State Action If a state government is the actor, then violations will be found via the 14th If the Natl

tl gov. is the actor, then violations will be found via the 5th Private Actors Public Function Test- a private entity engaging in an activity that has traditionally and exclusively been performed by the government is subject to the constitution o Marsh v. Alabama- A private entity that acts like a governmental body and performs a public function is subject to the constitution Ex: governing a town, running an election o Jackson v. Metropolitan Edison Co.- even though private owned utility was heavily regulated, enjoyed a partial monopoly, receives state cooperation, and terminated service in a manner not in concordance with state law The actions of a private entity are not considered state action unless there is a sufficiently close nexus between the State and the challenged action Whether an activity is a public function based on whether the activity has traditionally and exclusively been performed by the government o Terry v. Adams A private political party that controls the outcome of elections engages in state action thereby making it subject to the Fifteenth Amendment o Evans v. Newton Operating a park constitutes a public function; the owner is subject to the 14th amendment o Shopping Centers Amalgamated Food v. Logan Valley Plaza Shopping centers serve a public function and therefore the 1st amendment applies Lloyd Corp v. Tanner (overruling Amalgamated) There are no 1st amendment rights in a private shopping center if the speech at issue is not related to the activities at the shopping center Where adequate alternative avenues of communication existed, it would have been an unwarranted infringement of property rights to require it to yield rights Hudgens v. NLRB (overruled amalgamated) 1st amendment doesnt apply to people entering privately owned shopping centers o Entanglement Exception- the constitution applies to private actors if the government authorizes, encourages, or facilitates it. Shelley v. Kramer

Judicial enforcement of private agreement constitutes state action for purposes of the fourteenth amendment Lugar v. Edmondson Oil Co. Using the court and government officials to seize property without due process of law involves state action for purposes of the 14th amendment Burton v. Wilmington Parking Authority When a state becomes entangled in a private partys actions so that the state and the private party have a symbiotic relationship, the private party must comply with the 14th amendment Moose Lodge v. Iris A private club that obtains a state liquor license does not necessarily engage in state action for purposes of the 14th amendment Amer. Manuf. Mut. Ins. Co. v. Sullivan A private company in a highly regulated industry , such as workers compensation, is not a state actor if it makes its own payment decisions without state approval or encouragement State Action Requires An alleged constitutional deprivation caused by the exercise of right or privilege created by the State The party charged with the deprivation must be a state actor Rendell-Baker v. Kohn Publicly-funded and regulated private organizations are not state actors under the 14th amendment unless the government compels or influences their actions Reitman v. Mulkey A state constitutional provision that bars laws prohibiting discrimination involves the state in discrimination in violation of the 14th amendment Modern Substantive Due Process Fundamental Rights 1. It must be determined whether the right involved is a fundamental right a. The right to marry is a fundamental right (loving v. Va.) b. States are permitted to presume that children born into an extant family unit are of that union, and therefore deny a natural father the right to assert substantive parental rights (Michael H. v. Gerald D.) c. The right of both immediate and extended family members to live together is a fundamental right protected by principles of substantive due process (Moore v. City of East Cleveland)

d. Parents generally have a right to make decisions regarding the upbringing of their children, and any state interference with that right will be closely scrutinized (Meyer v. Nebraska) e. There is a fundamental constitutional right to procreation i. Right to use and distribute contraceptives to married and unmarried persons f. A constitutional guarantee of privacy includes a qualified right to obtain a pre-viability abortion (Roe v. Wade) i. Gov. can regulate pre-viability abortions so long as those regulations do not impose an undue burden on the womens ability to make abortion decision (Planned Parenthood v. Casey) g. convictions for sodomy of two grown man violate vital interests in liberty and privacy protected by the due process clause, and furthers no legitimate state interest which could justify the statute's intrusion into the personal and private life of the individual. (Lawrence v. Texas) h. fundamental right to inter-state travel w/i borders of US (Saenz. Roe) i. The equal protection clause requires that all voters be awarded the opportunity for equal participation in the election of state legislatures, One person, one vote. (Reynolds v. Simms) j. 1st and 14th amnendment prohibit making mere private possession of obscene materials a crime (Stanley v. Georgia) i. Doesnt include the right to sell, purchase, receive, or transport obscene material (Paris Adult theatre v. Slatyon) k. Not Fundamental rights i. The right to acquire a public education is not a constitutionally guaranteed fundamental right; therefore, laws affecting that right are subject only to rationale basis scrutiny (S.A. Ind. School District v. Rodriguez) 1. If a state chooses to deny the benefit of free public education to undocumented alien children it must do so in order to further some substantial state interest (Plyler v. Doe) ii. Classifications based on age need only be rationally related to a legitimate state purpose (Mass. Bd. Or Retirement v. Murgia) 2. it must be determined whether the constitutional right at issue has been infringed upon a. Ex: interference with purchase and use of contraceptives 3. if the infringed upon right is deemed fundamental, it must be determined whether the governments action is justified by a constitutionally-sufficient purpose, a compelling interest a. Ex: the need to win a war, protect a childs health 4. it must be determined whether the action that infringes upon the claimants rights is sufficiently related to the constitutionally sufficient purpose used to justify the infringement

a. there must also be a showing that the law infringing upon the right is necessary to the achievement of that purpose i. Least restrictive b. this generally requires the government to show that there is no lessrestrictive means of achieving the same purpose *Due process denies a right to everyone, while EP denies to some allows to others Equal Protection- intended to ensure that the government has not classified citizens in an improper manner without a sufficient justification Classifications arise from statutes or government action that expressly distinguish between citizens in some manner o Or from a discriminatory impact on a particular group Whether the gov. has sufficiently justified its classification of citizens o The Court the importance or legitimacy of the interest the state is purportedly seeking to protect, and an inquiry into whether the challenged law or act sufficiently fulfills that purpose Level of Scrutiny Strict Scrutiny- the government carries the burden of proving that the classification was necessary (narrowly tailored) to achieve a compelling or overriding state interest o Most rigourous review government action can undergo Most gov. action under this test fails o Race and alienage Facialy Discriminatory- Race and National Origin Classifications on the Face of the Law Korematsu a law or government act that is by its own terms burdens or works to the disadvantage of some group of citizens on the basis of race or natl orgin is a facial classification, which should be strictly scrutinized Racial classifications are more likely to be born of prejudice, rather than legitimate government interests Racial and ethnic groups are discrete and insular minorities Race and national orgin are immutable traits Facialy Neutral laws w/ a discriminatory impact or discriminatory administration (Must show a discriminatory purpose) Yick Wo. V. Hopkins o Though the law itself be fair on its face and impartial in appearance, yet, it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution. Washington v. Davis- Racially (statistical) disproportionate effect by itself is constitutionally insignificant.

o De jure segregation- a current condition of segregation resulting from intentional state action Difference between de jure and de facto segregation is purpose or intent to segregate o 5th amendment is applicable b/c D.C. is not a state and 14th is inapplicable Arlington Heights v. MHDC Mere knowledge that a law will have or continue to have, a discriminatory effect does not establish purposeful discrimination Factors: historical background for the decision or law, specific sequence of events leading up to the challenged decision a departure from normal procedure, the legislative history Court found that the Equal Protection Clause guarantees procedural fairness instead of achieving a particular substantive result Mclesky v. Camp Disparate impact is evidence of discriminatory intent, but alone, can not serve as the basis of finding of purposeful discrimination School Segregation Freeman v. Pitts The court pulled back broad discretion to desegregate schools and held that multiple school districts where there has not been a showing that all of the school districts affected committed some constitutional violation Once the effect of desegregation has been ameliorated, federal judicial involvement should cease o Remedial Use of Race- Gov. Programs that attempt to assist racial or ethnic minorities and that do so in an explicitly race or ethnically conscious way will trigger strict scrutiny. City of Richmond v. J.A. Co. B/c the city of Richmond has failed to identify the need for remedial action in the awarding of its public construction contracts, its treatment of its citizens on racial basis violates the dictates of the Equal Protection Clause o 50% population, .67% minority contracts- no evidence that qualified minority contractors have 5

been passed over for city contracts or subcontracts either as a group or in any individual case The city of Richmond has legislative authority over its procurement policies, and can use its spending powers to remedy private distributions, if it identifies that discrimination with the particularity required by the 14th o A claim that there has been past discrimination in a particular industry cannot justify the use of an unyielding racial quota o Gross overinclusiveneess of Richmonds racial preference strongly impugns the citys claim of remedial motivation Grutter v. Bollinger Gruter v. Bollinger- a permissible goal requires only a good faith effort to come w/I range demarcated by the goal itself & permits consideration of race as a plus factor in any given case while still ensuring that each candidate competes w/all other qualified applicants. (1) law school had a compelling interest in attaining a diverse student body; and (2) Admissions program was narrowly tailored to serve its compelling interest in obtaining the educational benefits that flow from a diverse student body, and thus did not violate the Equal Protection Clause. Admissions policy promotes cross racial understanding and helps break down stereotypes Higher quality, racially enlightening/interesting class discussion with variety of backgrounds Highly qualified, racially diverse officers corps. Is essential to the militarys ability to fulfill its principle mission to provide national security Must be a flexible standard that considers all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily the same weight o No quota system b/c insulates applicants into categories w/o cross competition Adarand Constructors v. Pena All racial classifications, imposed by whatever federal, state, or local government must be analyzed by a reviewing court under strict scrutiny Stevens Dissent o Invidious discrimination is oppressive, remedial race based classifications foster equality Critical Race Theory

Many individuals who have come to expect institutionalized advantages of being white in America understandably take offense to any diminution in this power Critics of affirmative action mischaracterize the purpose of affirmative action as punishing innocent whites for the sins of slavery and segregation committed by their ancestors. Rather it attempts to remove present barriers to black economic participation that are rooted in this past and from which white Americans currently benefit. Patricia Williams- If a thief steals so that his children may live in luxury and the law returns his ill gotten gain to its rightful owner, the children cannot complain that they have deprived of what they did not own

o Alienage Graham v. Richardson- a states desire to preserve limited welfare benefits for its own citizens is inadequate to justify making noncitizens ineligible for public assistance and restricting benefits to citizens and longtime resident aliens Political function exception- a state can exclude non-citizens from participation in government and the democratic process (apply rational basis Cabell v. Cavez-Salido o The specificity of the classification serves a legitimate political end o It may be applied only to persons holding state elective or important non-elective executive, legislative, and judicial positions, those officers who participate directly in the formulation, execution or review of broad public policy and hence perform functions that go the heart of representative government. Ambach v. Noirwick- public school teaching is a governmental function which must only meet a rationale basis test Foley v. Conelki- aliens cant be state troopers b/c troopers execute broad public policy Justification Discrete and insular minority Cant vote and protect themselves through the political process History of discrimination against aliens, often based on prejudice or economic protection However, alienage is different from race and gender b/c it is not immutable. Aliens are capable of becoming citizens

 Intermediate scrutiny- requires the gov. to show that the classification is substantially related to an important gov. interest o Quasi-Suspect- Term used for classification which is not expressly subject to heightened scrutiny, but which deserves close attention o Gender or 1. the classification serves important gov. objectives that do not rely on archaic or overbroad generalization about the different talents 2. objectives are genuine in the sense that they describe actual state purposes, not rationalization for action in fact differently grounded 3. the discrimination means employed are substantially related to the achievement of these purposes (US v. VA) Benign- intended to help women or even intended to redress past discrimination against them Craig v. Boren- 21 year old males challenge law allowing women to drink 3.2 beer at 18. (overruled o Gender classifications must serve important governmental objectives and must be substantially related to achievement of those objectives o Establishes intermediate scrutiny as the appropriate level of review for gender-based classifications The government must prove an exceedingly persuasive justification for gender based classifications Invidious- intended to harm women Personnel Adm of Mass. V. Feeney- to be deemed purposefully discriminatory a government act must have been taken because of, not merely in spite of, its adverse affect upon an identifiable group o Purpose to aid veterans, not to discriminate against women o Court rejected the idea that a person intends the natural and foreseeable consequences of his voluntary action US. V. Virginia- states must proffer an exceedingly persuasive justification for gender classifications which categorically excludes women from educational opportunities o Justification proffered in defense of the classifications must be the actual purpose behind the governments decision to distinguish between men and women, and may not merely be a post hoc rationalization o illegitimacy (marital and non-marital children)

 Rationale Baisis review- the challenged action be rationally related to a legitimate purpose o All other categories o a presumption that a statute or action is rationally related to a legitimate government interest most lenient standard of judicial review overwhelming number of gov. actions upheld under rationale basis o Any legislative purpose proffered by the government will act to uphold the challenged law, regardless of whether that indeed was the purpose behind the law o Underinclusion Railway Express v NY- the mere fact that a challenged classification fails to discriminate against persons whose inclusion would also further the stated government purpose does not make the law violative of equal protection o Overinclusiveness is not constitutionally fatal o Failed Rationale Basis (Mere Rationality w/ Teeth) Cleburne v. Cleburne Living Center- City of Cleburne denied a special use permit for the operation of a group home for the mentally retarded Because legislative or regulatory classifications based on mental retardation are neither suspect nor quasi-suspect their validity should be determined pursuant to a rational basis review. Justice Marshall (sliding scale)- The application of the rationality review the court undertakes is affected by the kind of group impacted and the importance of the benefit being offered or withheld Romer v. Evans- state const. amendment prohibiting protection the status of person based on sexual orientation a state may not enact legislation which classifies a particular group of citizens on the basis of one characteristic and imposes upon them a political burden not applicable to the general citizenry. It imposes a broad and undifferentiated disability on a single named group It is so broad as to call into doubt any of the justifications proffered in its defense Free Speech: Governmental speech regulation is legal if 1. it is content neutral a. content based speech regulations are scrutinized strictly b. content neutral laws are analyzed i. subject matter neutral I. doesnt disallow discussion of certain topics

ii. viewpoint neutralI. if the gov. allows an issue to be presented in a nonpublic forum, it may not limit the presentation to only one view c. using only intermediate scrutiny i. advances important gov. interests ii. which are unrelated to merely restricting speech iii. it is no more restrictive than necessary to further legitimate interests 2. the law is not vague or overbroad a. Vagueness- If there is no reasonably ascertainable standard of guilt prescribed and the statute sets vague and indeterminate boundaries on freedom, speech and assembly the law violates the 14th (Herndon v. Lowry) i. A seemingly vague statute may be saved by a court opinion that provides adequate limitations b. Overbreadth- A statue is void on its face due to overbreadth if it does not aim specifically at evils within the allowable area of [governmental] control but sweeps within its ambit other activities that constitute an exercise of protected speech rights (Gooding v. Wilson) i. A law is constitutionally overbroad if it: I. significantly or substantially restricts more speech than the constitution allows and II. the can demonstrate a significant number of situations where it could be applied to restrict protected speech. ii. Standing- litigants can challenge overly broad statutes without showing that their own activities could not be regulated by a properly drawn statute I. Based on a judicial prediction or assumption that the statutes very existence may cause others not before the court to refrain from constitutionally protected speech or expression iii. Overbreath analysis turns on determining whether the challenged statute substantially concerns protected expression and whether it is possible to separate its constitutional components from its unconstitutional applications I. Board of Airport Commr v. Jews for Jesus- Ban on all 1st amendment activity at LAX is overbroad a. Ban would encompass talking, reading, or wearing campaign buttons b. Statute can not be limited b/c of the vagueness of the statute 3. it is not a prior restraint a. Prior Restrains on Expression- a system which bans certain types of communications in advance (Near v. Minn) i. Prior restraints against publication are invalid unless they I. Protect national security during wartime a. Publishing troop movements in wart time

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b. Gov. burden of proof is very high and harm must be more than theoretical (NY Times v. US) II. Restrict obscenity III. Protect against incitement to violence, or forcible overthrow of gov. ii. Prior restraint is fundamentally different from after the fact punishment, because it seeks to suppress publication. iii. Suppression will result in impressible censorship of the kind the 1st amendment was intended to stop b. Licensing and Permits are permissible if i. Serves an important purpose ii. Sets clear standards for granting/rejecting applicants, which allows almost no discretion and (Shuttlesworth v. City of Birmingham) iii. Provides procedural safeguards, like prompt decisions and judicial review of denials Time, Place, & Manner- regulations which permits speech, but limits it to certain times, places, and manners. (City of Renton v. Playtime Theaters) o In (Designated) Public Forums Regulations are acceptable if they are 1. designed to serve substantial governmental interests 2. do not limit alternative avenues of communication unreasonably 3. are content neutral 4. and are narrowly tailored (strict scrutiny) o Public Forum- public property that has historically been open to speech related activities (ex: streets, sidewalks, public parks) o Designated Public Forum- public property that has not historically been open to speech-related activities, but which the gov. has thrown open for such activities on a permanent or limited basis by practice or policy (ex: school rooms open to public after hours) o Nonpublic Forums- public property other than streets, sidewalks, parks and designated public forums Must be viewpoint neutral and reasonably related to a legitimate governmental purpose o Ward v. Rock Against Racism- for time, place, and manner restrictions are deemed sufficiently narrow as long as they are more effective than no regulation at all, even if they are not the least restrictive/intrusive method o Frisby v. Schultz- picketing outside abortion dr. homes the Court found the state had a legitimate interest in protecting the unwilling listener while in their house. Therefore, because the picketing was considered to be intrusive, the ordinance was narrowly tailored and was constitutional. Unconstitutional Condition- the government cannot 1. Condition a benefit on giving up a constitutional right nor 2. Deny benefits for excising ones constitutional rights o Speiser v. Randall- California cannot require citizens file oath not to support U.S.s overthrow in order to receive tax exemption

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But see Rust v. Sullivan- gov. may fund family planning, with the condition that recipient medical centers not recommend abortion It is constitutional for the government to selectively fund programs which encourage certain activities in the public interest, without also funding alternative approaches. o * When the court wishes to void a governmental funding preference, it finds that adopting the governments viewpoint is a condition to receiving funding, but when the court wishes to void a governmental funding preference, it finds that adopting the governments viewpoint is a condition to receiving funding Unprotected Speech o Incitement to illegal activities The 1st amendment does not protect speech which is used under such circumstances, and is of such a nature, that it creates a clear and present danger of inciting illegal activity Abrams v. US- 1st amendment doesnt protect pro-bolshevik pamphleteer who urges workers to stop producing munitions Homes Dissent- the government may prevent only present danger of immediate evil, or an intent to bring it o It is natural for people sure of there ideals to prosecute opposing expression. But over time ,as men have seen many disputed creeds upset, they came to believe that the ultimate good is better reached by free trade in ideas o The best test id ideas truth is their power to become accepted in the competition of the market the government cannot criminalize advocacy of crime, except where such advocacy is (Brandenburg v. Ohio) 1. Intended to incite a. Express advocacy of law violation 2. Imminent lawless action and a. Advocacy that calls for immediate law violation 3. Is likely to produce such action a. The immediate violation of law must be likely to occur Mere abstract teaching of the moral propriety or even necessity for violence, is not the same as preparing a group for violent action, and steeling it o Fighting words The first amendment does not protect fighting words which inflict emotional distress or tend to incite listeners to retaliatory violence (Chaplinsky v. New Hampshire) Men of common intelligence would understand the words likely to cause average addresse to fight, breach peace

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Speech restrictions are unconstitutionally overbroad if they are susceptible of application to protected speech, either on their face or as authoritatively construed by courts (Gooding v. Wilson) Statutes cannot criminalize angry, abusive, vulgar speech unless it is likely to provoke imminent retaliation However, even unprotected speech, like fighting words, cannot be subject to content-based/viewpoint-based regulation R.A.V. v. St. Paul- (threatens all fighting words laws, since a law banning all conceivable fighting words is likely to be so vague or overbroad that it is void on those grounds o Obscenity Enjoys no 1st amendment protection, because it has no redeeming social value (Roth v. US- porn mailer may be prosecuted) See Also, Paris Adult Theatre v. Slaton- states may restrict commercial obscenity, even to consenting adults, to maintain order/morality (Miller v. Cali.) The gov. may regulate obscene materials which: depicts or describes sexual conduct which conduct is defined specifically by state law would be found to appeal the prurient (lustful or sexually arousing) interest by the average person, applying contemporary community standards o must consider the material as a whole portrays sexual conduct in a patently offensive way and has no serious literary, artistic, political, or scientific value Rejecting utterly without redeeming social value standard New standard allows the state to limit commercial exploitation of sex, and pursing its legitimate interest in preventing exhibition to juveniles and unwilling recipients, while providing fair notice to possible offenders Rejects national standard and advocates local standard Secondary Effects Doctrine- government may regulate speech when that speech produces harmful secondary effects, like immortality, crime, prostitution, (Erie v. Paps A.M.) Gov. may regulate speech when: o its intent is to prevent its secondary effects rather than its content o its regulation is rationally related to promoting legitimate state interests o Proffered secondary effects Maintaining the quality of life Preserving the community environment Setting the tone of commerce

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Preserving public safety And maintaining decency arguable link between obscenity & crime porns discrimination against women feminist critique allege porn which depicts womens subordination exploitation, masochism, enjoyment of rape or humiliation, constitutes sexual discrimination against women, b/c it perpetrates prejudice Child Pornography- the state may regulate child porn if it: A visual depiction Of sexual conduct specifically described by the state By children below a specified age and Made w/some scienter (deliberately or knowningly) NY v. Ferber- protects children from exploitation o However gov. may not bar visual material that only appears to depict minors engaged in sexually explicit conduct, but that in fact uses young-looking adults or CGI o Libel and slander Group Libel- government may punish racist speech as group libel if such punishment is rationally related to preserving peace Beauharnais v. Illinois- segregationist may be punished for pamphlets libeling blacks But see, N.Y. Times v. Sullivan- 1st amendment limits liability for defamation R.A.V.- hate speech deserves some const. protection Less Protected, Low-Value, and Sexual Speech- some commercial, sexually explicit communication enjoys some constitutionally protection, but the government has greater leeway to regulate it, because it is deemed low value o Zoning Ordinances- Gov. may use zoning ordinances to restrict concentrations of pornographic business (Young v. Am. Mini Theaters) o Nude Dancing- Government may ban nude dancing based on its secondary effects, though not its contents (Erie v. Paps A.M.) o Profanity and indecent speech- generally profane speech enjoys protection, but can be regulated when used in public medai The court cant punish public use /display of expletives (Cohen v. California- Fuck the Draft T-shirt) o Commercial Speech- commercial advertisements are protected as speech VA State Board of Pharmacy v. VA Citizens Consumer Council Commercial Speech o proposes a commercial transaction or

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o relates solely to the economic interest of the speaker or audience But state may still regulate it to: o suppress commercial falsehoods, deceptive or misleading advertisements, and advertisements for illegal transactions Hearer has a first amendment right to receive information Central Hudson Gas v. Public Service Comm. of NY Government regulations of commercial speech 4 part test o Must concern lawful activity and not be misleading o Whether the asserted governmental interest is substantial o Whether the regulation directly advances gov. asserted interests o Whether it is not more extensive than is necessary to serve that interest 44 Liqourmart v. R.I. The government may regulate truthful, non-misleading commercial speech only if the regulation o Directly advances Statutes must be voided if they provide only ineffectual or remote support for the governments purpose State bears the burden of proving its statute will advance its interest to a material degree o Legitimate state interests When a state entirely prohibits the dissemination of truthful, non-misleading commercial messages for reasons unrelated to the preservation of a fair bargaining process, there is far less reason to depart from the rigorous review that the 1st amendment generally demands o Defamation of Public Officials N.Y. Times v. Sullivan If tort law allows public official to recover for defamation, it must require they: o Prove actual malice Speaking while knowing the statement is false or Making statement knowing(subjective) that it is likely false o Prove the statements falsity and o Prove all elements with clear and convincing evidence

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Gertz v. Welch States may enact defamation laws which allow non-public plaintiffs to recover compensatory damages upon proof of any level of fault, but cannot permit presumed or punitive damages without proof of knowing falsity or reckless disregard for truth o Public officials- holding office o Public figures- those who actively seek and obtain public attention based on general fame or notoriety or a person who voluntarily injects himself or is drawn into a particular controversy to influence the resolution of the issues involved o No strict liability for libel o Communicative Conduct U.S. v. Obrien When an act combines speech and :nonspeech elements, the government may impose regulations if they o Are not otherwise unconstitutional o Further important or substantial state interests o Which are unrelated to suppressing free expression and o Their incidental restrictions on free speech are no greater than is essential to furthering the interest Symbolic Speech- non-verbal conduct, done to express an idea Texas v. Johnson The government may not ban flag burning as a means of expression 1. must determine whether the prohibited action constitutes expressive conduct meriting 1st amendment protection 2. if so, must determine whether the governments regulation is related to suppressing speech a. if it is, must ask whether the govt interest is justified under the most exacting standard 3. if not, apply Obrien standard Buckley v. Valeo The government may limit campaign contributions, but not campaign expenditures o Any governmental aim of reducing allegedlyskyrocketing campaign costs is illegitimate. o The 1st amendment denies government the power to determine that spending to promote ones political view is excessive or wasteful Austin v. Mi. Chamber of Comm. 16

Laws may limit the amount that a corporation may contribute to a political candidate Must be narrowly tailored to serve a compelling state interest of eliminating from the political process the corrosive effect of political war chests amassed with the aid of the legal advantages given to corporations. Clark v. Community for Creative Non-violence The ban on camping was a reasonable time, place, and manner limitation to protect the park. the ban was content-neutral and did not interfere with the demonstrators' message regarding the homeless. The regulation narrowly focused the government's substantial interest in maintaining the parks in an attractive and intact condition for visitors. o Speech on Private Property Marsh v. Alabama A private entity that acts like a governmental body and performs a public function is subject to the constitution o Public Function test- a private entity engaging in an activity that has traditionally and exclusively been performed by the government is held to be subject to the Constitution Ex: governing a town, running an election Lloyd Corp v. Tanner (overruling Amalgamated) There are no 1st amendment rights in a private shopping center if the speech at issue is not related to the activities at the shopping center Where adequate alternative avenues of communication existed, it would have been an unwarranted infringement of property rights to require it to yield rights Hudgens v. NLRB 1st amendment doesnt apply to people entering privately owned shopping centers o Speech in schools Tinker v. Des Moines ind. Comm.. schl. Dist. Public schools cannot restrict students expression, unless it would materially and substantially interfere with appropriate school discipline or Substantially interfere with the work of the school or iminge upon the rights of other students (Hazelwood) Bethel school District v. Fraser Schools may sanction students lewd speech Hazelwood School District v. Kuhlmeier

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When schools sponsor expressive activities they may edit/censor the product if o Their actions are reasonably related o To legitimate pedagogical (educational) concerns o Employee speech test Was the speech a matter of public concern A balance between the interests of the employee as a citizen, in commenting upon matters of public concern and the interest of the State, as employer, in promoting the efficiency of the public services it performs through its employees o Pickering v. Bd. Of ed. Will cty. Ill Where an employee serves no confidential, policymaking, or public contract role, the danger to the agencys successful functioning from that employees private speech is minimal o Rankin v. Mcpherson Was the speech not a matter of public concern Courts should give a wide degree of deference to the gov. employers judgment concerning whether the speech was disruptive Official duty exception when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline, o Garcetti v. Ceballos Freedom of the Press Defining the Press o Justice Steward Definition Press Clause- a structural provision, contrasting most of the other provisions in the Bill of Rights, including the Free Speech Clause Free Speech Clause- protects the specific liberties or specific rights of individuals o Justice Brennan Definition Traditional freedom of speech principles should operate when the press is engaged in mere expression An institutional understanding should apply when the press is performing tasks such as gathering or disseminating information Business Regulations or Taxes o Minneapolis Star v. Minn. Commr of revenue The government may not tax the press differently from other businesses, even to benefit it, unless necessary to achieve

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overriding governmental interests which cannot be achieved through less-restrictive means Tax singles out the press for differential treatment and It also discriminated w/I the category of the press by distinguishing between large publishers and small ones Access to Trials o Richmond Newspapers, inc, v. VA Criminal trials are presumptively open to the public and press, unless there are overriding interests Requiring Members of the Press to Testify before Grand Juries o Branzburgv. Hayes Newsman have no special privilege against grand jury subpoenas to identify confidential sources, excep that available to the general public Broadcast Regulationso Red Lion Broadcasting v. FCC The government may require broadcasters to give access to opposing views Since there are a limited number of frequencies equal time requirements are a justifiable way for the FCC to ensure that there if fair and balanced reporting The publics right to receive diverse programming is paramount over broadcasters speech/editorial rights o FCC v. Pacifica Foundation The government may impose certain sanctions against radio/tv broadcasts containing patently-offensive language (involving sex or excretion) in certain circumstances (at times children are likely to be listening) unless the sanctions target their social or political message Reasoning: Pervasive and Accessible by Children broadcasts are able to invade the privacy of the home Cable TV Regulations o Turner Broadcasting System, Inc. v. FCC A federal law requiring cable TV providers to devote some channels to local, educational broadcasters is a content-neutral speech regulation, and thus subject to intermediate scrutiny Directly serves the important interest of preserving economic viability of local broadcasters and promotes the dissemination of information to noncable viewers o US v. Playboy Entertainment Group A content based cable broadcast regulation will be upheld only if it passes muster under the strict scrutiny test Law requiring cable operators to limit sexually oriented programs to after 10pm is invalid b/c of the less restrictive alternative of enabling each household to block undesired channels 19

 Internet Regulation o Reno v. ACLU The government may regulate the internet to protect children from indecency, but only by using the least-restrictive method Freedom of Association NAACP v. Alabama o If disclosure of an expressive assemblys membership would chill its speech/assembly then the state cannot compel it, absent a valid controlling reason Roberts v. U.S. Jaycees o The government may regulate to force expressive associations to admit other members non-discriminatorily, if that regulation Serves compelling state interests Which are unrelated to suppressing ideas That cannot be achieved through means significantly less restrictive of associations First Amendment Religion The first amendment states that, Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof o These two clauses known as the Establishment Clause and the Free Exercise Clause apply to each state through their incorporation into the Due Process Clause fo the 14th amendment The free exercise clause protects an individuals ability to believe in and exercise their faith The EC prevents the gov. from taking actions that have the primary purpose or effect of aiding or inhibiting religion, and also prevents gov. entanglement w/ religion o Both Clauses act as co-guarantors of religions liberty as the framers of the constitution did not entrust the liberty of religious beliefs to either clause alone o Both the Establishment and Free Exercise Clause apply to states under 14th What is Religion o Religious belief under the Selective Service Act is defined as An individuals belief in a relation to a Supreme being involving duties superior to those arising from any human relation (U.S. v. Seeger) Those whose sincere and meaningful beliefs occupy a place in their lives equivalent or parallel to that of an orthodox belief if God, clearly qualify for the exemption o The crucial consideration with respect to determining whether the registrants beliefs are religious is whether these beliefs play the role of a religion and function as a religion in the registrants life and therefore are not merely political, sociological, or philosophical views. (Welsh v. US) o US v Ballard- A sincere, honest, meaningful, and good faith belief in something, that occupies a place in the life of its possessor parallel to that

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filled by the orthodox belief in God, and that is not essentially political, sociological, or philosophical. Sincerity of Beliefs- Finders of fact may only determine if a religious belief is sincere, but may not determine whether the beliefs themselves are true or false Thomas v. Review Bd. Ind. Employment- The resolution of what is religious is not to turn upon a judicial perception of the particular belief or practice in question, religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit 1st amendment protection Ind. beliefs may be inconsistent w/doctrines of religion The Free Exercise Clause o The free exercise clause embraces two concepts The freedom to believe and Freedom to hold religious beliefs and opinions is absolute The freedom to act Freedom of religiously motivated conduct is not where the law is neutral and generally applicable only rationale basis review is required except when o The free exercise claim is brought in conjunction w/another constitutional protection such as free speech o The government has provided for individualized treatment, such as in the unemployment compensation scheme in Sherbert o Typical Free Exercise Clause situations When the gov. prohibits behavior that a persons religion requires When gov. requires conduct that a persons religion prohibits & When gov. burdens religious observation o Unemployment A denial of gov. funded benefits to those who are otherwise eligible, but leave their place of employment b/c of religious reasons, unconstitutionally infringes on their right to free exercise of religion (Sherbert v. Verner) Generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling interest, unless another constitutional protection is burdened in conjunction, unemployment benefits can be denied (employment div. v. Smith) o Amish Right to be exempt from secondary education The parents practiced the Amish and Mennonite religions and argued that sending their children to public school after the 8th grade violated their religious beliefs and threatened their religious way of life.

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the Court found that the parents' fundamental religious belief that they should remain "aloof from the world" was endangered by the enforcement of the public education laws. Although neutral on its face, the compulsory school attendance law unduly burdened the Free Exercise Clause. The parents educated their children at home in practical pursuits and prepared them to become functioning adults in their communities. The court held that accommodating the parents' religious objections by forgoing one or two additional years of compulsory education would not impair the physical or mental health of the child, result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from societal welfare. Wisconsin v. Yoder o No Punishment of Religious Conduct Solely b/c it is Religious If a law that burdens the free exercise of religion fails to satisfy the requirements of neutrality and general applicability, it must be justified by a compelling governmental interest, and must be narrowly tailored to advance that interest Church of Lukumi Babalu Aye v. City of Hialeah The Establishment Clause o Endorsement County of Allegheny v. ACLU Greater Pitt. Chapter A gov. act is unconstitutional under the EC if, being evaluated in its context, the act has the affect of endorsing religion or could be understood by viewers to be an endorsement of religion. Van Orden v. Perry The Court held that the placement of the Ten Commandments monument on the State Capitol grounds was a far more passive use of those texts o the citizen had apparently walked by the monument for a number of years before bringing this lawsuit. Texas had treated her Capitol grounds monuments as representing the several strands in the State's political and legal history. o The inclusion of the Ten Commandments monument in this group had a dual significance, partaking of both religion and government. o The Court could not say that Texas' display of the monument violated the Establishment Clause of the First Amendment. Bd. Of Edu of Kiryas Joel Village Schl. Dist. V. Grumet

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Court invalidated a special school district created to include only members of a particular religious sect. o Lemon v. Kurtzmans An enactment must meet 3 standards to survive EC scrutiny 1. the statute must have a secular legislative purpose Stone v. Graham i. state law requiring the 10 commandments to be posted on the wall of every public school classroom violates the EC b/c it has no secular legislative purpose Wallace v. Jaffree i. A law whose purpose is to reintroduce prayer into public schools has no clear secular purpose and is unconstitutional ii. Test: Whether the gov. intentds to convey a message of endorsement or disapproval of religion States are not permitted to require that teaching and learning be tailored to the principles of any religious group i. Epperson v. Arkansas 1. A state can not prevent teachers from discussing a theory b/c of religious motives ii. Edwards v. Aguillard 1. LA creationism act advances a religious doctrine by requiring either the banishment of the theory of evolution from public classrooms of the presentation of a religious viewpoint that rejects evolution in its entirety a. Violates EC b/c it seeks to employ the symbolic and financial support of gov. to achieve a religious purpose 2. its principal or primary effect must be one that neither advances nor inhibits religion 3. the statute must not foster an excessive govt entanglement w/religion Engel v. Vitale i. SCOTUS stuck down a state law providing for voluntary student recitation of a nondenominational prayer at the start of each school day ii. The EC most immediate purpose rested on the belief that a union of gov. and religion tends to destroy gov. and degrade religion iii. EC reflects an awareness of the historical fact that gov. established religions and religious persecution go hand and hand. Lee v. Wiseman 23

i. Inviting a member of the clergy to say a prayer w/I guidelines set by school at a school-sponsered graduation, is an unconstitutional coercion for students to participate in religious activity ii. Govt coercion to participate in religious activities violates the Establishment Clause A state may extend its general state law benefits to all its citizens w/o regard to their religious faith- Where a gov. aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct Gov aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the EC. A program that shares these features permits gov. aid to reach religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not the gov. whose role ends w/ the disbursement. i. Everson v. Bd. Of Ed. Township of Ewing 1. NJ has not breeched that wall by providing safe transportation to state approved religious schools ii. Zobrest v. Catina Foothills District 1. If a handicapped child chooses to enroll in a sectarian school, we hold that the Establishment Clause does not prevent the school district from furnishing him with a sign-language interpreter there in order to facilitate his education iii. Agostini v. Felton 1. A federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is not invalid under the EC when such instruction is given on the premises of sectarian schools by gov. employees pursuant to a program containing safeguards.

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