two invalid restrictions: The two kinds of ballot restrictions that the Supreme Court does seem to give strict or almost strict scrutiny to are:

a. Unfair to new parties: Restrictions that are unfair to new, not-yet-established political parties. (Example: A rule saying that a minor party can get its candidate on the ballot only if it presents signatures from 15% of the voters, holds a formal primary, and has an elaborate party structure, violates Equal Protection. [Williams v. Rhodes].) [329]

b. Based on wealth: Ballot access limits that are based on wealth. (Example: A $700 candidate filing fee, which the state refuses to waive for an indigent candidate, violates Equal Protection. [Lubin v. Panish])

2. Candidate eligibility rules: But reasonable rules concerning the eligibility of the individual candidate, that don't fall into either of these two categories - unfair to new parties, or based on wealth - seem to be generally upheld by the Court. Thus a state may set a minimum age, or may require that the candidate have resided for a certain period of time in the state or district where he is seeking office.

D. Court access: Access to the courts is sometimes a "fundamental right," so that if the right is burdened by a state-imposed classification, that classification will sometimes be closely scrutinized. Basically, what it comes down to is that if the state imposes a fee that the rich can pay but the poor cannot, and the access relates to a criminal case, strict scrutiny will be used. (Example: The state cannot charge an indigent for his trial transcript in a criminal case. [Griffin v. Illinois] Similarly, the state must provide him with free counsel on appeal.) [330 - 332]

1. Civil litigation: When civil litigation is involved, access to the courts is usually not fundamental. Only for various family-law proceedings (e.g., divorce, paternity suits, termination of parental rights) is the state barred from charging fees. [Boddie v. Connecticut] [332 - 333]

E. Right to travel: The so-called "right to travel" is generally a "fundamental" right. This term "right to travel" is misleading - it's really the right to change one's state of residence or employment. So any time the state imposes a classification that burdens one's right to change her state of residence or employment, that classification will be strictly scrutinized. [333 - 336]

1. Duration of residence: This mainly means that if the state imposes a substantial waiting period on newly-arrived residents, before they can receive some vital governmental benefit, this will be strictly scrutinized.

Example: Pennsylvania denies welfare benefits to any resident who has not resided in the state for at least a year. Held, this one-year waiting period impairs the "fundamental right of interstate movement" so it must be strictly scrutinized, and in fact invalidated. [Shapiro v. Thompson]. [334 - 335]

2. Vital government benefit: But the key phrase here is "vital government benefit" - if the benefit is not vital, then the state may impose a substantial waiting period. (Example: A one-year waiting period before a student can qualify for low in-state tuition at the public university probably does not burden a fundamental right, and thus does not need to be strictly scrutinized.)

F. Necessities: The right to "necessities" is not fundamental. So if the state distributes necessities in a way that treats different people differently (or if it distributes the money to be used to buy these things differentially), there will be no strict scrutiny because there is no fundamental right. [337]

1. Education: For instance, one does not have a fundamental right to a public school education. Therefore, the state may allow or even foster inequalities in the distribution of that public school education, without violating any fundamental right, and thus without having to pass strict scrutiny. [San Antonio School Dist. v. Rodriguez] [319 - 322]

Example: The Ps claim that Texas' system of financing public education violates equal protection, because districts with a high property tax base per pupil consistently spend more on education than those with a low base are able to do.

Held, education is not a fundamental right. Therefore, Texas' scheme merely has to undergo "rational relation" review. Because the use of property taxes to finance education is a rational way of achieving the legitimate state goal of giving each local school district a large measure of control over the education its residents get, tis "mere rationality" standard is satisfied. San Antonio School Dist. v. Rodriguez, supra.

a. Complete deprivation: Actually, it's still possible that a complete deprivation of public education might be held to be a violation of a "fundamental" right. If a state simply refused to give any public education at all to some groups of residents, this might be such a large deprivation that it would amount to a violation of a fundamental right, and thus be subject to strict scrutiny. [320]

2. Food, shelter: There is no fundamental right to the material "necessities of life." Thus food, shelter, and medical care are not "fundamental" for equal protection purposes. Therefore, the state may distribute these things unevenly. Similarly, the state may give some people but not others money for these things without having to survive strict scrutiny. (Example: The state can give a smaller per capita welfare payment to big families than small families, without having the scheme subjected to strict scrutiny. This is because the food and shelter for which the payments are used are not "fundamental rights." [Dandridge v. Williams]) [337]


 

Chapter 11 
MISCELLANEOUS CLAUSES

I. FOURTEENTH AMENDMENT PRIVILEGES AND IMMUNITIES

A. Privileges and Immunities Clause Generally: The Fourteenth Amendment has its own "Privileges and Immunities" Clause: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." [349]

1. National rights only: But this clause is very narrowly interpreted: it only protects the individual from state interference with his rights of "national" citizenship. The most important of these rights of "national" citizenship are: (1) the right to travel from state to state (which as we saw is also protected by the Equal Protection Clause); and (2) the right to vote in national elections.

2. Right to change state of residence: The clause is most relevant where a state treats newly-arrived residents less favorably than those who have resided in-state for a longer time: this violates the "right to travel," protected by the clause. (Example: If a state gives newly-arrived residents lower welfare payments than ones who have been residents longer, this is a violation of the "right to travel" protected by the 14th Amendment P&I clause. [Saenz v. Roe]) [350]

3. Strict scrutiny: The Court gives strict scrutiny to state laws that interfere with the rights of national citizenship. [Saenz v. Roe]

II. THE "TAKING" CLAUSE

A. The "Taking" Clause Generally: The Fifth Amendment contains the "Taking" Clause: "[N]or shall private property be taken for public use, without just compensation."

1. General meaning: The gist of the Taking Clause is that the government may take private property under its "power of eminent domain," but if it does take private property, it must pay a fair price. This is true even if the property is taken to serve a compelling governmental interest. [351]

2. Taking vs. regulation: The government (whether it's federal or state) must pay for any property that it "takes." On the other hand, if it merely "regulates" property under its police power, then it does not need to pay (even if the owner's use of his property, or its value, is substantially diminished). [352 - 359]

a. Land use regulations: Usually the problem of distinguishing between a compensable "taking" and a non-compensable "regulation" occurs in the context of land-use regulation. For a land use regulation to avoid being a taking, it must satisfy two requirements: (1) it must "substantially advance legitimate state interests"; and (2) it must not "deny an owner economically viable use of his land."

i. Substantially advance legitimate state interest: The requirement that the regulation must "substantially advance legitimate state interests" means that there must be a fairly tight fit between the means chosen and the objective being pursued. But there's a wide range of "legitimate" state interests - maintaining a residential feeling through zoning; preserving landmarks; and protecting the environment are examples of legitimate governmental interests.

ii. No denial of economically vible use: The second requirement for a regulation is that it must not "deny an owner economically viable use of his land." Few land use regulations are likely to be found to deny the owner all economically viable use of his land. For instance, if a particular 3-story building is made a landmark, the fact that the owner can't tear down the building to build a skyscraper doesn't deprive him of "all economically viable use". But if the state were to deny the owner the right to build any dwelling on the land, this would probably constitute a denial of all economically viable use. [353]

Example: A county forbids the construction or use of any dwelling within an "interim flood protection area." The Ps own property in such an area. Held, this is such a complete denial of economically viable use that the regulation amounts to a taking, and Ps may recover damages. [First English Evangelical Lutheran Church v. Los Angeles County]

Note: Most zoning, environmental laws and landmark-preservation laws will satisfy these two requirements, and will thus not be takings, merely non-compensable regulations.

b. Permanent physical occupation: If the government makes or authorizes a permanent physical occupation of the property, this will automatically be found to constitute a taking, no matter how minor the interference with the owner's use and no matter how important the countervailing governmental interests. (Example: The state requires landlords to permit cable TV companies to install their cable facilities in the landlord's buildings. Held, this compulsory cabling was a taking because it was a permanent physical occupation, even though it didn't really restrict the owner's use of his property or reduce its value. [Loretto v. Teleprompter]) [353]

c. Diminution in value: The more drastic the reduction in value of the owner's property, the more likely a taking is to be found. But a very drastic diminution in value (almost certainly much more than 50%) is required. [353]

d. Landmark: Landmark preservation schemes, just like zoning and environmental regulations, will rarely be found to constitute a taking. This is especially true where the designation of a particular building to landmark status occurs as part of a comprehensive city-wide preservation scheme. (Example: New York City didn't carry out a taking when it designated Grand Central Station as a landmark; this was true even though this designation prevented the owner from constructing a 55-story office building above the Terminal. [Penn Central v. New York City]) [356]

e. "Rough proportionality" for give-backs: When a city conditions the owner's right to develop his property on some "give back" by the owner, there must be a "rough proportionality" between the burdens on the public that the development would bring about, and the benefits to the public from the give back. (Example: Owner wants to expand her store. City says, "You may do that, but only if you deed to the public a 15-foot strip of land to be used as a bike pathway." Held, this trade-off was an unconstitutional taking of Owner's property, because City didn't show that the public burdens from the extra traffic to Owner's bigger store were "roughly proportional" to the public benefits from the bike path. [Dolan v. City of Tigard]) [358 - 359]

III. THE "CONTRACT" CLAUSE

A. The "Contract" Clause: The so-called "Contract" Clause (Art. I, ?10) provides that "no state shall ... pass any ... law impairing the obligation of contracts." The clause effectively applies to both federal and state governments. The Clause has a different meaning depending on whether the government is impairing its own contracts or contracts between private parties. [360]

1. Public contracts: If the state is trying to escape from its own financial obligations, then the Court will closely scrutinize this attempt. Here, the state attempt to "weasel" will be struck down unless the modification is "reasonable and necessary to support an important public purpose" (basically middle-level review). [361]

2. Private contracts: But when the state is re-writing contracts made by private parties, the judicial review is not so stringent. Here, even a substantial modification to contracts between private parties will be allowed so long as the state is acting "reasonably" in pursuit of a "legitimate public purpose." So we apply what is basically "mere rationality" review in this situation. (Example: If a state's economy is in shambles with widespread home mortgage foreclosures, the state probably may temporarily order a lower interest rate on home mortgages, or impose a moratorium on mortgage repayments, without violating the Contract Clause.) [361 - 363]

a. Incidental effect on contracts: Even this "mere rationality" standard applies only where the state takes an action that is specifically directed at contractual obligations. If the state applies a "generally applicable rule of conduct" that has the incidental by-product of impairing contractual obligations, the Contract Clause does not apply at all. [364]

Example: Suppose Manco, a manufacturing company located outside the state of Texahoma, contracts with Disposal Corp., which operates a toxic waste disposal facility within Texahoma. The contract runs through the year 2000, and allows Manco to deliver up to 1,000 tons of toxic waste per year to the dump. The Texahoma legislature then enacts a statute that, effective immediately, prohibits anyone from disposing of any additional toxic wastes within the state. Even though this enactment has an effect on the Manco-Disposal contract, it does not trigger Contract Clause review at all, because the statute affects contracts as an incidental by-product, rather than being specifically directed at contractual obligations.

IV. EX POST FACTO LAWS

A. Constitutional prohibition: Article I prohibits both state and federal governments from passing any "ex post facto" law. An ex post facto law is a law which has a retroactive punitive effect. So government may not impose a punishment for conduct which, at the time it occurred, was not punishable. Also, government may not increase the punishment for an offense over what was on the books at the time of the act. [365]

Example: On June 1, Joe smokes a cigarette in a public building. On June 10, the state legislature makes it a crime, for the first time, to smoke in a public building. Because of the ban on ex post facto laws, Joe cannot be convicted of the June 1 smoking, since it was not a crime at the time he did it. The same would be true if the legislature on June 15 increased the penalty for such smoking over what it was on June 1.

1. Criminal only: The ban on ex post facto laws applies only to measures that are "criminal" or "penal," not to those that are civil. Basically, this means that only measures calling for imprisonment will come within the ex post facto ban (so a measure that imposes, say, disbarment, or one that imposes deportation, can be made retroactive, since these sanctions are civil). See, e.g., Galvan v. Press.

V. BILLS OF ATTAINDER

A. Generally: Art. I prohibits both the federal government and the states from passing any "bill of attainder." A bill of attainder is a legislative act which "applies either to named individuals or to easily ascertainable members of a group in such a way as to punish them without a judicial trial." (Example: Congress prohibits the payment of salaries to three named federal agency employees, on he grounds that they are engaged in subversive activities. This is an invalid bill of attainder, since it applies to named or easily-identified individuals, and punishes them without a judicial trial. [U.S. v. Lovett]) [367]


 

Chapter 12 and 13 
THE "STATE ACTION" REQUIREMENT; CONGRESS' ENFORCEMENT OF THE CIVIL WAR AMENDMENTS

I. STATE ACTION

A. State action generally: Virtually all of the rights and liberties guaranteed by the Constitution to individuals are protected only against interference by the government. We summarize this rule by referring to the requirement of "state action." But sometimes, even a private individual's act will be found to be "state action" that must comply with the Constitution. There are two main doctrines that may lead a private act to be classified as state action; if either of these doctrines applies, then the private action is "state action" even if the other doctrine would not apply. The two doctrines are the "public function" doctrine and the "state involvement" doctrine. [375 - 378]

B. "Public function" doctrine: Under the "public function" approach to state action, if a private individual (or group) is entrusted by the state to perform functions that are governmental in nature, the private individual becomes an agent of the state, and his acts constitute state action. [379 - 383]

1. Political system: The electoral process is a "public function," and is thus state action. Therefore, the carrying out of primary elections is state action, even if the acts are directly carried out by "private" political parties. (Example: A state convention of Democrats (in essence, a "private" political party) rules that only whites may vote in the Texas Democratic Primary. Held, this racial restriction is "state action", and therefore violates the 15th Amendment. The primary is an integral part of the election scheme, and the running of elections is traditionally a "public function", so the running of the primary is state action even though it is directly carried out by private groups. [Smith v. Allwright]) [379]

a. Company town: Similarly, operation of a "company town" is a "public function," and thus is state action, because towns are usually operated by the government. [379 - 381]

i. Shopping centers not a public function: But operation of a shopping center is not the equivalent of operating a company town, so a person does not have any First Amendment rights in the shopping center. [Hudgens v. NLRB] [380]

b. Parks: Operation of a park is usually deemed a governmental function, so generally the operation of a park will constitute "state action" under the "public function" doctrine. Therefore, even if the park is being operated by private persons, it must still obey constitutional constraints (e.g., it can't be operated for whites only). [Evans v. Newton]. [381]

2. The "exclusively public" requirement: Apparently, the function must be one that traditionally has been "exclusively" a public function, in order for the "public function" doctrine to apply. [381 - 383]

Example: A warehouseman has a warehouseman's lien on goods stored with him, to cover unpaid storage charges. He sells the goods pursuant to the warehouseman's lien, and the owner claims that due process was required because the resolution of disputes is a "public function". Held, the warehouseman's lien and sale was not a "public function" because the resolution of disputes between private individuals is not traditionally an "exclusively" governmental activity - for instance, the parties might have agreed to private arbitration. [Flagg Bros. v. Brooks]. [382]

C. "State involvement" doctrine: Even if the private individual is not doing something that's traditionally a "public function," his conduct may constitute state action if the state is heavily involved in his activities. This is the "state involvement" branch of state-action doctrine. Here are some of the ways in which the state and private actor can be so closely involved that the private person's acts become state action: [383]

1. Commandment: The state may become responsible for the private party's actions because it commanded, i.e., required, the private party to act in that way. (Example: The state enforces a private agreement among neighbors that none will sell his house to a black. Because the state has lent its state judicial enforcement mechanism to this otherwise private contract, the combination of enforcement and private discrimination violates equal protection. [Shelley v. Kraemer] [383 - 386]

2. Encouragement: If the state "encourages" the private party's actions, then the private action will be converted into state action. (Example: The voters of California amend their constitution toprohibit the state government from interfering with any private individual's right to discriminate when he sells or leases residential real estate. This amendment immediately results in the repeal of two state Fair Housing statutes. Held, this state-constitutional amendment amounts to governmental "encouragement" of private discrimination. Therefore, the resulting private discrimination will be imputed to the state, and the state constitutional provision violates the 14th Amendment. [Reitman v. Mulkey]) [386]

3. Symbiosis: There is state action if there exists between the state and private actor a "symbiotic" relationship, i.e., a relation between the two that is mutually beneficial. (Example: A Wilmington, Delaware city agency owns and runs a parking garage complex. The agency gives a 20 year lease to a privately-operated restaurant located in the complex. The restaurant refuses to serve African Americans. Held, African Americans who are refused service have had their equal protection rights violated. The relation between the restaurant and the publicly-run garage was so close and symbiotic - the garage wouldn't have been able to operate viably without rents from the restaurant - that the restaurant's actions must be imputed to the state, and therefore constitute state action. [Burton v. Wilmington Parking Authority]) [386 - 387]

4. Entanglement: State action may arise from the fact that the state is so "entangled" with a private actor that even though the state doesn't benefit from the private actor's conduct, the conduct will still be treated as state action. This is true where the state and the private party act together to carry out the action being challenged. [387 - 391]

Example 1: State law allows a creditor to tie up a debtor's property while the debt is being litigated; the procedure involves a writ of attachment issued by the court clerk and executed by the sheriff. Held, the entire attachment process works only because state officials actively participate, so the actions of the private party - the creditor - will be deemed to be state action.) [Lugar v. Edmondson Oil Co.] [389]

Example 2: A state allows a private litigant - either a civil litigant or a defendant in a criminal case - to use peremptory challenges to exclude jurors on racial grounds. This conduct constitutes state action, and therefore violates the Equal Protection Clause. [Edmondson v. Leesville Concrete Co.; Georgia v. McCollum] [389]

a. Mere acquiescence not enough: But if the state merely acquiesces in the private party's discrimination, this won't be enough of a state involvement to convert the private actor's conduct into state action. [390]

Example: The state regulates all utilities. A private utility cuts off plaintiff's service without notice or a hearing, and this fact is known to the state, which does not object. Held, the utility's conduct was not state action, because the state merely acquiesced in that conduct, rather than actively participating in it. [Jackson v. Metropolitan Edison Co.]

b. Licensing: Similarly, the fact that the state has licensed a private person is generally not enough to convert the private person's conduct into state action. [387 - 388]

Example: A private club refuses to serve African Americans. Even though the state has given the club one of a limited number of liquor licenses, this act of licensing is not enough to turn the club's action into state action. [Moose Lodge v. Irvis]

II. CONGRESSIONAL ENFORCEMENT OF CIVIL RIGHTS

A. Congressional enforcement of civil rights: Congress has special powers to enforce the post-Civil War amendments, i.e., the Thirteenth, Fourteenth, and Fifteenth Amendments. [396 - 398]

1. 13th Amendment: The Thirteenth Amendment abolishes "slavery" and "involuntary servitude."

2. 14th Amendment: The Fourteenth Amendment requires the states to give "due process," "equal protection," and "privileges and immunities."

3. 15th Amendment: The Fifteenth Amendment bars the states from denying voting rights on the basis of race, color or previous condition of servitude.

B. Congress' power to reach private conduct: The special enforcement powers let Congress reach a lot of private conduct that it could not reach by means of any other congressional power. [398 - 404]

1. 14th and 15th Amendments: When Congress enforces the Fourteenth and Fifteenth Amendments, it has some, but not unlimited, power to reach private conduct. So Congress could, for instance, make it a crime for somebody to interfere with a state official who is trying to guarantee another person's equal protection rights or voting rights. (Example: Congress can make it a crime for D to prevent a school principal from allowing African Americans to enroll in an all white school.) [398 - 401]

a. Can't reach purely private discrimination: But Congress under the Fourteenth Amendment cannot simply make it a crime for one private person to practice ordinary racial discrimination against another. [398] (Congress would instead have to use its power to regulate interstate commerce; this is the basis on which the 1964 Civil Rights Act, forbidding racial discrimination in places of public accommodation, was upheld. [Katzenbach v. McClung])

2. 13th Amendment: But the 13th Amendment is different. ?1 of the 13th Amendment provides that "neither slavery nor involuntary servitude, except as a punishment for crime ... shall exist within the United States." ?2 gives Congress the power to "enforce this [amendment] by appropriate legislation." The 13th Amendment, unlike the 14th and 15th, is not explicitly limited to governmental action. Indeed, that's the most important thing to remember about the 13th Amendment, and its principal use today - it's practically the only clause in the entire Constitution that prevents one private citizen from doing something to another. So the 13th Amendment gives Congress important authority to reach certain private conduct that it couldn't reach through the 14th and 15th Amendments. [401 - 403]

a. "Badges of slavery": If the 13th Amendment only meant that Congress could take special action to ensure that slavery itself, in its most literal sense, shall be wiped out, the Amendment wouldn't be of much practical use today. But instead, the Supreme Court has held that the Amendment allows Congress also to stamp out the "badges and incidents" of slavery. In fact, Congress has the power to determine what the "badges and incidents of slavery" are, so long as it acts rationally - once Congress defines these "badges and incidents", it can then forbid them. [402 - 403]

Example: In 1866, Congress passes a statute, 42 U.S.C. ?1982, which provides that "all citizens of the United States shall have the same right, in every state and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property." In a modern case, the Ps argue that the statute prevents D (a private developer) from refusing to sell them a house solely because they are African American.

Held, this statute applies to block discrimination by D, a private citizen. Furthermore, the statute is constitutional under the 13th Amendment. ?2 of the 13th Amendment, which gives Congress enforcement powers under that amendment, gives Congress the power to make a rational determination of what the badges and incidents of slavery are. Here, Congress could have rationally concluded that barriers to enjoyment of real estate, and discrimination in housing, are relics of slavery. [Jones v. Alfred H. Mayer Co.] [402 - 403]

b. Ancestry, ethnic discrimination: As we've just seen, the 13th Amendment clearly lets Congress prevent private discrimination against African Americans, on the grounds that it's a "badge or incident" of slavery. All other racial minorities are also protected - Congress could probably even bar private racial discrimination against whites based on the 13th Amendment (though the Court has never explicitly decided this). But it's not clear whether private discrimination based on non-racial grounds (e.g., ancestry, ethnic background, religion, sex, etc.) can be barred by Congress acting pursuant to the 13th Amendment. [402]

c. Must have statute: The application of the 13th Amendment to a broad range of "badges and incidents of slavery" applies only where Congress has used its enforcement powers by passing a statute that relies on the Amendment. If private citizen A discriminates against B on the basis of race, but the type of discrimination is not one that Congress has outlawed, then the 13th Amendment's "naked" or "self-executing" scope won't be enough to reach that discrimination. Probably actual peonage - the keeping of a person as a slave - is the only type of private racial discrimination that is directly barred by the 13th Amendment in the absence of a congressional statute. [403]

C. Congressional power to modify constitutional rights, or to prevent constitutional violations: Congress does not have the power to redefine the scope of the rights protected by the Civil War amendments in a way that is different from the way the Supreme Court would define their scope. [407]

1. No power to redefine scope: This is true whether Congress is trying to expand or contract the right. [407 - 409]

Example: The Supreme Court issues a decision defining the First Amendment Establishment Clause more narrowly than the Court had previously defined that clause. Congress doesn't like this decision. It therefore passes the "Religious Freedom Restoration Act," which in effect says that all state and local governments must refrain from any action that would have violated the Establishment Clause under the earlier, now-overruled, cases. Held, Congress has no power to either expand or contract the scope of constitutional rights, so the Act is an unconstitutional exercise of Congressional power. [City of Boerne v. Flores]

2. Remedial powers: Because Congress has the power to "enforce" the Civil War amendments, it may prohibit certain actions that don't directly violate these amendments, if it reasonably believes that these actions would lead to violations of the amendments. That is, Congress has broad "remedial" powers. [405]

Example: Congress may use its 15th Amendment remedial powers to ban voter literacy tests in states with a history of voting rights violations, even though such tests aren't necessarily unconstitutional. This is so because Congress reasonably fears that such tests may lead to violations of the 15th Amendment. [South Carolina v. Katzenbach]

a. "Congruent and proportional": But when Congress purports to use its remedial powers to redress or prevent a constitutional violation, Congress' action has to be "proportional and congruent" to the threatened violation. If not, the Congressional action is invalid. [City of Boerne v. Flores] [409]

Example: Congress makes the states, when they act as employers, obey the same age-discrimination rules as private employers. Congress says that it's doing this under authority of its 14th Amendment ?5 remedial powers, to prevent violations by the states of older employees' equal protection rights. Held, Congress went beyond the scope of its ?5 remedial powers, because there was no evidence that the states routinely violated older workers' equal protection rights. Therefore, Congress' regulation was not a "congruent and proportional" response to any threatened constitutional violations. [Kimel v. Fla. Bd. of Regents]


 

Chapter 14 
FREEDOM OF EXPRESSION

I. GENERAL THEMES

A. Text of First Amendment: The First Amendment provides, in part, that "Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." [417]

1. Related rights: There are thus several distinct rights which may be grouped under the category "freedom of expression": freedom of speech, of the press, of assembly, and of petition. Additionally, there is a well-recognized "freedom of association" which, although it is not specifically mentioned in the First Amendment, is derived from individuals' rights of speech and assembly.

B. Two broad classes: Whenever you consider governmental action that seems to infringe upon the freedom of expression, there's one key question that you must always ask before you ask anything else. That question is, "Is this governmental action 'content-based' or 'content-neutral'?" If the action is "content-based," the government's action will generally be subjected to strict scrutiny, and the action will rarely be sustained. On the other hand, if the action is "content-neutral", the government's action is subjected to a much less demanding standard, and is thus much more likely to be upheld. [417 - 419]

1. Classifying: A governmental action that burdens a person's expression is "content-based" if the government is aiming at the "communicative impact" of the expression. By contrast, if the government is aiming at something other than the communicative impact of the expression, the government action is "content-neutral", even though it may have the effect of burdening the expression.

Example 1 (content-based): Virginia forbids pharmacists to advertise the prices of prescription drugs, because it's afraid that the public will buy drugs at the lowest available price and will therefore receive low-quality goods and services. This government ban is "content-based", since the speech is being regulated because of the government's fears about how consumers will respond to its communicative impact. Therefore, the government's ban will be strictly scrutinized, and is in fact violative of the First Amendment. [Virginia Pharmacy Bd. v. Virginia Consumer Council] [419]

Example 2 (content-neutral): A city forbids the distribution of all leaflets, because it wishes to prevent littering. This ban is "content neutral" - the government is banning all leaflets, regardless of their content, and the harm sought to be avoided (littering) would exist to the same extent regardless of the message in the leaflets. Therefore, the government action is subject to less rigid review - more or less "intermediate level review" (though it was still struck down on these facts.) [Schneider v. State] [419]

a. Tip: Here's a tip to help you decide whether a given governmental action is content-based or not: would the harm the government is trying to prevent exist to the same degree if the listeners/readers didn't understand English? If the answer is "no," the action is probably content-based.

Example: Suppose a consumer in the prescription-drug case above didn't speak English. He wouldn't suffer the harm the state was trying to prevent - being induced to buy bad drugs or bad service for a cheap price - even if he saw or read the advertising, so it's clearly the content of the communication that the state is objecting to. But in the case of the ban on littering, even a whole city of non-English-speakers would suffer the same harm - littered streets - so the ban is content-neutral.

b. Motive counts: When a court decides whether a regulation is content-based or content-neutral, motives count for everything - the question is what the state really intends to do. If the court believes that the state intends to inhibit certain speech because of its message, the court will treat the statute as content-based (and strictly scrutinize it) even though it is neutral on its face.

C. Analysis of content-based government action: Once we've determined that a particular government action impairing expression is "content-based", we then have to determine whether the expression falls within a category that is protected by the First Amendment.

1. Unprotected category: If the speech falls into certain pre-defined unprotected categories, then the government can basically ban that expression completely based on its content, without any interference at all from the First Amendment. [422]

a. Listing: The main "unprotected" categories are: (1) obscenity; (2) fraudulent misrepresentation; (3) defamation; (4) advocacy of imminent lawless behavior; and (5) "fighting words".

b. Not totally unprotected: But even speech falling within an "unprotected category" receives one small First Amendment protection: government must regulate in a basically content-neutral way. (Example: The state may ban all "fighting words." But it may not choose to ban just those fighting words directed at the listener's race, religion, or other enumerated traits. [R.A.V. v. City of St. Paul])

2. Protected category: All expression not falling into one of these five pre-defined categories is "protected". If expression is protected, then any government ban or restriction on it based on its content will be presumed to be unconstitutional. The Court will subject any content-based regulation of protected speech to strict scrutiny - the regulation will be sustained only if it (1) serves a compelling governmental objective; and (2) is "necessary," i.e., drawn as narrowly as possible to achieve that objective (since a broader-than-needed restriction wouldn't be a "necessary" means.) [420 - 422]

Example: A District of Columbia statute bans the display of any sign within 500 feet of a foreign embassy, if the sign would bring the foreign government into "public disrepute". Held, this regulation is content-based, since a sign is prohibited or not prohibited based on what the sign says. Therefore, the regulation must be strictly scrutinized, and cannot be upheld. Even if the government's interest in protecting the dignity of foreign diplomats is compelling - which it may or may not be - the statute is not "necessary" to achieve that interest, since a narrower statute that only banned the intimidation, coercion or threatening of diplomats would do the trick. [Boos v. Barry]. [422]

a. Religious speech gets equal protection: The requirement of content-neutrality is now so strong that it seems to take precedence over the Establishment Clause (which protects separation of church and state). Thus if the government allows private speech in a particular forum, it may not treat religiously-oriented speech less favorably than non-religiously-oriented speech.

Example: If a public university gives funding for student publications on various topics, the requirement of content-neutrality means that the university must give the same funding to a student publication whose mission is to proselytize for Christianity. [Rosenberger v. Univ. of Virginia.]

D. Analyzing content-neutral regulations: Now, let's go back to the beginning, and assume that the government restriction is content-neutral.

1. Three-part test: Here, we have a three-part test that the government must satisfy before its regulation will be sustained if that regulation substantially impairs expression [426 - 427]:

a. Significant governmental interest: First, the regulation must serve a significant governmental interest.

b. Narrowly tailored: Second, the regulation must be narrowly tailored to serve that governmental interest. So if there's a somewhat less restrictive way to accomplish the same result, the government must use that less-intrusive way. (Example: Preventing littering is a significant governmental interest. But the government can't completely ban the distribution of handbills to avoid littering, because the littering problem could be solved by the less restrictive method of simply punishing those who drop a handbill on the street. [Schneider v. State])

c. Alternative channels: Finally, the state must "leave open alternative channels" for communicating the information. (Example: Suppose a city wants to ban all billboards. If a political advertiser can show that there's no other low-cost way to get his message across to local motorists, this billboard ban might run afoul of the "alternative channels" requirement.)

2. Mid-level review: This three-part test basically boils down to mid-level review for content-neutral restrictions that significantly impair expression (as opposed to strict scrutiny for content-based restrictions).

E. Overbreadth: The doctrine of overbreadth is very important in determining whether a governmental regulation of speech violates the First Amendment. A statute is "overbroad" if it bans speech which could constitutionally be forbidden but also bans speech which is protected by the First Amendment. [439 - 442]

1. Standing: To see why the overbreadth doctrine is important, let's first consider how a litigant attacks the constitutionality of a statute outside the First Amendment area. Here, the litigant can only get a statute declared unconstitutional if he can show that it's unconstitutional in its application to him. But the overbreadth doctrine lets a litigant prevail if he can show that the statute, applied according to its terms,would violate the First Amendment rights of persons not now before the court. So overbreadth is really an exception to the usual rule of "standing" - under the usual standing rules, a person is not normally allowed to assert the constitutional rights of others, only his own.

2. "Substantial" overbreadth: In cases where the statute is aimed at conduct that has expressive content (rather than aimed against pure speech), the overbreadth doctrine will only be applied if the overbreadth would be "substantial". In other words, the potential unconstitutional applications of the statute must be reasonably numerous compared with the constitutional applications. [440 - 442]

F. Vagueness: There is a second important First Amendment doctrine: vagueness. A statute is unconstitutionally vague if the conduct forbidden by it is so unclearly defined that a reasonable person would have to guess at its meaning. [442]

1. Distinguish from overbreadth: Be careful to distinguish vagueness from overbreadth: they both leave the citizen uncertain about which applications of a statute may constitutionally be imposed. But in overbreadth, the uncertainty is hidden or "latent," and in vagueness the uncertainty is easily apparent. [442]

Example: Statute I prohibits anyone from "burning a U.S. flag as a symbol of opposition to organized government." Statute II prohibits anyone from "burning a U.S. flag for any purpose whatsoever." Statute I is probably unconstitutionally vague, because there's no way to tell what the statute means by "symbols of opposition to organized government." Statute II is unconstitutionally overbroad - it's obviously not vague, since it's perfectly clear that it bans all flag burning. But since by its terms it appears to apply to constitutionally-protected conduct (e.g., burning that's intended as a political expression), and since there's no easy way to separate out the constitutional from unconstitutional applications, it's overbroad.

II. ADVOCACY OF ILLEGAL CONDUCT

A. Advocacy of illegal conduct: Remember that one of our "unprotected categories" is the advocacy of imminent illegal conduct. The government can ban speech that advocates crime or the use of force if (but only if) it shows that two requirements are met [427 - 439]:

1. Intent: The advocacy must be intended to incite or produce "imminent lawless action"; and

2. Likelihood: The advocacy must in fact be likely to incite or produce that imminent lawless action.

III. TIME, PLACE AND MANNER REGULATIONS

A. Time, place and manner generally: Let's now focus on regulations covering the "time, place and manner" of expression. This is probably the area of Freedom of Expression on which you are most likely to be tested, since tese kinds of regulations are quite often found in real life. When we give you the rules for analyzing "time, place and manner" restrictions below, assume that the speech that is being restricted is taking place in a public forum. (If it's not, then the government has a somewhat easier time of getting its regulation sustained; we'll be talking about these non-public forum situations later.) [447]

1. Three-part test: A "time, place and manner" regulation of public-forum speech has to pass a three-part test to avoid being a violation of the First Amendment [448]:

a. Content-neutral: First, it has to be content-neutral. In other words, the government can't really be trying to regulate content under the guise of regulating "time, place and manner".

Example: City enacts an ordinance allowing parades or demonstrations "to protest governmental policies" to be conducted only between 10 a.m. and 4 p.m. No such restrictions are placed on other kinds of parades or demonstrations. Even though this restriction is ostensibly merely a "time, place and manner" restriction, it violates the requirement of content-neutrality, because the restriction applies to some expressive conduct but not others, based on the content of the speech.

b. Narrowly tailored for significant governmental interest: Second, it's got to be narrowly tailored to serve a significant governmental interest. (We saw this above when we were talking more generally about the analysis of all content-neutral restrictions on speech.) This basically means that not only must the government be pursuing an important interest, but there must not be some significantly less intrusive way that government could achieve its objective.

Example: Suppose the government wants to prevent littering on the streets. Even though prevention of littering is an important governmental objective, the government may not simply ban all distribution of handbills, because there is a significantly less restrictive means of achieving this objective - a direct ban on littering - so the ban on handbills is not "narrowly tailored" to achieving the anti-littering objective.)

c. Alternative channels: Finally, the state must "leave open alternative channels" for communicating the information.

Example: City is a medium-sized city, with six public parks and many streets. City enacts an ordinance stating that any parade or demonstration, no matter what the content of the message, shall take place only in Central Park or on Main Street. City argues that its limited budget for police security, and the greater ease of handling crowds in these two places than in other places, justify the ordinance. Even though this time, place and manner restriction is apparently content-neutral and is arguably narrowly tailored for a significant governmental interest, it probably violates the "leave open alternative channels" requirement because it puts off limits for parades and demonstrations the vast majority of locations within City.

2. Application to conduct: These rules on when the state may regulate the "time, place and manner" of expression apply where what is being regulated is pure speech. But much more importantly, these rules apply where the state is regulating "conduct" that has an expressive component. So the state can never defend on the grounds that "We're not regulating speech, we're just regulating conduct." [449 - 450]

Example: It's "conduct" to hand out handbills, or to form a crowd that marches down the street as part of a political demonstration. But since both of these activities have a major expressive component, the state cannot restrict the conduct unless its satisfies the three-part test described above, i.e., the restriction is content neutral, it's narrowly tailored to achieve a significant governmental interest, and it leaves open alternative channels.

3. "Facial" vs. "as applied": A "time, place and manner" regulation, like any other regulation impinging upon First Amendment rights, may be attacked as being either "facially" invalid or invalid "as applied." Thus even a time, place and manner restriction that has been very carefully worded to as to satisfy all three requirements listed above may become unconstitutional as applied to a particular plaintiff. [453]

Example: A City ordinance provides that any parade or demonstration participated in by more than five people shall be held only after the purchase of a permit, which shall be issued by the City Manager for free to any applicant upon two days notice. The City Manager normally issues such permits without inquiring into the nature of the demonstration planned by the applicant. P, who is known locally as an agitator who opposes the current city government, applies for a permit. The City Manager denies the permit, saying, "I don't like the rabble rousing you've been doing." Even though the ordinance on its face is probably a valid time, place and manner restriction, the application of the ordinance to P's own permit request violates P's First Amendment rights, because that application is not being carried out in a content-neutral manner.

B. Licensing: Be especially skeptical of governmental attempts to require a license or permit before expressive conduct takes place. [451 - 454]

1. Content-neutral: Obviously, any permit requirement must be applied in a content-neutral way. (Example: Local officials give permits for speeches made for purposes of raising money for non-controversial charities, but decline to give permits for demonstrations to protest the racism of local officials. The requirement of content neutrality in the licensing scheme is not being satisfied, and the scheme will be automatically struck down.) [451]

2. No excess discretion: Also, the licensing scheme must et forth the grounds for denying a permit narrowly and specifically, so that the discretion of local officials will be curtailed. (Example: A municipal ordinance cannot require a permit for every newspaper vending machine where the permit is to be granted on "terms and conditions deemed necessary by the mayor" - the grounds for denying a permit must be set forth much more specifically, to curb the official's discretion. [Lakewood v. Plain Dealer Publ. Co.]) [452]

3. Reasonable means of maintaining order: But if these two requirements - content-neutral application and limited administrative discretion - are satisfied, the permit requirement will be upheld if it is a reasonable means of ensuring that public order is maintained. [453]

Example: A requirement that a permit be obtained before a large group of people may march would probably be upheld as a reasonable way of maintaining order, if the requirement is applied in a content-neutral way and is drafted so as to apply without exception to all large marches.

4. Right to ignore requirement: Assuming that a permit requirement is unconstitutional, must the speaker apply, be rejected, and then sue? Or may he simply speak without the permit, and then raise the unconstitutionality as a defense to a criminal charge for violating the permit requirement? The answer depends on whether the permit is unconstitutional on its face or merely as applied. [453 - 454]

a. Facially invalid: If the permit requirement is unconstitutional on its face, the speaker is not required to apply for a permit. He may decline to apply, speak, and then defend (and avoid conviction) on the grounds of the permit requirement's unconstitutionality.

b. As applied: But where the permit requirement is not facially invalid, but only unconstitutional as applied to the speaker, the speaker generally does not have the right to ignore the requirement - he must apply for the permit and then seek prompt judicial review, rather than speaking and raising the unconstitutionality-as-applied as a defense. (However, an exception to this rule exists where the applicant shows that sufficiently prompt judicial review of the denial was not available. )

C. Right to be left alone: People have no strong right to be left alone, and the government therefore can't regulate broadly to protect that right. As a general rule, it's up to the unwilling listener (or viewer) to avoid the undesired expression. [454]

Example: A city can't make it a misdemeanor to walk up and down the street handing advertising brochures to people without the recipient's express consent. (It's up to the recipient to decline the handbill).

1. Captive audience: But if the audience is "captive" (unable to avert their eyes and ears), this makes it more likely that a fair degree of content-neutral regulation will be allowed. (However, the fact that the audience is captive is just one factor in measuring the strength of the sate interest in regulating.) [455]

Example: A state may make it a crime to approach close to a woman who is entering an abortion clinic, if the approacher's purpose is to orally "counsel or educate" the woman and the woman does not consent to the approach. [Hill v. Colorado].

D. Canvassing: A speaker's right to canvass, that is, to go around ringing doorbells or giving out handbills, receives substantial protection. [457 - 459]

1. Homeowner can say "no": The individual listener (e.g., the homeowner), is always free to say, "No, I don't want to speak to you about becoming (say), a Jehovah's Witness." The city can then make it a crime for the speaker to persist.

2. City can't give blanket prohibition: But the government cannot say "No" in advance on behalf of its homeowners or other listeners. [457]

Example: A city passes an ordinance providing that "All doorbell ringing for the purpose of handing out handbills is hereby forbidden." Held, such an ordinance violates the First Amendment, even if (as the city claims) it is a content-neutral ordinance designed to protect unwilling listeners, such as those who work nights and sleep days. The most the city can do is to provide that once the individual homeowner makes it clear he doesn't want to be spoken to, the speaker must honor that request. [Martin v. Struthers]

3. Time, place & manner: But the authorities may impose "time, place & manner" limits on canvassing, if these limits: (1) are content-neutral; (2) serve a significant governmental interest; and (3) leave open adequate other channels for communication. (Example: A town might prohibit canvassing after 6:00 PM, if its policy is truly content-neutral (e.g., it wasn't enacted for the purpose of silencing Jehovah's Witnesses), is enacted to protect homeowners' night-time tranquility, and allows solicitation to take place at other times.)

E. Fighting words: One of our other "unprotected categories" consists of "fighting words." "Fighting words" are words which are likely to make the person to whom they are addressed commit an act of violence, probably against the speaker. Expression that falls within the "fighting words" category can be flatly banned or punished by the state. [Chaplinsky v. New Hampshire] [459 - 461]

Example: D picks out one member of his audience and calls him a liar, racist and crook. D can be arrested for this speech, because thee are words which might well provoke a reasonable person to whom they are addressed into physically attacking D.)

1. Limits: But the "fighting words" doctrine is tightly limited:

a. Anger not enough: It's not enough that the speaker has made the crowd angry; they must be so angry that they are likely to fight. [460]

b. Crowd control: The police must control the angry crowd instead of arresting the speaker if they've got the physical ability to do so. (In other words, the police can't grant the hostile crowd a "heckler's veto.") [460]

c. Dislike of speaker's identity: The doctrine doesn't apply where it's the mere identity or lawful acts of the speaker, rather than his threatening words, that moves the crowd to anger. (Example: If D is a black civil rights worker speaking in a small southern town with a history of racial violence, the fact that members of the audience are ready to attack D because they hate all black civil rights activists will not suffice to make D's speech "fighting words" - here the anger is not really coming from the speaker's particular threatening words, but from his identity and his lawful advocacy of change.) [461]

F. Offensive language: Language that is "offensive" is nonetheless protected by the First Amendment. [462 - 465]

1. Profanity: This means that even language that is profane may not be banned from public places. (Example: D wears a jacket saying "Fuck the Draft" in the L.A. County Courthouse. D cannot be convicted for breaching the peace. The state may not ban language merely because it is "offensive," even if profane. [Cohen v. Cal.]) [462 - 464]

a. Sexually-oriented non-obscene language: This protection of "offensive" material also means that messages or images that are sexually-oriented but not obscene are, similarly, protected.

Example: Congress bans the use of the Internet to display any "indecent" language or images which may be accessed by minors. Held, this statute is unconstitutional, because it restricts the First Amendment rights of adults to receive indecent-but-not-obscene material. [Reno v. ACLU] [479]

2. Racial or religious hatred: Similarly, this means that messages preaching racial or religious hatred are rotected (at least if they don't incite imminent violence or come within the "fighting words" doctrine). (Example: A member of the American Nazi Party tells a predominantly-Jewish audience, "Jews are the scum of the earth and should be eliminated." D cannot be punished for, or even restricted from, saying these words.) [464 - 465]

3. Limits: But offensive language can be prohibited or punished if: (1) the audience is a "captive" one (e.g., the speech occurs on a city bus or subway); or (2) the language is "obscene," under the formal legal definition of this term (lewd and without socially redeeming value).

G. Regulation of "hate speech": Government efforts to regulate "hate speech" - for instance, speech attacking racial minorities, women, homosexuals, or other traditionally disfavored groups - are likely to run afoul of the First Amendment for being content-based. [466 - 472]

1. No content-based regulation: The government may choose to ban all hate speech. But government may not select certain hateful messages based upon their target or their narrow content, because such selection triggers the strict scrutiny reserved for content-based regulations. This is true even if government is trying to regulate only "fighting words," which as noted above form an unprotected category. [466 - 467]

Example: St. Paul, Minnesota, makes it a crime to "place on public or private property a symbol ? characterization or graffiti [including a burning cross or Nazi swastika] which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender...." D is prosecuted for having burned a homemade cross inside the fenced yard of a black family, in the middle of the night.

Held, D cannot be convicted, because the ordinance on its face violates the First Amendment. Even though the ordinance has been construed by the state court to reach only "fighting words," the city may not choose which fighting words to prohibit based on their content. So the city may ban all fighting words, but not just those motivated by, say, racial or religious bias. [R.A.V. v. City of St. Paul]

a. Penalty-enhancement statutes allowed: But government may attack bias by a "penalty enhancement" approach, under which existing crimes like assault, vandalism or arson are punished more severely if the prosecution shows that the crime was motivated in part by one of a listed set of biases. (Example: If the sentence for assault is ordinarily 2 years, a state may raise it to 7 years where D picks his victim based on the victim's race. [Wisconsin v. Mitchell]) [469]

H. Injunctions against expressive conduct: Where the restriction on expression is in the form of an injunction issued by a judge, there is a special standard of review. When a court issues an injunction that serves as a kind of "time, place and manner" restriction, the injunction will be subjected to slightly more stringent review than would a generally-applicable statute or regulation with the same substance: the injunction must "burden no more speech than necessary to serve a significant governmental interest." [Madsen v. Women's Health Center, Inc.] [472]

I. The public forum: Let's turn now to the concept of the "public forum." [482 - 493]

1. Rules: Here are the rules concerning when the fact that speech occurs in a public forum makes a difference, and how: [482]

a. Content-based: If a regulation is content-based, it makes no difference whether the expression is or is not in a public forum: strict scrutiny will be given to the regulation, and it will almost never be upheld.

b. Neutral "time, place & manner": It's where a regulation is content-neutral that the existence of a public forum makes a difference; especially regulations on "time, place & manner" are less likely to be upheld where the expression takes place in a public forum. [482]

i. Non-public forum: When expression takes place in a non-public forum, the regulation merely has to be rationally related to some legitimate governmental objective, as long as equally effective alternative channels for the expression are available.

ii. Public forum: When the expression takes place in a public forum, by contrast, the regulation has to be narrowly drawn to achieve a significant governmental interest (roughly intermediate-level review). It is necessary, but not sufficient, that the government also leaves alternative channels available. [482]

Example 1 (public forum speech): A city says, "No political campaign messages may be presented in handbills distributed on city streets." Since this rule impairs communications in a public forum (city streets), the city will have to show that its ordinance is necessary to achieve a significant governmental interest, which it probably can't do (anti-littering won't be enough, for instance). The city can't say, "Well, TV or radio ads will let the same message be given" - the existence of alternative channels for the communication is necessary, but is not enough, when the expression takes place in a public forum.

Example 2 (non-public forum speech): A city says, "No political campaign messages may be displayed on privately-owned bilboards, even with the consent of the owner." Here, no public forum is involved. Therefore, as long as adequate alternative channels are available (which they probably are, e.g., radio & TV ads), the city only has to show that its regulation is rationally related to some legitimate governmental objective. The city can probably meet this burden (e.g., by pointing to the objective of beautifying the city.)

2. What are public forums: What places, then, are public forums?

a. "True" or "traditional" public forums: First, there are "true" or "traditional" public forums. These are areas that are public forums by custom and tradition, not by virtue of any particular government policy. The classic examples are: (1) streets; (2) sidewalks; and (3) parks. [485]

b. "Designated" public forums: There's a second type of public forum: places that the government has decided to open up to a broad range of expressive conduct.

Some possible Examples:

• places where government meetings take place that the government has decided to open to the public at large (e.g., a school board meeting held in a school auditorium);

places that government has decided may be used by a broad range of people or groups (e.g., school classrooms after hours, under a policy that lets pretty much any group use them, or a municipal theater that any group may rent).

These are called "designated" public forums. [485]

i. Same rules: The same rules apply to designated public forums as apply to true public forums, except that government can change its mind and remove the designation (in which case the place becomes a non-public forum that can be subjected to much broader viewpoint-neutral regulation, as described below).

c. Non-public-forums: Still other public places are not at all associated with expression traditionally, so they can be treated as non-public forums. Here, the government regulation just has to be rationally related to some legitimate governmental objective, as long as the interference with speech is not "substantial." And if alternative channels are available, then this fact alone usually makes the interference "insubstantial." So we basically use "mere rationality" review for content-neutral "time, place & manner" regulations of non-public-forum expression that leave open alternative channels of communication. [486 - 493]

i. All expression banned: Often, even a regulation that completely bans expression in a particular non-public forum will be found to satisfy this "mere rationality" test. Or, the government can choose to forbid discussion of certain subjects (but not certain viewpoints). (Example: A publicly-owned airport terminal is not a public forum. Therefore, the government may ban face-to-face solicitation of funds in the terminal, because such a ban is rationally related to the legitimate governmental objectives of reducing congestion and combating fraud. (However, a total ban even on literature distribution will not be upheld, because this ban does not even satisfy the "mere rationality" standard.) [Int'l Soc. for Krishna Consciousness v. Lee])

ii. Illustrations of non-public-forums: Here are some illustrations of facilities that, even though they are owned by the government, are not public forums: airport terminals, jails, military bases, the insides of courthouses, school classrooms used after hours by certain groups (but not if government has made the rooms available to practically all comers, because then it's a designated public forum), and governmental office buildings. [489 - 493]

J. Access to private property: In general, a speaker does not have any First Amendment right of access to another person's private property to deliver his message. Most significantly, a person does not have a First Amendment right to speak in shopping centers. [Hudgens v. NLRB] (Example: State trespass laws may be used to prevent a person from conducting an anti-war demonstration or a religious proselytizing campaign at her local privately-owned shopping center.) [493 - 496]

IV. REGULATION OF SYMBOLIC EXPRESSION

A. Symbolic expression: Let's consider "symbolic expression," i.e., expression that consists solely of non-verbal actions. [496 - 503]

1. Standard: We use essentially the same rules to analyze restrictions on symbolic expression as we do for restrictions that apply to verbal speech, or to verbal speech coupled with conduct. Thus: (1) any attempt by government to restrict symbolic expression because of the content of the message will be strictly scrutinized and almost certainly struck down; (2) any restriction on the time, place or manner of symbolic expression will have to be narrowly tailored to a significant governmental objective and will have to leave open alternative channels. [496]

Example: The Ds (high school students) wear armbands to school, in the face of a school policy forbidding students from wearing such armbands. Because school officials were motivated by a desire to suppress particular messages - anti-war messages - the ban must be strictly scrutinized, and is struck down. [Tinker v. Des Moines Schl. Dist.] [498]

2. Flag desecration: The most interesting example of government regulation of symbolic expression is flag desecration statutes. The main thing to remember is that if a statute bans flag desecration or mutilation, and either on the statute's face or as it is applied, the statute is directed only at particular messages, it will be invalid. (Examples: Both the Texas and federal flag burning statutes have been struck down by the Supreme Court. In the case of the federal statute, the Court concluded that Congress was trying to preserve the flag as a "symbol of national unity." The statute was therefore content-based, so the Court struck it down. [U.S. v. Eichman]) [503]

V. DEFAMATION AND INVASION OF PRIVACY

A. Defamation: The First Amendment places limits on the extent to which a plaintiff may recover tort damages for defamation. [510]

1. New York Times v. Sullivan test: Most importantly, under the rule of New York Times v. Sullivan, 376 U.S. 254 (1964), where P is a public official, he may only win a defamation suit against D for a statement relating to P's official conduct if P can prove that D's statement was made either "with knowledge that it was false" or with "reckless disregard" of whether it was true or false. These two mental states are usually collectively referred to as the "actual malice" requirement. [511 - 513]

Example: The New York Times runs an ad saying that P - the Montgomery, Alabama police commissioner - has terrorized Dr. Martin Luther King by repeatedly arresting him. Even if these statements are false, P cannot recover for libel unless he can show that the Times knew its statements were false or acted with reckless disregard of whether the statements were true or false. [N.Y. Times v. Sullivan, supra].

2. Public figures: This rule of New York Times v. Sullivan - that P can only recover for defamation if he shows intentional falsity or recklessness about truth - applies not only to public "officials" but also to public "figures". Thus a well known college football coach, and a prominent retired Army general, were public figures who had to show that the defendant acted with actual malice. [Assoc. Press v. Walker] [512]

a. Partial public figure: Someone who voluntarily injects himself into a public controversy will be a public figure for just that controversy - thus an anti-abortion activist might be a public figure for any news story concerning abortion, but not for stories about, say, his private life unrelated to abortion.

b. Involuntary public figure: Also, some people may be "involuntary" public figures. (Example: A criminal defendant is an involuntary public figure, so he cannot sue or recover for a news report about his crime or trial unless he shows actual malice).

3. Private figure: If the plaintiff is a "private" (rather than "public") figure, he does not have to meet the New York Times v. Sullivan "actual malice" rule. [Gertz v. Robert Welch, Inc.]. On the other hand, the First Amendment requires that he show at least negligence by the defendant - the states may not impose strict liability for defamation, even for a private-figure plaintiff. Id. [513 - 514]

a. No punitive damages: Also, a private-figure plaintiff who shows only negligence cannot recover punitive damages - he must show actual malice to get punitive damages. Id.

B. Intentional infliction of emotional distress: The New York Times v. Sullivan rule applies to actions for intentional infliction of emotional distress as well as ones for defamation. Thus a public-figure plaintiff cannot recover for any intentional infliction of emotional distress unless he shows that the defendant acted with actual malice. (Example: Hustler Magazine satirizes religious leader Jerry Falwell as a drunken hypocrite who has sex with his mother. Held, Falwell cannot recover for intentional infliction of emotional distress unless he shows that Hustler made a false statement with knowledge of falsity or with reckless disregard of falsity. [Hustler Magazine v. Falwell]) [516]

C. Falsity: The First Amendment also probably requires that the plaintiff (whether or not she is a public figure) must show that the statement was false. [516]

VI. OBSCENITY

A. Obscenity: Another of our "unprotected categories" is obscenity. Expression that is obscene is simply unprotected by the First Amendment, so the states can ban it, punish it, or do whatever else they want without worrying about the First Amendment. [517 - 525]

B. Three-part test: For a work to be "obscene," all three parts of the following test must be met [518]:

1. Prurient interest: First, the average person, applying today's community standards, must find that the work as a whole appeals to the "prurient" interest;

2. Sexual conduct: Second, the work must depict or describe in a "patently offensive way" particular types of sexual conduct defined by state law; and

3. Lacks value: Finally, the work taken as a whole, must lack "serious literary, artistic, political or scientific value." [Miller v. Cal.]

C. Significance: So something will not be "obscene" unless it depicts or describes "hard core sex". (For instance, mere nudity, by itself, is not obscene.) [519]

D. Materials addressed to minors: It will be much easier for the state to keep erotic materials out of the hands of minors. Probably even minors have some First Amendment interest in receiving sexually explicit materials, but this is typically outweighed by the state's compelling interest in protecting minors against such material. So the distribution of non-obscene but sexually explicit materials may basically be forbidden to minors (provided that the regulations do not substantially impair the access of adults to these materials). [521]

1. Adult's rights impaired: But if a measure aimed at minors does substantially impair the access of adults to material that's "indecent" but not obscene, the measure will be struck down. (Example: If Congress bans all "indecent" material on the Internet (as it has done), out of a fear that the material will be seen by minors, there's a good chance the measure will be found to violate the First Amendment rights of adults.) [479]

E. "Pandering": The issue of whether the materal appeals primarily to prurient interests may be influenced by the manner in which the material is advertised - if the publisher or distributor plays up the prurient nature of the materials in the advertising, this will make it more likely that the materials will be found to appeal mostly to prurient interests and thus to be obscene. The advertisement itself, and expert testimony about the likely effect of the advertising, may be admitted into evidence to aid the determination on obscenity. (The marketing of materials by emphasizing their sexually provocative nature is often called "pandering.") [523]

F. Private possession by adults: The mere private possession of obscene material by an adult may not be made criminal. [Stanley v. Georgia]. [520]

Example: While police are lawfully arresting D at his house on a robbery charge, they spot obscene magazines on his shelf. D may not be criminally charged with possession of pornography, because one has both a First Amendment right and a privacy right to see or read what one wants in the privacy of one's own home.

1. Child pornography: However, the states may criminalize even private possession of child pornography. [Osborne v. Ohio] [521]

2. No right to supply to consenting adults: Also, the state may punish a person who supplies pornography even to consenting adults. In other words, there is a right to have pornography for one's own home use, but not a right to supply it to others for their home use. [520]

VII. COMMERCIAL SPEECH

A. Commercial speech generally: Speech that is "commercial" - that is, speech advertising a product or proposing some commercial transaction - gets First Amendment protection. But this protection is in some ways more limited than the protection given to non-commercial (e.g., political) speech.[525]

1. Truthful speech: Truthful commercial speech gets a pretty fair degree of First Amendment protection. The government may restrict truthful commercial speech only if the regulation (1) directly advances (2) a substantial governmental interest (3) in a way that is "no more extensive than necessary" to achieve the government's objective. So basically, we apply mid-level review to government restrictions based on the content of commercial speech (whereas we apply strict scrutiny to conten-based restrictions on non-commercial speech). [531]

Example: Virginia forbids a pharmacist from advertising his prices for prescription drugs. Virginia must show that it is pursuing a "substantial" governmental interest, and that materially-less-restrictive alternatives are not available. Here, the state's desire to prevent price-cutting that will lead to shoddy service is not strong enough to qualify as "substantial," so the measure must be struck down on First Amendment grounds. [Virginia Pharmacy Board v. Virginia Consumer Council] [526 - 527]

2. False, deceptive or illegal: On the other hand, false or deceptive commercial speech may be forbidden by the government. Similarly, speech which proposes an illegal transaction may be forbidden (e.g., advertisements for cocaine). [531]

a. Harmful: But if the product or service is harmful but lawful, the state may not limit advertising about it any more than the state may limit advertising about a non-harmful product - the right to ban product X does not necessarily include the "lesser" right to regulate speech about product X. (Example: Congress is free to ban casino gambling entirely. But if Congress allows such gambling, it may not limit advertising of casino gambling unless the limitation passes the mid-level review standard, summarized above, that applies to regulation of truthful commercial speech. [Greater New Orleans Broadcasting v. U.S.]) [535]

3. No overbreadth: The overbreadth doctrine does not apply in commercial speech cases, because advertisers are thought not likely to be "chilled" by overly broad governmental regulation of speech. Therefore, a commercial enterprise that is protesting a regulation of speech must show that the regulation infringes the enterprise's own speech, not merely that the regulation would curtail speech not now before the court. [536]

B. Lawyers: The qualified First Amendment protection given to commercial speech means that lawyers have a limited right to advertise. Thus a state may not ban all advertising by lawyers or even ban advertising directed to a particular problem. See, e.g., Bates v. State Bar of Ariz. (Thus a lawyer can advertise, "If you've been injured by a Dalkon shield, I may be able to help you.") [527 - 529]

1. In-person solicitation: On the other han, the states may ban certain types of in-person solicitation by lawyers seeking clients (e.g., solicitation of accident victims in person by tort lawyers who want to obtain a contingent-fee agreement. [Ohralik v. Ohio St. Bar Ass'n.]) [527]

2. Direct mail: Similarly, the states may ban lawyers from direct-mail solicitation of accident victims, at least for a 30-day period following the accident. [Florida Bar v. Went For It]

VIII. SOME SPECIAL CONTEXTS

A. Special contexts:

1. Public school students: Students in public schools have a limited right of free speech. The student's right to speak freely has to be balanced against the administration's right to carry out its educational mission and to maintain discipline. [539]

a. Allowable regulation: Thus a school may ban profanity. It may also ban the school newspaper from running stories that would disturb the school's educational mission (e.g., stories about sex and birth control that the principal reasonably believes are inappropriate for younger students at the school). [Hazelwood Sch. Dist. v. Kuhlmeier]

b. Non-allowable regulation: But school officials may not suppress students' speech merely because they disagree with that speech on ideological or political grounds. (Example: School officials may not ban the wearing of anti-war armbands).

B. Group activity: The rights of a group to engage in joint expressive activity get special First Amendment protection, generally called the "freedom of association". (Example: Groups have the right to get together to bring law suits, or to conduct non-violent economic boycotts. Therefore, they cannot be prevented from doing these things by state rules against fomenting litigation or conducting boycotts. [NAACP v. Button]) [545]

C. Campaign spending: The state or federal governments can regulate campaign spending to some extent, but other campaign regulations would violate the First Amendment. [547 - 552]

1. Contributions: Contributions made by individuals or groups to candidates or to political action committees may be limited. (Example: Congress may constitutionally prevent anyone from contributing more than $1,000 to a candidate for federal office. [Buckley v. Valeo]) [547 - 550]

2. Expenditures: But a person's independent campaign-related expenditures (whether he's a candidate or not) may not be limited. (Example: A candidate may not be prevented from spending as much of his own money on getting elected as he wishes. Similarly, private citizen X may spend as much money to try to get Y elected as he wishes, as long as X spends the money in a truly independent manner rather than contributing it to Y or coordinating with Y on how it should be spent. Buckley v. Valeo, supra.) [549]

3. Ballot measure: A person has a First Amendment right to spend as much as he wants and however he wants in connection with a ballot measure. (Example: The insurance industry can spend as many millions as it wants, and organize those expenditures however it wants, in order to defeat a proposal that would roll back car insurance rates.) [552]

D. Government as speaker or as funder of speech: So far, we've looked only at the role of government as the regulator of speech by non-government actors. But sometimes, government itself wishes to speak. And sometimes, government wishes to give financial support to certain speech by others. In these two contexts - government as speaker, and government as funder of speech - government seems to have at least somewhat greater ability to prefer one viewpoint over another than it does when it merely regulates. [553]

1. Government as speaker: When government wishes to be a speaker itself, it is pretty clear that government may say essentially what it wants, and is not subject to any real rule of viewpoint neutrality. [553]

Example: Government can pay for ads attacking smoking as a health hazard, without having to pay for opponents' ads saying that the dangers of smoking are overrated.

2. Government as funder of third-party speech: It's not clear how viewpoint-neutral government has to be when it acts as funder of speech by third parties.

a. Broad-based programs: Where government operates a program that by its terms seems to be broad-based (open to all comers or to a large number of speakers), government probably has to be viewpoint-neutral.

Example: Where government offers a cheaper mailing rate to publications, it can't give the rate to publications whose message it approes of and deny it to those it disapproves of.

b. Competitive awards: But suppose that government gives awards to a few speakers on account of their special artistic or technical merit, and does this as part of a competitive process. Here, probably government can take into account the speaker's message in deciding who should get the award, at least where the award process doesn't seem designed to punish unpopular views. (However, the rules in this area are very unclear.) [553]

IX. FREEDOM OF ASSOCIATION, AND DENIAL OF PUBLIC BENEFITS OR JOBS

A. Freedom of association generally: First Amendment case law recognizes the concept of "freedom of association". In general, the idea is that if an individual has a First Amendment right to engage in a particular expressive activity, then a group has a "freedom of association" right to engage in that same activity as a group. [554]

1. Right not to associate: Individuals and groups also have a well-protected "right not to associate." Thus any government attempt to make an individual give financial support to a cause she dislikes, or to make a group take members whose presence would interfere with the group's expressive activities, will be strictly scrutinized. [555 - 559]

Example 1: Where public school teachers are required to pay union dues, a teacher has a freedom-of-association right not to have the dues used to support ideological causes the teacher dislikes. [Abood v. Detroit Bd. of Ed.]

Example 2: The Boy Scouts can't be forced (by a state anti-discrimination law) to accept an openly-gay male as a scoutmaster, because this would significantly interfere with the Scouts' First Amendment-protected message that homosexuality is immoral. [Boy Scouts of America v. Dale]

B. Illegal membership: The freedom of association means that mere membership in a group or association may not be made illegal. Membership in a group may only be made part of an offense if: (1) the group is actively engaged in unlawful activity, or incites others to imminent lawless action; and (2) the individual knows of the group's illegal activity, and specifically intends to further the group's illegal goals. (Example: Congress cannot make it a crime simply to be a member of the American Communist Party. On the other hand, Congress can make it a crime to be a member of a party that advocates imminent overthrow of the government, if the member knows that the party so advocates and the member intends to help bring aout that overthrow.) [559]

C. Denial of public benefit or job: Freedom of expression also prevents the government from denying a public benefit or job based on a person's association. [559 - 565]

1. Non-illegal activities: If a person's activities with a group could not be made illegal, then those activities may generally not be made the basis for denying the person the government job or benefit.

Example 1: A state may not refuse to hire a person as a teacher merely because he is a member of the American Communist Party, since the state could not make it illegal to be a member of the ACP.

Example 2: At a time when Republicans are in power, a state may not refuse to hire Democrats for non-policy-making jobs like police officer or clerk. [Rutan v. Republican Party of Illinois].

2. No right/privilege distinction: There is no constitutional distinction between a "right" and a "privilege." Even if, say, a particular public benefit or job is defined by the state to be a "privilege," the state may not deny that job or benefit on the basis of the applicant's constitutionally-protected membership in a group or organization. [559]

3. Loyalty oath: Government may generally not require an applicant to sign a loyalty oath, unless the things that the applicant is promising in the loyalty oath not to do are things which, if he did them, would be grounds for punishing him or denying him the job. (Example: You cannot be required to sign a loyalty oath that you are not a member of the Communist Party in order to get a teaching job. But you can be required to sign an oath that you will not advocate the forcible overthrow of our government.) [561]

4. Compulsory disclosure: Similarly, the government may not force you to disclose your membership activities (or require a group to disclose who its members are), unless it could make that membership illegal. (Example: The state cannot require the Communist Party to furnish a list of its members.) [565 - 567]

5. Some exceptions: There are some exceptions to the general rule that associational activities that couldn't be outlawed directly also can't be made the basis for public hiring or benefits decisions. In general, these exceptions are for conduct which, although it includes protected expression, directly (and negatively) relates to performance of the job.

a. Partisan political activities: For instance, civil servants can constitutionally be forced to choose between their jobs and engaging in partisan political activities, since there's a very strong government interest in making sure that civil servants can do their jobs without being coerced into campaigning for or contributing to their elected bosses. [CSC v. Letter Carriers].

b. Patronage hirings: Similarly, some public jobs may be awarded as patronage appointments, ones the performance of which is reasonably related to a person's politics. [560]

Example: Even though I have a First Amendment right to be a Democrat, the Republican Congressman representing my district doesn't violate my rights when, on the basis of my political beliefs, he declines to hire me as, say, a speech writer, a high advisor, or some other post with a heavy political content. On the other hand, if I'm a Democrat, and there's a Republican governor in power, he can't block me from getting a government job as a clerk or secretary or police officer - the old fashioned "patronage" system whereby all public jobs could be restricted to supporters of the party in power has been outlawed as a violation of freedom of association, and only jobs with a heavy political content, like speech writer, say, or Chief of Staff, can be based on party membership.

i. Independent contractors: The same rule - that party affiliation may be used if and only if the performance is reasonably related to one's politics - applies to people and companies doing work for government on an independent-contractor basis. [561] (Example: P has a contract to haul trash for City. Even if the contract is at-will, City can't decline to renew it on the grounds that P belongs to the wrong political party or has supported the Mayor's opponent.)

c. Speech critical of superiors or otherwise inappropriate: An employee gets only limited protection for speech or associational activities that are critical of superiors, or otherwise inappropriate for the workplace. Where the speech involves a matter of "public concern," the court will balance the speech rights of the employee and the government's interest as employer in promoting efficiency on the job. Where the speech does not involve a matter of public concern, the court gives great deference to the employer's judgment. [Connick v. Myers] [562 - 563]

Example: P, a government clerical worker, hears that John Hinckley has tried to shoot Pres. Reagan, and says, "If they go for him again, I hope they get him." P is fired for the remark. Held, for P. This remark was intended as political commentary and was thus on a matter of "public concern," so P could not be fired unless the remark heavily affected P's job performance, which it did not. [Rankin v. McPherson]

X. SPECIAL PROBLEMS OF THE MEDIA

A. The media (and its special problems): Here is a brief review of some special problems related to the media: [571 - 585]

1. Prior restraint: In general, the government will not be able to obtain a prior restraint against broadcasters or publishers. In other words, only in exceptionally rare circumstances may the government obtain an injunction against the printing or airing of a story, and the government will almost never be allowed to require that a publisher or broadcaster obtain a permit before it runs a story. [573 - 577]

Example: The New York Times may not constitutionally be enjoined from publishing part of the Pentagon Papers, even though these government-prepared materials might contain information that is useful to our enemies or that would embarrass the U.S. [N.Y. Times v. U.S.]

a. Gag order: This means that a judge may generally not impose a gag order on the media ordering it not to disclose a certain fact about a pending trial. [577 - 578]

i. Participants: But the judge may usually order the participants not to speak to the press. For instance, a state may prevent a lawyer from making any statement which would have a "substantial likelihood of materially prejudicing" a trial or other court proceeding. [Gentile v. State Bar of Nevada] [578]

2. Subpoenas by government: The press does not get any special protection from government demands that the press furnish information which other citizens would have to furnish. In particular, if a reporter has information that is of interest to a grand jury, the reporter may be required by subpoena to disclose that information to the grand jury even though this would cause him to violate a promise of confidentiality to a source. [Branzburg v. Hayes] (But the state is always free to enact a "shield law" making such subpoenas illegal under some or all circumstances.) [579 - 581]

3. Right of access: The press does not get any general right of access to information held by the government. [582 - 584]

a. Right to attend trials: However, the media does have a constitutionally protected right to attend criminal trials. This right is not absolute - the government can close the media (and the public) out of a trial if it shows that there is an "overriding" government interest being served by a closed trial, and that that interest cannot be served by less restrictive means. [Richmond Newspapers v. Virginia] [583]

i. Showing rarely made: But this showing will rarely be made, so that as a practical matter the press is usually entitled to attend a criminal trial. (Example: A state statute automatically bars the press from hearing any trial testimony by a minor who was allegedly the victim of a sex crime. Held, the statute unduly interferes with the public's right of access to criminal trials. [Globe Newspapers v. Sup. Ct.])

ii. Other proceedings: Probably the media also has a qualified constitutional right to attend other proceedings, like civil trials and pre-trial proceedings. [Gannett Co. v. DePasquale]. [583]

 


Chapter 15 
FREEDOM OF RELIGION

I. INTRODUCTION

A. Two clauses: There are two quite distinct clauses in the First Amendment pertaining to religion.[599]

1. Establishment Clause: First, we have the Establishment Clause. That clause prohibits any law "respecting an establishment of religion." The main purpose of the Establishment Clause is to prevent government from endorsing or supporting religion.

2. Free Exercise: The second clause is the Free Exercise Clause. That clause bars any law "prohibiting the free exercise of religion." The main purpose of the Free Exercise Clause is to prevent the government from outlawing or seriously burdening a person's pursuit of whatever religion (and whatever religious practices) he chooses.

B. Applicable to states: Both the Establishment and the Free Exercise Clauses by their terms only restrict legislative action by Congress. However, both clauses have been interpreted to apply also to the states, by means of the Fourteenth Amendment's due process clause. Therefore, you don't have to worry whether the government action in question is federal or state - the same standards apply to each. [599]

C. Conflict: Occasionally, the Establishment and Free Exercises Clauses seem to conflict on particular facts. That is, a religious group may be asking for some government benefit; if the benefit is given, there may be an Establishment Clause problem. Yet if the benefit is not gven, this may be a burdening of religion. When the two clauses seem to conflict, the Free Exercise Clause dominates. In other words, if a particular benefit or accommodation to religion is arguably required by the Free Exercise Clause, then when government grants that accommodation or benefit it is not violating the Establishment Clause.

Example: A public university makes meeting rooms available to all sorts of student groups. If the university allows religious groups to use the room, there might be an Establishment Clause problem. But if it doesn't allow religious groups to use the rooms, while allowing non-religious groups to do so, there might be a Free Exercise Clause problem. Consequently, it will not be an Establishment Clause violation for the university to allow the religious groups to use the rooms. [599]

II. THE ESTABLISHMENT CLAUSE

A. General rule: The overall purpose of the Establishment Clause is to put a wall between church and state. In other words, the government must stay out of the business of religion, and religious groups must to some extent stay out of the business of government. [599 - 600]

1. Some examples: Here are some things that would clearly be forbidden by the Establishment clause:

a. Official church: Congress cannot establish an "official religion of the United States". In fact, Congress probably couldn't even declare that "the American people believe in God," because the Establishment Clause means that government may not prefer or endorse religion over non-religion.

b. Go to church: The government cannot force people to worship. In fact, the state can't even intentionally encourage people to worship - for example, it cannot decide that it wants to promote church attendance, and then give people a special tax deduction that applies to church donations but not to other charitable donations. (But it could, as Congress does, give a general tax deduction for charitable contributions, and let contributions to churches be eligible. This would be allowable because the government is treating religion the same as non-religion, not preferring religion over non-religion.)

c. Preference of one religion over another: The government cannot intentionally prefer one religion over another religion. For instance, a state may not decide that since Christians are in the majority, it will allow tax deductions for contribution to Christian churches but not for contributions made, say, to synagogues.

d. Participate: Government may not actively participate in religious affairs, or allow religious organizations to have a special participation in government affairs. For instance, Congress probably could not constitutionally use public officials and public polling places to run an election to determine the next head of the American Presbyterian Church - this would be an undue governmental entanglement in religious affairs.

B. Three-part test: Government action that has some relationship to religion will violate the Establishment Clause unless it satisfies all three parts of the following test (known as the "Lemon" test, from Lemon v. Kurtzman) [600]:

1. Purpose: First, the government action must have a secular legislative purpose. In other words, there must be some governmental purpose that has nothing to do with religion. (If there is both a religious and a non-religious purpose, then this prong is probably satisfied.)

Example: Alabama passes a statute saying, "Every public school student shall have the opportunity to engage in silent prayer or meditation for at least two minutes at the start of every school day." If there is evidence that the legislature was motivated solely by a desire to help students pray, then the statute will be struck down (and in fact such an Alabama statute was struck down. [Wallace v. Jaffree]) This is true even if many of the students who take advantage of the statute engage in non-religious meditation - if the sole purpose was to aid religion, that's enough to make the government action void.

2. Effect: Second, the governmental action's principal or primary effect must not be to advance religion. (But incidental effects that help religion do not violate this prong.)

3. Entanglement: Finally, the governmental action must not foster an excessive governmental entanglement with religion. (Example: Massachusetts lets a church veto the issuance of a liquor license to any premises located within 500 feet of the church. Held, this statute violates the Establishment Clause, because it entangles churches in the exercise of governmental powers. [Larkin v. Grendel's Den])

C. Religion and the public schools: If the government tries to introduce religion into the public schools, it is probably violating the Establishment Clause. [601 - 608]

1. Instruction: Thus the government may, of course, not conduct religious instruction in the public schools. In fact, it can't even allow privately-employed religious teachers to conduct classes on the public schools' premises during school hours. [601 - 602]

a. Accommodation: However, it's probably allowable for the government to allow students to leave school early to attend religious instruction somewhere else. It's also probably acceptable for government to let religious groups have access to school facilities, as long as non-religious groups are given equal access. Remember our example of the university that lets all kinds of student groups, including religious groups, use meeting rooms - that's permissible.

2. Prayer reading: The official reading of prayers in the public schools will virtually always be unconstitutional. See, e.g., Engel v. Vitale. That is, it will almost always turn out to be the case that either the sole purpose, or the primary effect, of the prayer reading is to advance religion. [603 - 605]

a. Moment of silence: Even the setting aside of a "moment of silence" at the beginning of the school day will generally violate the Establishment Clause, since a moment-of-silence statute will usually turn out to have been solely motivated by the legislators' intent to advance religion, or will at least have the primary effect of advancing religion. (But this will always turn on the actual purpose and effect of the particular statute - there's no absolute per se rule against moments of silence. [Wallace v. Jaffree] [603]

b. Prayer reading at graduation: Similarly, the school may not conduct a prayer as part of a graduation ceremony, at least where school officials can fairly be said to be sponsoring the religious message. [Lee v. Weisman] [604 - 605]

c. Student-selected speakers don't solve problem: The school can't easily get around prayer-reading problems by having the student body elect a student speaker, and then having that speaker decide whether to give a prayer. As long as the school's process can be reasonably viewed as supporting school prayer, the fact that a student-body election intervenes is irrelevant. [Santa Fe Indep. Sch. Dist. v. Doe] [605]

3. Curriculum: The state may not design or modify the curriculum of its schools in order to further religion at the expense of non-religion, or to further one set of religious beliefs over others. (Example: A state may not forbid the teaching of evolution. [Epperson v. Ark.] Similarly, it probably may not demand that "creationism" be taught in addition to evolution, since "creationism" is mainly a religious doctrine the teaching of which would have the primary effect of advancing religion. [Edwards v. Aguillard]) [607 - 608]

4. Equal reatment of religion and non-religion: But it's not a violation of the Establishment Clause for government to treat religion and non-religion equally in the schools (and government may in fact be required to do this because of free-speech principles.) (Example: If a public university funds non-religiously-oriented student publications, it must fund an evangelical Christian publication on the same terms. [Rosenberger v. Univ. of Virginia.] )

D. Sunday closing laws: Laws requiring merchants to be closed on Sundays generally do not violate the Establishment Clause. The reason is that these "blue laws" have a primarily secular effect and purpose - they permit everyone (Christian, non-Christian and atheist alike) to have a uniform day of rest. [McGowan v. Md.]. [609 - 609]

E. Ceremonies and displays: Any time your exam question involves a governmentally-sponsored ceremony or display, beware of Establishment Clause problems. [611 - 616]

1. Ceremonies: Thus a ceremony put on by the government may not have the sole purpose or primary effect of advancing religion. (For instance, as noted above, the government may not normally conduct a prayer as part of a high school graduation ceremony.) [611 - 612]

a. Long-standing tradition: However, if a particular ceremony has a long historical tradition going back to the time when the Constitution was enacted, then it will probably be allowable, especially outside of the public-school context. (Example: The practice of opening a session of the legislature with a prayer by the legislative chaplain dates back to colonial days, so presumably the authors of the Bill of Rights thought that it did not violate the Establishment Clause. Therefore, the practice will be upheld. [Marsh v. Chambers])

b. Incidental references: Similarly, the Establishment Clause probably is not violated when the ceremony has an incidental reference to God or to a religious theme. (Example: The Pledge of Allegiance, with the phrase "One nation, under God," is probably allowable.)

2. Religious displays: Where a display with religious themes is either put on by the government, or put on by private groups using government property, there is a potential Establishment Clause problem. The problem usually arises where there is a "Christmas" display, "Easter" display, etc. Ask yourself this question: Would a reasonable observer seeing the display conclude that the government was endorsing religion? If so, there is a violation of the Establishment Clause. [612 - 616]

a. Context: Context is very important. If there is one religious symbol, but it is surroundedby primarily-secular symbols, then the display would be taken as a whole and probably does not violate the Establishment Clause. For instance, if a nativity scene is surrounded by reindeer, Santa Claus, "Season's Greetings" banners, etc., then as a whole the display would seem to be primarily secular, and the nativity scene won't be a violation of the Establishment Clause. [Lynch v. Donnelly]. But if the nativity scene or other primarily-religious symbol stands by itself, then that display probably will have a primarily religious effect, and thus violate the Establishment Clause.

F. Intentional preferences between denominations: The government may not intentionally prefer one religion over another, or one sect over another. [616 - 618]

Example: The New York legislature creates a special school district whose residents consist solely of members of a particular orthodox Jewish sect, the Satmar Hassidim. The purpose and effect of the special district is to let the Satmars get public funding for a public school in their village to educate their handicapped children. Held, the district violates the Establishment Clause, because it was created in a way that singled out the Satmars for a special preference not made available to other groups (and also because it amounted to a delegation of state authority to a group chosen according to a religious criterion.) [Bd. of Educ. of Kiryas Joel Village v. Grumet] [616 - 617]

1. Unintended effect: But a regulation that has the incidental unintended effect of helping one religion or sect more than another, or hurting one more than another, does not generally violate the Establishment Clause.

G. Aid to religious schools: Whenever your fact patterns shows that the government is giving some sort of financial aid to religious schools, you must immediately think "Establishment Clause". And, of course, you must apply the three-part test. [618 - 623]

1. General principles: In general, here are some things to look for when you analyze aid to religious schools:

a. Benefit to all students: A government program that benefits all students, at public, private non-parochial and parochial schools alike, is much more likely to pass muster than aid which goes overwhelmingly to parochial-school students;

b. Colleges: Aid to religious colleges is easier to justify than aid to high schools or, especially, elementary schools; and

c. Aid to parents: Aid given to parents in a way that permits them to choose what school to use the aid at is more likely to be sustained than aid given directly to the school.

2. Transportation: Programs by which parents may have their children transported free to religious schools are probably constiutional, as long as the transport program also covers public and private non-parochial students. [Everson v. Bd. of Ed.] [619]

3. Textbooks and equipment: Similarly, textbooks and equipment (e.g., computers) may be loaned to parochial school students as long as loans on the same basis are made to public school and private non-parochial students. But only books and materials that are strictly secular may be used (e.g., Bibles can't be lent out). [Bd. of Ed. v. Allen; Mitchell v. Helms] [620]

4. Teachers: The state may send public school teachers into parochial schools, even to teach basic academic subjects, as long as what's taught is free of: (1) religious content and (2) influence from the parochial school's administration. [Agostini v. Felton] [620 - 621]

5. Tax benefits: The state may give tax benefits to parents who send their children to non-public schools including parochial schools, at least if the benefit scheme is neutral on its face (i.e., applies to non-religious schools as well as religious ones). This is true even if the benefits overwhelmingly go to the parents of religious school students. [Mueller v. Allen] [622 - 623]

III. THE FREE EXERCISE CLAUSE

A. Free Exercise generally: Let's now turn to the second clause relating to religion, the Free Exercise Clause. Under this clause, the government is barred from making any law "prohibiting the free exercise" of religion. The Free Exercise Clause prevents the government from getting in the way of people's ability to practice their religions. [624 - 625]

1. Conduct vs. belief: The Free Exercise Clause of course prevents the government from unduly burdening a person's abstract "beliefs". (Example: Congress cannot ban the religion of voodooism merely because it disapproves of voodooism or thinks that voodooism is irrational.) But the Clause also relates to conduct.

a. Non-religious objectives: Free Exercise problems most typically arise when government, acting in pursuit of non-religious objectives, either: (1) forbids or burdens conduct which happens to be required by someone's religious belief; or conversely, (2) compels or encourages conduct which happens to be forbidden by someone's religious beliefs.

Example (government forbids conduct dictated by belief): The military prohibits any soldier from wearing a hat (other than a regular military cap) while on duty. This order prevents orthodox Jewish soldiers from wearing yarmulkes, which their religion requires them to wear at all times. (On these facts, the Supreme Court held that the Jewish officer-plaintiffs had a free exercise right that was being burdened, but that this right was outweighed by the need to defer to the military's judgment that discipline and uniformity require the ban on all non-standard headgear. [Goldman v. Weinberger])

Example (government compels or encourages conduct forbidden by the belief): The state awards unemployment compensation only to jobless workers who make themselves available for work Monday through Saturday. This rule has a non-religious purpose (making sure that only those whose employment is truly involuntary collect). But the statute strongly encourages conduct that violates the religious beliefs of some persons (e.g., Seventh Day Adventists, for whom Saturday is the Sabbath). Therefore, the rule raises significant free exercise problems. (In fact, the statute was held to violate the Free Exercise Clause as applied to Seventh Day Adventists. [Sherbert v. Verner]. The case is discussed below.)

B. Intentional vs. unintentional burdens: The Free Exercise Clause prevents the government from unduly interfering with religion whether the government does so intentionally or unintentionally.

1. Intent: If the interference with religion is intentional on government's part, then the interference is subjected to the most strict scrutiny, and will virtually never survive. [625 - 626]

Example: The Ps practice Santeria, a religion involving animal sacrifice. D (the local city council), motivated by the citizenry's dislike of this religion and of the sacrifices, outlaws all animal sacrifice (but exempts Kosher slaughter). Held, the Ps' Free Exercise rights have been violated. D has acted with the purpose of outlawing a practice precisely because the practice is motivated by religion, so D's act must be most strictly scrutinized. Because there is no compelling state objective here, and because any state objective that the state is pursuing (e.g., maintenance of public health) could be achieved by less discriminatory means, the law fails this strictest scrutiny. [Church of the Lukumi Babalu Aye v. Hialeah]

2. Unintentional burden: If government unintentionally burdens religion, the Free Exercise Clause is still applied. Here, however, the government action is not per se illegal. Instead, the Court traditionally uses a somewhat less stringen form of strict scrutiny. (But there are signs that the Court is cutting back on this strict scrutiny for unintentional burdens on religion. For instance, if the government makes certain conduct a crime, and this unintentionally burdens the exercise of religion, the Court does not use strict scrutiny, and instead uses "mere rationality" review.) [626 - 631]

C. Coercion required: The Free Exercise Clause only gets triggered where government in some sense "coerces" an individual to do something (or not to do something) against the dictates of his religion. If the government takes an action that unintentionally happens to make it harder for you to practice your religion - but without coercing you into taking or not taking some action as an individual - the Free Exercise Clause does not apply. [632]

Example: The federal government, without intending to affect any religious practice, wants to build a road. The effect will be to destroy Native American ritual grounds.

Held, there is no impairment of free exercise rights, because the Native American plaintiffs are not being coerced into doing or not doing anything - external reality is simply being changed in a way that makes it harder for them to practice their religion. (But if government forbade the Native Americans from using existing grounds to pray on, this would be a violation, because the Native Americans would be coerced into not taking some action of their own.) [Lyng v. Northwest Indian Cemetery Ass'n]

D. Denial of benefits: One way the government may be found to have interfered with a person's free exercise of religion is if the government denies the person a benefit solely because of that person's religious beliefs or practices. (Example: A state may not forbid practicing members of the clergy from holding elective state office, because this imposes a burden on the exercise of a religious belief. [McDaniel v. Paty])

E. Exemptions required: Because strict scrutiny is traditionally given even to unintentional impairments of religion, government must give an exemption to avoid such an unintentional interference with religion, if this could be done without seriously impairing some compelling governmental interest. (Example: P is denied unemployment benefits because he refuses to work on Saturday, his religion's holy day. Held, the state must exempt P from the requirement of Saturday work as a condition to unemployment benefits, since an exemption will not seriously undermine any compelling governmental interest. [Sherbert v. Verner]) [627 - 629]

1. Criminal prohibition: But there's a special, recent, rule in the area of criminal prohibitions: A generally applicable criminal law is automatically enforceable, regardless of how much burden it causes to an individual's religious beliefs (assuming that the government did not intend to disadvantage a particularreligion when it enacted its law). [631 - 632]

Example: A state may make it a crime to possess the drug peyote, and may enforce this rule against Native Americans who use peyote as a central part of their religious rituals. [Employment Div. v. Smith]

2. No serious impairment required: Also, even where no criminal prohibition is involved, government does not have to tolerate a serious impairment of some compelling governmental goal - here, no exemption needs to be given, because strict scrutiny is satisfied. (Example: Even if a religiously-affiliated university honestly believes that its religion bars African Americans and whites from studying together, government need not tolerate interference with its compelling goal of eliminating racial discrimination, so government does not need to exempt the university from anti-discrimination laws.)

3. Cutting back: In any event, all of free exercise law seems to be in the process of being scaled back, so the general rule that government must give an exemption where this can be done without seriously impairing a compelling governmental interest, may be on its way out.

F. Conscientious objection: Probably Congress must (as it does) give an exemption for military service for conscientious objectors (i.e., those who believe that all war is evil). [633]

1. Selective c.o.'s: But Congress need not give an exemption to "selective" c.o.'s (i.e., those who do not believe that all war is evil, but who believe that the particular war in which they are being asked to fight is evil). [Gillette v. U.S.]

G. Public health: Government may have to sacrifice its interest in the health of its citizenry, if individuals' religious dictates so require. [634]

1. Competent adult: Where the case involves a competent adult, and only that adult's own health is at stake, government may probably not force treatment on the individual over his religious objection. (Example: A state probably can't force a Jehovah's Witness to accept a blood transfusion or other life-saving medical care over that person's religious objections.)

2. Child: However, where the patient is a child whose parents object on religious grounds, the state may probably compel the treatment.

3. Danger to others: Also, if the case involves not only a health danger to the person asserting a religious belief, but also a health danger to others, then government probably does not have to give an exemption. (Example: P may be forced to undergo a vaccination over his religious objections. [Jacobson v. Mass.])

H. What constitutes a religious belief: Only bona fide "religious beliefs" are protected by the Free Exercise Clause. But "religious beliefs" are defined very broadly. [634]

1. Non-theistic: For instance, non-theistic beliefs are protected. That is, the belief need not recognize the existence of a supreme being. (Example: Public officials cannot be forced to take an oath in which they say that they believe that God exists. [Torcaso v. Watkins])

2. Unorganized religions: Similarly, unorganized or obscure religions get the same protection as the major religions. In fact, even if a person's religious beliefs are followed only by him, he's still entitled to free exercise protection.

3. Sincerity: A court will not sustain a free exercise claim unless it is convinced that the religious belief is "genuine" or "sincere." (The fact that the belief or practice has been observed by a religious group for a long period of time may be considered in measuring sincerity. But the converse - absence of a long-standing practice - does not mean that the belief is insincere.)

a. Unreasonableness: The court will not consider whether the belief is "true" or "reasonable". Even a very "unreasonable" belief (that is, a belief that most people might consider unreasonable) is not deprived of protection, so long as it is genuine. [U.S. v. Ballard] (Example: The practice of voodoo, including sticking pins into dolls representing one's enemies, might be considered by most of us to be "unreasonable." But as long as such a practice is part of a person's genuine set of beliefs and religious practices, it will not be deprived of protection merely because most find it unreasonable.)

 


Chapter 16 
JUSTICIABILITY

I. JUSTICIABILITY GENERALLY

A. List: In order for a case to be heard by the federal courts, the plaintiff must get past a series of procedural obstacles which we collectively call requirements for "justiciability": (1) the case must not require the giving of an advisory opinion; (2) the plaintiff must have standing; (3) the case must not be moot; (4) the case must be ripe for decision; and (5) the case must not involve a non-justiciable political question. [645]

II. ADVISORY OPINIONS

A. Constitutional "case or controversy" requirement: Article III, Section 2 of the Constitution gives the federal courts jurisdiction only over "cases" and "controversies." The federal courts are therefore prevented from issuing opinions on abstract or hypothetial questions. This means that the federal courts may not give "advisory opinions". In other words, the federal courts may not render opinions which answer a legal question when no party is before the court who has suffered or faces specific injury. [645]

Example: Suppose that both houses of Congress approve a bill, but the President has doubts about the bill's constitutionality. The President may not go to a federal court and ask the federal court whether the bill is constitutional, so that he may decide whether to veto it. If the federal court were to give its opinion about whether the bill was constitutional, at a time when no party who had been or might soon be injured by the unconstitutionality was before the court, this would be an "advisory opinion" that would violate the constitutional "case or controversy" requirement.

1. Declaratory judgments sometimes allowed: But declaratory judgments are sometimes allowed, and are not forbidden by the rule against advisory opinions. A declaratory judgment is a judicial decision in which the court is not requested to award damages or an injunction, but is instead requested to state what the legal effect would be of proposed conduct by one or both of the parties. [646]

a. Requirements: But the plaintiff is not entitled to get a declaratory judgment on just any question about what the legal consequence of the particular conduct would be. If the declaratory judgment action raises only questions that are very hypothetical or abstract, the federal court is likely to conclude that what's sought here is an illegal advisory opinion, because no specific, concrete controversy exists.

III. STANDING

A. Function of a standing requirement: Probably the most important rule about when the federal courts may hear a case is that they may do so only when the plaintiff has "standing" to assert his claim. By this, we mean that the plaintiff must have a significant stake in the controversy. [647 - 648]

Example: Suppose that during the Vietnam War, P, a federal taxpayer, becomes convinced that, since Congress has never formally declared war, P's tax dollars are being used to support an unconstitutional war. If P were to sue the federal government in federal court to have the war effort enjoined on this ground, the court would not hear his claim - he would be found to lack "standing," since (as we'll see in detail later) a person whose only connection with the controversy is that he is a taxpayer will almost never be deemed to have standing to claim that tax dollars are being used illegally.

B. Requirement of "injury in fact": The key concept behind the law of standing is simple: the litigant must show that he has suffered an "injury in fact." At its broadest level, the standing requirement means that the plaintiff must show that he has himself been injured in some way by the conduct that he complains of. [647]

C. Who is kept out: The standing rules tend to keep two main types of cases out of the federal courts: [648]

1. Non-individuated harm: First, we have cases in which the harm suffered by the plaintiff is no different from that suffered by very large numbers of people not before the court. (Example: Suppose P's only connection with the suit is that he is a ederal "citizen" or a "taxpayer" who is injured the same as any other citizen or taxpayer by the fact that the government is spending tax dollars illegally or otherwise violating some law. P does not have standing.)

2. Third parties' rights: Second, we have cases where the rights claimed to be violated are not the rights of the plaintiff, but instead the rights of third parties who are not before the court. (But there are some important exceptions to the general rule that the plaintiff can't complain of government actions that violate someone else's rights.)

D. Taxpayer and citizen suits: Here is the single most important context in which standing problems arise: suits that are brought by federal "citizens" or "taxpayers" arguing that their general rights as citizens or taxpayers are violated by governmental action. [648 - 649]

1. Taxpayer suits: Suppose that the plaintiff contends that: (1) he is a federal taxpayer; and (2) his tax dollars are being spent by the government in some illegal way. May the plaintiff pursue this suit in federal court? In general, the answer will be, "no." The fact that a person's federal taxes are used to fund an unconstitutional or illegal government program is simply not a sufficient connection with the governmental action to confer standing on the plaintiff. [Frothingham v. Mellon]. [648]

a. One exception: There is one exception: a taxpayer has standing to sue to overturn a federal tax or spending program that violates the Establishment Clause. [Flast v. Cohen] [648]

b. State and municipal taxpayers: A state taxpayer probably has federal-court standing to litigate the legality of the state's expenditures (though the Supreme Court has never said so for sure.) A municipal taxpayer definitely has standing to litigate the legality of his city's expenditures. [649]

2. Citizen suits: Suppose now that plaintiff argues that he is a federal "citizen," and that as such he has the right to have his government act in accordance with the Constitution. Assume that P has no direct connection with the governmental act he's complaining about (he's merely claiming that, like every other citizen, he has the right to have the federal government obey the Constitution). In this "citizen suit" situation, P will not have standing. The Court has always held that one federal citizen's interest in lawful government is no different from the interest of any other citizen, and that an individual litigant relying on citizenship has not shown the "individualized" injury-in-fact that is required for standing. [649]

E. Cases not based on taxpayer or citizen status: Now suppose that the plaintiff is not arguing that his standing derives from his status as citizen or taxpayer. In other words, we're now talking about the vast bulk of ordinary law suits. [649 - 653]

1. Three requirements: Here, there are three standing requirements that the plaintiff must meet: (1) he must show that he has suffered (or is likely to suffer) an "injury in fact"; (2) the injury he is suffering must be concrete and "individuated," and (3) the action being challenged must be the "cause in fact" of the injury. [649]

2. "Injury in fact": The plaintiff must show that he either has suffered, or will probably suffer, some concrete "injury in fact." [650]

a. Non-economic harm: This "injury in fact" requirement is pretty loosely applied. For instance, the harm does not have to be economic in nature. (Example: A group of people who use a national forest claim that the construction of a recreation area in the forest will violate federal laws. To get standing, the plaintiffs point to the injury to their "esthetic and environmental well-being" which would result from the construction. Held, this esthetic and environmental injury satisfies the "injury in fact" requirement, even though the harm is non-economic and in fact very intangible. [Sierra Club v. Morton]) [650]

b. Imminent harm: If P has not already suffered the injury in fact, he must show that the future injury is not only probable but "concrete" and "imminent." In other words, a vague sort of harm that may come about in the indefinite future will not suffice. (Example: The Ps challenge a federal regulatory action that they say will endanger certain species abroad. The Ps say that they have in the past, and will in the future, travel abroad to visit the habitats of these species. Held, the Ps lack standing, because the lack of specific information about their future plans means the harm to them is not sufficiently concrete or imminent. [Lujan v. Defenders of Wildlife]) [650]

c. Remedy: In addition to showing an "injury in fact," P must show that the injury would be remedied by a favorable court decision. [650]

3. Individuated harm: The harm that has been or will be suffered by the plaintiff has to be "individuated." That is, it can't be the same harm as suffered by every citizen, or every taxpayer.

a. Large number: But the harm may still be found to be "individuated" even though there are a large number of people suffering the harm. [650]

i. Same harm: But remember that if the harm complained of by the plaintiff is truly the same harm as suffered by every citizen or every taxpayer in the country, the harm will not be sufficiently "individuated," and the plaintiffs won't have standing.

b. Organizations and associtions: What about organizations and associations - does the organization itself have to suffer the harm, or can it merely assert that its members will suffer or have suffered the required harm? In general, the answer is that organizations and associations will be able to sue on behalf of their members. However: (1) the members have to be people who would have standing in their own right (so that an organization of citizens or taxpayers could not complain of harm that is suffered by all citizens or taxpayers); (2) the interests being asserted by the organization in the lawsuit must be related to the organization's purpose (so that an environmental group could probably not try to pursue its members' interests in, say, an effective criminal justice system); and (3) the case cannot be one which requires the participation of individual members. [Hunt v. Wash. Apple Advt'g Comm.]. These three requirements are pretty liberally applied. [651]

4. Causation: Finally, the action that the plaintiff is complaining about must be the "cause in fact" of his injury. Actually, this causation requirement breaks down into two sub-requirements: (1) P has to show that the challenged action was a "but for" cause of his injury, that is, that the injury would not have occurred unless the challenged action had taken place; and (2) P must show that a favorable decision in the suit will probably redress the injury to him. [651 - 653]

F. Third-party standing: One of the key functions of the standing doctrine is that this is how courts apply the general rule that a litigant normally may not assert the constitutional rights of persons not before the court. (This principle is sometimes called the rule against use of "constitutional jus tertii," - jus tertii means "rights of third persons" in Latin.) [653]

Example: Zoning laws enacted by the city of Penfield, N.Y., intentionally exclude the building of low-income housing. The Ps are residents of nearby Rochester, who claim that because Penfield has refused to allow low- and middle-income housing, the taxes of these Rochester residents have risen, since Rochester has to subsidize or build more low-income housing than it would have to build than had Penfield not practiced exclusionary zoning.

Held, these Rochester residents lack standing. It is true that their higher taxes are an "injury in fact" to them. But Penfield's zoning laws do not apply to these Rochester residents, and therefore do not violate their rights. And the Rochester residents may not claim that the rights of other people not before the court have been violated (e.g., people who would have moved to Penfield had exclusionary zoning not been practiced). [Warth v. Seldin]) [652 - 653]

1. Not constitutionally required: This rule against the assertion of third-party rights is not mandated by the Article III "case or controversy" requirement. In other words, it is not a rule imposed by the Constitution on the federal courts; instead, it is a rule of "prudence," a policy decision adopted by the Supreme Court. [654]

2. Exceptions: Since the rule against asserting third-party rights is not required by the Constitution, the Supreme Court is free to make whatever exceptions it wishes to the doctrine.

a. Associations: One exception is that an association will normally be allowed to raise the rights of its members. For instance, if a group of people would be injured by damage to the air they breathe and the water they drink, an organization of which they are members (e.g., the Sierra Club) would typically be allowed to sue on their behalf. [651]

b. Overbreadth: Another sort of exception to the rule against third-party standing is the First Amendment overbreadth doctrine, which we covered earlier in our discussion of freedom of expression. Remember that the basic idea behind overbreadth is that even where a statute could constitutionally be applied to the plaintiff's conduct, if he can show that the statute would unconstitutionally restrict the expression of some other person not before the court, the court may hear the lawsuit and strike down the statute. We allow overbreadth in the First Amendment area but not elsewhere because statutes that purport to restrict expression in an overbroad manner will have a "chilling effect" on citizens' general willingness to exercise their freedom of speech. [654]

IV. MOOTNESS

A. General rule: A case may not be heard by the federal courts if it is "moot." A case is moot if it raised a live controversy at the time the complaint was filed, but events occurring after the filing have deprived the litigant of an ongoing stake in the controversy. [654]

Example: P sues D, a state university, claiming that the university's law school admissions program is racially discriminatory. P is permitted to attend the law school while the case is being litigated. By the time the case arrives at the Supreme Court for review, P is in his final year of law school, and the university says that he will be allowed to graduate regardless of how the case is decided. Held, the case is moot. Therefore, the appeal will not be decided. [DeFunis v. Odegaard]

1. Constitutional basis for: Apparently the rule that the federal courts may not decide "moot" cases is required by the Constitution. That is, deciding a case when the parties no longer have a live controversy would amount to issuing an advisory opinion, in violation of Article III's "case or controversy" requirement.

B. Exceptions: Nonetheless, the courts recognize a few situations where a case that would appear to be "moot" will nonetheless be heard. [654]

1. "Capable of repetition, yet evading review": For instance, a case will not be treated as moot if the issue it raises is "capable of repetition, yet evading review." This "capable of repetition, yet evading review" doctrine takes care of situations in which, if the case were to be declared moot, a different person might be injured in the same way by the same defendant, and his claim, too, would be mooted before review could be had. [654]

Example: P, a pregnant woman, attacks the constitutionality of Texas' anti-abortion law. She brings the suit as a class action, in which she is the named plaintiff and other pregnant women who want abortions are unnamed members. By the time the case reaches the Supreme Court, P is no longer pregnant.

Held, the case should not be dismissed as moot. A pregnancy will almost always be over before the usual appellate process is complete. Therefore, if the Court insisted that the named plaintiff who starts the suit must still be pregnant by the time the suit gets to the Supreme Court, no plaintiff could ever get to that Court. So the constitutionality of the Texas anti-abortion law is "capable of repetition, yet evading review." [Roe v. Wade]

2. Voluntary cessation by defendant: The case will generally not be treated as moot if the defendant voluntarily ceases the conduct that the plaintiff is complaining about. So if the plaintiff is seeking an injunction, the defendant can't usually get the case dismissed on mootness grounds merely by saying that he has voluntarily stopped the conduct that the plaintiff is trying to get an injunction against - unless the defendant shows that there is no reasonable likelihood that he will return to his old ways, the court will let the action go forward. [655]

3. Collateral consequences: Finally, a case will not be moot even if it is mostly decided, if there are still collateral consequences that might be adverse to the defendant. For instance, suppose that a criminal defendant has already served his sentence by the time his attack on the constitutionality of his conviction comes before the federal court. The case will not be moot, because there will probably be future collateral consequences to the defendant from his conviction (e.g., he will lose the right to vote, his reputation or employability will be damaged, etc.) [655]

V. RIPENESS

A. Ripeness problem generally: You can think of the problem of ripeness as being the opposite of mootness. A case is moot, as we've just seen, because it no longer involves an actual controversy. By contrast, a case is not yet ripe (and therefore not yet decidable by a federal court) if it has not yet become sufficiently concrete to be easily adjudicated. [655]

Example: The Hatch Act prohibits federal executive-branch employees from getting involved in "political management or...political campaigns." The plaintiffs are federal civil servants who want to attack the constitutionality of the Hatch Act. The plaintiffs claim that they want to engage in prohibited political activities. But they concede that they have not yet engaged in such activities.

Held, the plaintiffs' claims are not yet ripe. The problem is not that the Ps have not yet violated the statute. Rather, the problem is that the plaintiffs have not been adequately specific about the precise acts that they wish to carry out. (If the Ps would specify in detail what they want to do, their suit might not be unripe even though they haven't yet violated the act.) [United Public Workers v. Mitchell]. [655]

B. Uncertain enforcement of criminal statute: One common ripeness problem arises where the plaintiff attacks the constitutionality of a statute and says that he has violated the statute, but it is clear that the statute is rarely enforced and probably will not be enforced in this particular situation. Here, the rules are pretty blurry - suffice it to say that if the court believes that it is very unlikely that the statute will be enforced against the plaintiff either for the activity he has already done or similar activity he is likely to do in the future, the court will probably treat the case as being not ripe.

Example: Connecticut forbids the distribution of contraceptives. Two married couples and a physician challenge the law's constitutionality, and allege that they have violated the law. Held, the case is not ripe, because the statute has been on the books for 80 years with only one reported prosecution, so there does not exist the required "clear" threat that the plaintiffs will be prosecuted. [Poe v. Ullman] [656]

1. Specific threatened harm required: But for a case to be ripe, it is not necessary that the litigant have already suffered harm. It will be enough that there is a reasonable probability of harm. However, the anticipated harm has to be fairly specific. [656]

VI. THE ELEVENTH AMENDMENT AND SUITS AGAINST THE STATES

A. The Eleventh Amendment generally: The Eleventh Amendment specifically bars any federal suit "against any one of the states by citizens of another state, or by citizens or subjects of any foreign state." [656]

1. Damage suits against states: The Eleventh Amendment has been held to bar most types of damage suits against a state. /P>

a. Plaintiff not a citizen of defendant state: By its own terms, the Amendment clearly applies to suits against a state brought by citizens of a different state or by foreigners. (Examples: A citizen of Missouri may not bring a damage suit against the state of Illinois. Nor may a British subject bring a damage suit against the state of Illinois.)

b. Suit by citizen of defendant state: The Eleventh Amendment has been interpreted to apply also to bar a damage suit where the plaintiff is a citizen of the defendant state. [Hans v. Louisiana] (Example: Suppose P is an employee of the Delmarva state legislature. He is then fired, in apparent violation of his employment contract. P brings a suit for contract damages against Delmarva, in federal court. This suit would be a violation of the Eleventh Amendment, as broadly interpreted by the Supreme Court.)

2. Suits by states or federal government: The Eleventh Amendment does not bar federal suits brought by one state against another state, or by the federal government against a state.

3. No counties or cities protected: Only the state itself, not its subdivisions, such as counties or cities, is protected by the Eleventh Amendment. (Example: P, a county worker, is fired. He brings a federal suit for contract damages against the county. Since the suit is not against the state per se, the Eleventh Amendment does not apply, even though the county is in essence a subdivision of the state.)

4. No bar against injunctions: The Eleventh Amendment essentially bars only suits for damages. That is, it does not bar most suits for injunctions. For instance, if a private litigant sues a state official to enjoin him from taking acts which would violate the plaintiff's constitutional or federal-law rights, the Eleventh Amendment does not apply and the suit may proceed. [Ex parte Young]

5. Congress can't override: Congress generally can't change the "no federal-court suits against the states" principle behind the 11th Amendment, even if it wants to and expressly says it's doing so. [Seminole Tribe v. Florida] [658 - 660]

Example: Congress passes a statute saying any state can be sued in federal court by private citizens for violating, say, federal patent or environmental laws. This statute won't have any effect - a federal court still can't hear a private suit against a state for damages for violating the federal law. [Florida Prepaid v. College Sav. Bank] [659]

a. Exception for remedial powers: But there's an exception - if Congress is acting properly pursuant to its remedial powers under the 13th, 14th or 15th Amendment, it may abrogate the states' 11th Amendment immunity.

B. States' sovereign immunity: The states have a constitutionally-guaranteed sovereign immunity from private damage suits brought against the state in the state's own courts. This is true even if the suit is based on a Congressionally-granted federal right. [660 - 661]

Example: Congress passes a valid statute saying that state employees must receive premium pay for overtime just as private-sector employees do. Employees of Maine sue the state in Maine courts on this right. Held, the Constitution's structure incorporates the doctrine of sovereign immunity, and that doctrine allows Maine to avoid hearing the employees' suit, even if Congress has expressly said that the states must hear such suits. [Alden v. Maine] [661]

VII. POLITICAL QUESTIONS

A. The doctrine generally: The final aspect of justiciability is the requirement is that the case not involve the decision of a "political question." This rule is even more vague than the other justiciability rules we've talked about already. The doctrine does not mean that federal courts wil not decide a case that involves politics. It doesn't even mean that courts will refuse to decide cases where political issues are right at the heart of the controversy. Instead, the court will decline to hear a case on political question grounds only if it thinks that the doctrine of separation of powers requires this, or if it thinks that deciding the case would be unwise as a policy matter. [662]

1. Two of the factors used: Two of the factors that seem to be very important in whether a case will be found to involve a non-justiciable political question are:

a. Commitment to another branch: First, the fact that the case presents an issue which has been committed by the Constitution to another branch of the federal government, i.e., to Congress or to the President instead of the courts.

b. Lack of standards: Second, the fact that there are no manageable standards by which a court could resolve the issue.

B. "Commitment to other branches" strand: The courts will refuse to decide a case on political-question grounds if the case raises an issue the determination of which is clearly committed by the Constitution to another branch of the federal government. [663 - 664]

Example: D, a federal judge, claims that the Senate has used improper procedures in convicting him following his impeachment, because the case was heard before a committee of Senators rather than the full Senate (though the full Senate voted, after receiving a transcript of the committee proceedings). D claims that this violates the Impeachment Clause, which says that "the Senate shall have sole Power to try all Impeachments." Held, the case presents a nonjusticiable political question, because the Constitution has given the Senate, not the courts, the power to decide what constitutes a "trial." [Nixon v. U.S.]

1. Other impeachment issues: The same principle probably applies to all aspects of the impeachment process. Thus if the House voted to impeach the President and the Senate voted to convict, the Supreme Court would probably refuse to review either of these decisions on "commitment to other branches" political-question grounds (so that if the President tried to get the Supreme Court to hear his argument that the crime for which he was impeached and convicted was not within the constitutionally-defined category of "high crimes and misdemeanors," the Court would probably refuse to consider the merits of this argument.)

2. Rare: It is quite rare for a case to be declined on the grounds that it involves a question committed to some other branch of government.

C. "Lack of judicially manageable standards": The second major factor that may lead the court to decide that there is a non-justiciable political question, is that there are no manageable standards by which the courts can resolve the issue. [665]

Example: Article IV, Section 4 provides that "the United States shall guarantee to every state in this union a republican form of government." Some unhappy Rhode Island citizens stage a rebellion. Ultimately, various Rhode Islanders ask the federal courts to decide which of two competing factions is the lawful government of the state.

Held, the Court cannot decide this question, because it presents a political question. There are no criteria by which a court could determine whether a particular "government" was "Republican." [Luther v. Borden]

D. Reapportionment: Let's now look in some detail at the federal cases on legislative reapportionment. [666 - 669]

1. One person, one vote rule: The landmark case of Baker v. Carr, and cases following it, establish the so-called "one person, one vote" principle: any governmental body, whether it's a federal one (like congressional districts) or a state one (like a state legislature) must be apportioned on a population basis, so that all voters have essentially the same voting power. If a governmental electoral scheme does not comply with this "one person, one vote" principle, it violates the equal protection rights of the under-represented voters. [Reynolds v. Sims]. [666 - 667]

a. Both houses of state legislature: One of the consequences of the "one person, one vote" principle is that if a state has a bicameral (two-house) legislature, both houses must be elected based on population. Thus, paradoxically, the U.S. Constitution prohibits a state from having one body that awards seats without reference to population (e.g., a house that gives the same number of votes to each county), even though the U.S. Senate is built upon exactly this kind of non-population-based scheme!

2. How much equality is required: The rules for how much equality is required vary depending on whether we're talking about a congressional districting scheme or, instead, a state or local districting scheme. [668]

a. Congressional: For congressional districts, the districts have to be almost precisely equal. Even a scheme where one congressional district within a state was only 1% more populous than another has been struck down. States must make a "good-faith effort to achieve precise mathematical equality" in the drawing of congressional districts. [Kirkpatrick v. Preisler]

b. State and local: Much greater deviation from mathematical equality is allowed where what is being apportioned is state legislatures or local governmental bodies. So for example, a 10% or smaller deviation between the voting power of a voter in one district versus a voter in another will generally be upheld. [White v. Regester] Even greater disparities will be allowed if there are good reasons for them. (For instance, suppose a state wants not to have to redraw its county boundaries, and wants to have each county elect its own representative to the state Assembly. This desire to "respect pre-existing political boundaries" will probably justify, say, a 15% or even 20% disparity in per-person voting power.)

3. Gerrymandering: Consider gerrymandering, that is, the process by which the strength of a particular voting bloc is curtailed by restricting its members to carefully and artificially-constructed districts. It's very hard for a major political party to win a gerrymandering suit against the other party. [669]

a. Racial minority: But if a racial or ethnic minority can show that the gerrymandering scheme was intentionally designed to hurt, and did hurt, that minority, it will probably win an equal protection suit. See, e.g., Gaffney v. Cummings. For instance, if the state legislature draws districts for the state senate in a way that intentionally gives African Americans control of 5% of the districts when African Americans constitute 10% of the state population, African American voters have a good chance of winning an equal protection suit.

b. Racial majority: In fact, even a racial majority can win an equal protection suit if it shows that race was the predominant factor used to draw district lines. [Miller v. Johnson]