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Constitutional Law II Cheat Sheet (DRAFT) by

This is a draft cheat sheet. It is a work in progress and is not finished yet.

Equal Protection

1. What is the Classi­fic­ati­on?
To prove existence of classi­fic­ation:
1. Exists on its face of the law
2. Demons­trate that a facially neutral law has a discri­min­atory impact and discri­min­atory purpose (only to race)
Suspect Class
Immutable charac­ter­istic, based on race, national origin, or another 'discrete and insular minority'
Race
Korem­atsu-
-All restri­ctions which curtail the civil rights of a single racial group are immedi­ately suspect subject to the most rigid scrutiny.
-Temporary exclusion upheld b/c national secruity, wartime and hardships are part of war
Loving- Miscen­gen­ation statutes rely solely on distin­ctions drawn according to race. Based on assump­tions of inferi­ority of blacks to whites.
Gender
Feeney- Veterans preference for civil jobs over non-ve­rte­rans: Law not passed w/ intention to keeping women from jobs: Purpose- in spite of the effects on women not b/c of the effects
Rokseter v. Goldberg- draft for men only okay, defer to military judgments;
Sexual Orient­ation
Bowers
Romer v. Evans (repealed all gay protection laws)
Obergefell -Relies on fundam­ental right to marry
Mentaly Ill
Clebu­rne- law reflects an irrational prejudice against them; justif­ica­tions city put forth were either not legitimate purposes or the ordinance was not a reasonable way of accomp­lishing those goals
Ex-F­elons
Not suspect, lack of immuta­bility b/c person chooses to commit crimes (but is it truly voluntary or necess­ary­/po­sitive law limits ex-cons cannot vote to help themselves)
-Laws classi­fying them are often upheld, not a classi­cally protected group
Undo­cum­ented immigrant children
Plyer v. Doe
Richa­rdson
Preemp­tion-
Elde­rly
Murgia No history of unequal treatment of elderly, thus rational basis
Pove­rty
Rodri­guez- Not a suspect classi­fic­ation. There is no actionable equal protection issue based on low-income status.
Segr­ega­tion
De Jure violates 14th amdt-
Brown- Explict segregation
Keyes- Inferrable from numerous racially targeted actions by school officials
Affi­rmative Action
See below (Voluntary desegr­egation measures)
Right to Marry
*Zablocki v. Redhail (child support): Even if state has substa­ntial state interst , the law must be suffic­iently related to that end to not violate EP.
Discrete and Insular Minori­ties
Carolene Products fn. 4- Discrete and insular minorites require additional protection from the courts.
Not Poverty
Dandridge v. WIlliams- Wealth distin­ctions are decided on a rational basis only
Facially Neutral
Laws that are facially neutral as to race and national origin will receive more than rational basis review only if there is proof of discri­min­atory intent or purpose
Disp­arate Impact
Washi­ngton v. Davis (black cops): Refused to raise scrutiny b/c discri­min­atory impact is not enough, must show explicit evidence of discri­min­atory intent.
-Argument that prior discri­min­atorion disadv­ant­aging race fails b/c its a slippery slope calling into Q other too many other statutes
Disc­rim­inatory Intent­/Pu­rpose
Arlington Heights (racial permit denial)- Proof of discri­min­atory intent could be shown through:
1. History of discri­min­ation
2. Evidence that the creators of the law intended that it be implem­ented in a discri­min­atory way
3. Disc­r­im­­inatory Implem­ent­ation
Yick Wo (chinese laundry)- Not about the purpose of the policy itself but rather about whether the facts of the implem­­­e­n­t­­ation are as troubling and extreme enough in comparison to Yick Wo to be uncons­­­t­i­t­­u­­tional
Gomillion/Yick Wo: very rare but court can Infer intent from implem­ent­ation
McCleskey v. Kemp (death row): Even with statis­tics, def must prove that the decisi­onm­akers (prose­cut­or/jury bias) in his case acted with discri­min­atory purpose, or else no EP violation. (Each jury is a sep. decisi­onm­aker, unlike same Yick Wo where same body decides all of the cases)
Disp­arate Impact + Discri­min­atory Intent
Evidence of Discri­min­atory Purpose Burden Shifts­Hunter v. Underwood (vote/­crime MT)
-If a law is racially netural, a challenger must show a discri­min­atory purpose and a discri­min­atory effect.
-If such proof is provided, the govt has the oppty to demons­trate that it would have taken the same action regardless of race. If Court accepts govt's justif­ica­tion, then rational basis review.
-If Ct. believes that there is a discr. purporse, the law is treated as a race classi­fic­ation, and will be invali­dated
-Strict scrutiny is unnecc­essary b/c persuading the Ct. that purpose behind law is discri­min­atroy forecloses the govt's ability to show a compelling purpose for it.
2. What is the approp­riate level of scruti­ny
Once classi­fic­ation is id'd, the next step is to id the level of scrutiny to be applied. SC has made clear that the differing levels of scrutiny will be applied depending on discri­min­ation.
Strict Scrutiny
The law is upheld if it is proved necesary to achieve a compelling government purpose.
-The govt must have a truly sigfiicant reason for discri­min­ating, and it must show that it cannot achieve its objective through any less discri­min­atory altern­ative.
-The govt has the burden of proof under strict scrutiny, and the law will be upheld only if hte govt pershuades the ct that it is necessary to achieve a compelling purpose.
-Strict scrutiny is virtually always fatal to the challenged law
1. Discri­min­ation based on race or national origin
2. Discri­min­ation against aliens (several exceptions exist)
Inte­rme­diate Scrutiny
Law is upheld if it is substa­ntially related (impor­tant, need not be necessary) to an important govt purpose.
-Govt has the burden of proof
1. Discri­min­ation based on gender
2. Discri­mia­ntion against nonmarital children
Rational Basis
Law will be upheld if it is rationally related to a legitimate govt purpose.
Need not be compel­ling, important or necessary. The means chosen only need be a rational way to accomplish the end.
-Challenger has the burden of proof under rational basis review
-Minimum level of scrutiny that all laws challenged under EP must meet.

Animus

Doesn't pass rational basis
 
Moreno, Romer v. Evans- Law motivated by animus against a particular identi­fiable group in uncons­tit­uti­onal.
Romer v. Evans
-Rpealed all gay protection laws

Affirm­ative Action

Voluntary desegr­egation measures are a form of affirm­ative action
Current case law supports the notion that the board may freely revoke such measures.
Crawf­ord-CA const amendment overriding CA ct. demanding districts with de jure segreg­ation take reasonable steps, was permis­sible b/c law was not a racial classi­fic­ation and states could say they would do no more than the 14th amdt. requires (only limited if school board when actions were greater than those required to comply w/ 14th amdt).
Hunter v. Washin­gto­n-­limited the powers of the school board in all instances from using race unless ct. ordered.
Parents Involv­ed
Achieving racial diversity as a compelling interest in the context of elementary and high schools.
-Kennedy Concur­rence: race could be taken into account as a means of ensuring equal opport­unity or combatting racial isolation. If high degree of de facto segreg­ation, achieving racial diversity should be regarded as a compelling interest.
-Social and educat­ional benefits that accrue from a diverse student body.
Possible altern­atives-
-1. Strategic site selection
2. Drawing attendance zones with general recogn­ition of teh demogr­aphics of neighb­orh­oods;
3. Allocating resources for special programs;
4. Recruiting students and faculty in a targeted fashion;
5. Tracking enroll­ments, perfor­mance, and other statistics by race
Bak­ke
1. Divresity is a compelling interst in education and univer­sities may use race as a factor to ensure diversity
2. But quotas or numerical quanti­fic­ation of benefits is imperm­iss­ible. (Set aside quota of 16 students)
Grutter
-Colleges have a compelling interst in creating a diverse student body, and they may use Race, as one factor, among many to benfit minorities and enhance diversity, strict scrutiny.
Ada­rand
Gave GC's on govt projects a financial incentive to hire minority busine­sses, strict scrutiny should apply
Fischer II
1. Strict scrutiny of affirm­ative action admissions processes,
2. Judicial deference to reasoned explan­ations of the decision to pursue student body diversity, and
3. No judicial deference for the determ­ination of whether the use of race in admissions processes is narrowly tailored. It then noted that the University of Texas' combined Top Ten Percen­t-h­olistic admission policy is unique and data on resulting diversity was limited; however, it noted that the university should regularly evaluate available data and "­tailor its approach in light of changing circum­sta­nces, ensuring that race plays no greater role than is necessary to meet its compelling intere­st."­
-University has an ongoing obligation to use available data "to assess whether changing demogr­aphics have undermined the need for a race-c­ons­cious policy; and to identify the effects, both positive and negative, of the affirm­ati­ve-­action measures it deems necess­ary."
Narrowly tailored
No workab­le/less restri­ctive race-n­eutral altern­atives would produce the educat­ional beneifts of diversity.
What if affirm­ative action measures are revoked?
Can violate the 14th amendm­ent if new meausures
1. Resulted in some De Facto racial segreg­ation
2. Revocation is uncons­tit­uional if that action shows itself to be motivated by discri­min­atory intent
Keyes: absent laws requiring school segreg­ation, pliantiffs must prove intent­ional segreg­ative acts affecting a substa­ntial part of the school system.
Restricts Affirm­ative Action
Schue­tte: Upheld St. law that prohibited state action from discri­min­ating or giving prefer­ences based on race or gender in education, contra­cting, or employ­ment.
Hunter v. Ericks­on­-Or­dinance is uncons­tit­utional b/c it req'd laws regulating real estate transa­ctions "on the basis of race, color, religion, national origin, or ancestry must first be approved by a majority of the electors voting on the question at a regular election before ordinance shall be effective
- upheld Amdt barred prefer­ential treatment by ordinary legisl­ative action to certain suspect classes
-Gov't attempts to make it more difficult to enact legisl­ation or policies that would benefit racial minori­ties.
-The political process docrtine has little left after Schuette.

Poltical Process Doctrine

Narrowed by Schuette
Manner in which statute was adopted was financed, injury or animus toward a particular group, can cause the statute to be invalid because of the way in which it was promul­gated.
 

Right to Contract

Economic Substa­ntive Due Process
-Deprive one of right to pursue trade/­con­tract w/ others
-Court has made it clear that economic regula­tions, laws regulating business and employment practices, will be upheld when challenged under DP clause so long as they are rationally related to serve a legit gov't purpose.
Lee Optical
-State requir­ement that new prescr­iptions to fit lenses into new frames, but ready to wear sellers were exempt. If law had some rational purpose (law protected health and encouraged people to get eyes checked), the court would be extremely defere­ntial.
Skr­upa
- Upheld law prohib­iting a person to engage in debt adjusting business, except incident to the practice of law even though effect put out debt adjusters who were not lawyers out of business. Lochner doctrine has been discarded. DP clause does not protect a right to practice trade/­con­tract even if antico­mpe­titive, gives deference to legisl­ature.
Equal Protec­tion
Priv­ileges and Immuni­ties
No state "­shall abridge the privileges or immunities of citizens of the US.
- Argued this is approp­riate place for safegu­arding substa­ntive rights.
Slaughterhouse Cases- However, Ct gave the clause an extremely narrow interp­ret­ation that has prevented it from being used to safeguard individual liberties. Thus Ct turned to DP clause to protect substa­ntive rights beyond navigating waters and traveling state to state.
-Thus, the Privileges and Immunities Clause of the Consti­tution protected only those rights guaranteed by the United States, not individual states.
9th Amendm­ent
-Ct has rarely invoked. Justifies the court's decisions for safegu­arding unenum­erated libert­ies.G­riswold v. Connec­ticut- Goldberg's concur­rence, relied upon to justify invali­dating a law prohib­iting use of contra­cep­tives
Takings Clause
Regulation go too far, it can look like a gov't taking.
Discus­sion:
Should extreme deference be overruled b/c it goes too far? Should there rational basis with bite (look to altern­atives b/c overin­clu­siv­e/u­nde­rin­clu­sive)?

Fundam­ental Right

Equal Protec­tion
If right is protected under EP, issue is whether the govt's discri­min­ation as to who can exercise taht right is justified by a sufficient purpose
-If law denies the right to some, while allowing it to others, the discri­min­ation can be challenged as offending ep or the violation can be objected to under due process
-Gov't distin­guishes among peple based on specific charac­ter­istics, or exercising right to procreate, vote, access to judicial process, and interstate travel
Due Process
If right is safegu­arded under due process, the consti­tut­ional issue is whether the gov'ts interf­erence is justified by a sufficient purpose.
-If law denies right to everyone, then due process would be best grounds for analysis.
Fundam­ental Right
Strict Scrutiny
Not a fundam­ental right
Rational Basis
Right to Procre­ate
Skinner- Struck down criminal 3 strikes, steril­ization law. (exception for white collar crime: EP violation)
Right to Marry
Loving v. Virginia (inter­rac­ial):
Zablocki v. Redhail (child support): Decision to marry is "­placed on the same level of importance as decisions relating to procre­ation, childb­rith, child rearing, and family relati­ons­hip­s"
Oberg­efell
No Right to Educat­ion
Rodri­guez- education itself is not a fundam­ental right; (But see Plyer-EP argument quasi-­suspect class)
Right to Vote (Parti­cipate in political process)
Harper- Poll tax;
Dunn- 1 yr residency
Davis v. Bandemer- political question upheld
City of Mobile v. Bolden- No right to gete your candidate elected (But See, Rogers­/Go­mil­lion)
Right to Privacy

Right of Privacy

Under SDP, there is a gen. right to privacy
Within this right to privacy is the right to decide matters that are very personal: reprod­uction, sexual orient­ation, how to raise a family, refusing medical treatment.
-If a court finds a fundam­ental right, the regulation is subject to strict scrutiny. Otherwise it is subject to rational basis.
Individual must be free from unwarr­anted gov'tl intrusion into matters fundam­entally affecting his/her person.
Gri­swo­ld
-Marital Privacy (contr­ace­ption): privacy in such a relati­onship was fundam­ental, state could not impose regula­tions to interfere with it.
Eis­ens­tadt
-Sale of bc pills to unmarried people;
Indivi­dual's right, married or single, to control reprod­uction as a fundam­ental right,
EP- treats marrieds and unmarrieds differ­ently: RB- no legit purpose, unreas­oable to prescribe pregrancy and birth of unwanted child as punishment for sex; not valid health measure
Roe v. Wade
- Right to privacy also encomp­asses a woman's decision about what to do with her own body
Right to direct upbringing and education of children
Was­hington v. Glucks­berg
No fundam­ental right to assisted suicide or right to self-d­est­ructive medical treatment b/c no history supporting such a right. Govt has a legit interest in preser­vation of life;
-No right to access assistance to medical treatment that the state forbids
Cru­zan
Right to refuse medical treatment (but not fundam­ent­al.): legit seeking to safeguard the personal element of this choice through the imposition of height­enened eviden­tiary req't. (But smallpox, anti-p­syc­hotic inmates is okay)

Abortion

One current running through many of the important abortion decision is how dependent the analysis is upon changes in medical techno­logy.
Roe
Original trimester framework was tied to the fact that at earlier stages of the pregna­ncy­-es­pec­ially the 1st trimester- the fetus was not viable, and therefore the gov'ts interest in the fetus' life was lower.
Cas­ey (joint plurality)
In part due to medical advances, focus is on viability whenever it occurs during the pregnancy instead of the rigid trimester framework.
-At viability, the state's interest in the life of the fetus are much greater.
-Established the "­undue burden­" std. for measuring whether restri­ctions on abortion are consti­uti­onal.
-Any restri­ctions which are found to impose an undue burden on a pregnant woman will be struck down.
-Gov't has a compelling interest in preser­vin­g/p­rot­ecting the fetus post-v­iab­ility.
Facts: Upheld a requir­ement for women who seeking abortions must wait 24 hours after receiving brochures of non-mi­sle­ading info to get the procedure (like the profound respect for human life), not that the woman must read the brochures to receive treatm­ent..
Hel­ler­ste­dt
law with the purpose or effect of placing a substa­ntial obstacle in the path of a woman seeking an abortion imposes an undue burden on a woman’s right to have an abortion and is uncons­tit­uti­onal.
Facts: Texas law requiring doctors to have admitting priviliges to give abortions and for abortion clics to have ambulatory surgical centers b/c the regulation only impacted the health of less than .25% of all abortions but closed most abortion clinics.
Zau­der­er
State can compel factua­lspeech that is reasonably related to a legitimate state interest.
Ste­nbe­rg
Making the woman wait before termin­ating her pregnancy without any health exceptions is uncons­tit­utional
Issues:
Other serious obliga­tions (vague­/br­oad).
-Interest the woman has in not being forced to see a pregnancy brought to term if conception was the result of rape or incest.
Cru­zan
Consti­tut­ional due process right to refuse unwanted medical treatment.
Equal Protection
Gender­-based laws since only women get pregnant.
-Inter­mediate Scrutiny (Craig): whether teh gov't has an important interest, and whether the means are substa­ntially related to the ends it seeks.
Courts have stayed away from this mode of analysis in abortion cases, instead sticking to the viabil­ity­/undue burden framework
Gonzales
Respect for human life is legit. gov't interest.
Maher v. Roe
Gov't can favor childbirth over abortion
13th Amendment
Level of intrusion over bodily integrity, concerning both privacy and liberty prongs of substa­ntive due process, is akin to being in slavery. More broadly, women's right is invaded. Should have the right to matters of childr­earing and when to raise a family (Eisen­sta­dt;­Car­ey).Even narrowly, then it is equally clear that women haave the right not to be an incubator.

Religion

Free Exercise
Smith: Free exercise does not relieve an indivi­dual’s from the obligation to comply with a “valid an neutral law of general applic­ability on the ground that the law proscribes (or prescr­ibes) conduct that his religion prescribes (or proscr­ibes)
Mand­atory Accomo­dat­ion
State Law- Unless state has RFRA-type statute, mandated accomo­dation claims would lose.
Fed'l Law-RFRA is applic­able, necess­itating a strict­-sc­rutiny like anaylsis of the imposition
Peri­mis­sible Accomo­dat­ion
-States are free to enact statutes that volunt­arily (as a permis­sible accomo­dation) raise the level of scrutuiny to be utilitzed in apply laws of general applic­ability to persons making free speech claims. That is what Congress has done with RFRA w/ regard to federal law, and has been upheld by S.C.
Hobby Lobby
RFRA violated when CHCs provide insurance coverage for contra­cep­tives tht violates itw owners' religious beliefs.
-Corporations can claim to have religious beliefs and religious free exercise, ther were less restri­ctive altern­ati­ves­--c­ongress could pay, or allow to opt out.
Religious Establ­ishment
Town of Greece- Govt cannot act as an arbiter of religious speech;
Lemon test- Lacks any clear secular purpose
Note: Endors­ement of particular religion can interfere with the free exercise of everyone else's religion
McGowan v. Maryland- Sunday laws have been upheld by the court, so long as admins­tered w/ secular purpose and effect (providing a uniform day of rest)
Braunfeld v. Brown- even disadv­ant­aging jewish people's business, general law and does not impose a burden any more than possible
-Gov't Displa­y­-Would a reasonable observer seeing the display conclude that the govt was endorsing a religion in general or in particular
Impe­rmi­ssible Display
Lynch v. Donnelly- mere recogn­ition of a holiday
Van Orden v. Perry- Surrounded by other items reflecting a wider array of faiths and cultures and serves an obvious civic purpose
Permissible display
McCreary County- display gives special and permanent prominence to a religious symbol of a particular sect
 

Speech

Under 1st amdt. jurisp­rud­ence,
When the gov't regulates speech, it must be determined if it was content based or content neutral
Content Based
Gov't restricts the commun­icative impact of the speech. (doesn't like what ad contains, could place ad w/ differnt content)
Reed v. Town of gilbert
Content Neutral
Time, Place, Manner Restri­cti­ons
Ability of the govt to regulate speeh in a public forum ina manner that minimizes disruption of a pubic place while still protecting freedom of speech.
Buffer Zones-
Madsen- fixed amt. of feet, noise restri­ctions, struck down sign bans
Schenck- buffer zones cannot be "­flo­ati­ng" following people leaving.
Hill- unlawful to "­kno­wingly approa­ch" w/o that person's consent
View­point Discri­min­ation
Allowing similar type of content, but regulating it b/c it conflicts with own views
What is speech?
Chapli­nsky: Unprot­ected under dangerous ideas or low-value speech
If Protected: Regulation must advance a compelling strong interest and it is narrowly tailored to that interst. It must show that there are no less restri­ctive means to advance the interst and this ban is necessary to achieve that objective.
Categories of Unprot­ected speech
Can be regulated: fighting words, libel, private info, commercial advert­ising, obscenity, lewd/o­ffe­nsive speech, hate speech, or child porn
Inci­tem­ent
Brand­enburg Test: Unprot­ected speech if
1. Express advocacy of a law violat­ion;
2. Advocacy must call for an immediate law violation
3. Law violation must be likely to occur
Holder v. Humani­tar­ian­-S­tatute at issue prohibited providing "­mat­erial suppor­t" to organi­zaa­tions classified as terror­ists. Material support does not encompass speech, so no 1st amdt violation.
Dennis-exception (plura­lit­y/c­omm­unism): Probab­ility material, imminence not required: Balancing approach if the gravity of the potential evil/harm enough (overthrow of govt), speech advocating it can be punished w/o any showing of likehood or imminence
True Threat
Virginia v. Black- partic­ularly O'Connor's concur­rence, state may punish true threats even if in doing so the state is distin­gui­shing b/w different types of intimi­dating acts.
9th circuit planned parent­hood- state may punish statements which would be object­ively seen as a threat and which would be understood as a serious intent to harm or assult, whether or not the party inteded the harm to actually occur
Eloni­s-More than negligence
Provokes a hostile audience reaction
Skokie- Speech must anger people to the point that it would create a clear and present danger (immin­ence) of a riot.
-Audience must be controlled before the speaker
Feiner- Only once held that speaker could be stopped, every other case has been distin­guished as "far cry from Feiner­"
Fighting Words
Cohen- Must be directed at a person, not able to avert their eyes; Must rise to the level of words that by their very utterance would inflict injury or tend to incite an immediate breach of the peace or provoke an avg person to retaliate
Hate speech
R.A.V.- burning a cross on someone's lawn
Disc­loses classified info
Prior Restra­int NYT- Gov't has a heavy burden against prior restraint and it has to cause grave and irrepa­rable danger.
Prior restraints are much more restri­ctive b/c speech never get dissem­inated at all, so courts are very weary so subject it to very high level of scrutiny
Disc­losure of private info
Obsc­enity
Miller Test:
1. The average person, applying contem­porary community standards would find that the work, taken as a whole, appeals to the prurient interest; b. The work depicts or describes, in a patently offensive way, sexual conduct specif­ically defined by the applicable state law; and c. The work, taken as a whole, lacks serious literary, artistic, political or scientific value
Lewd­/Of­fen­sive
Zoning Ordina­nces- Renton
Captive Audience
Cohen- "Fuck the Draft" - will be protected unless people cannot avert their eyes
Vague and Overbr­oad
- Must have a limiting principle (tied to a specific crime, or specific descri­ption of category)
Public Forum
Perry- the consti­tut­ion­ality of a regulation of speech depends on the place and the nature of the govts action.
Which forum?
1. Tradit­ional Public Forum:
-Public Streets and parks are the quinte­sse­ntial public forum;
-Govt may not prohibit all commun­icative activity
1. If state enforces a conten­t-based exclusion, must show that regulation is necessary to serve a compel­lling govt interst and is narrowly drawn to achieve that end
2. If regulating speech based on time, place, manner must survive strict scrutiny and be content neutral and narrowly drawn.
Schne­ider (blocking traffic)- legit gov't interest in preventing littering was not enough to close off public to speech
Mosley (picketing race disc. labor except­ion)- Different treatment violated EP (must treat labor/race picketing equally) and 1st amdt as uncons­tit­utional subject matter restri­ction on public sidewalks
Grayned- no picketing during school hours served a compelling interest narrowly drawn
2. Designated Public Forum
-Gov't must be both subject matter and viewpoint neutral and must have an important interest in regulating speech
-Cornelius- creation of a designated forum has to be intent­ional. Cases are incons­istent. Whether is a designated forum ought to be based on how wide the entity involved opens up for speech. -Speech restri­ctions are subject to the same strict scrutiny as restri­ctions in a tradit­ional public forum
3. Limited Public Forum:
Christian Legal- Choices on subject matter and speaker id must extend access to the limited forum "only to other entities of similar charac­ter­"
-Regulation allowed as long as it was reasonable and viewpoint neutral
4. Non-Public Forum: Collapsed nonpublic into limited public forum since the test for both would be the same: Govt regulation is allowed if it is reasonable and viewpoint neutral.
Adderly v. Florida- Can prohibit speech in areas outside prisons and jails. (also not public utility poles, military bases)
Gove­rnment Speech
Rust v. Sullivan (no fed funds for abortion): Dr.'s not compelled to adopt the govern­ment's speech (through activity),
-Gov't could decide what activity to subsidize, what it beleives to be in public interest. Does not infringe on a fundam­ental right/govt doesn't have to fund abortion
Blackmun dissent- discri­minates on the basis of viewpoint.
Issues: mother's life in danger/gag rule on dr's credib­ility
Pleasant Grove City v. Summum (religious statute at park)
Walker v. Texas­(Conf. lic. plate)
Matal v. Tam (TM of slant eyes)
Unco­nst­itu­tional Condit­ion
-Govt may not expressly condition a benefit (federal funds) on the req't that the recipients forgo consti­tui­onally protected speech.
AID v. Open Society Intern­ati­onal (profess specific opinio­n/b­elief about prost. goes beyond limits of fed'l funding)
-Under­mines Rust by holding speech in that case was an uncons­tit­utional condition on Open Society's receiving a federal grant (adopt a particular view of political concern)
Rosen­ber­ger- cannot condition funds if speech has religious content (viewpoint discri­min­ation)
LSC v. Velasq­uez- litigation is forum, all remedies must be available to clients; viewpoint discri­min­ation
Expr­ess­ive­/Sy­mbolic Conduct
Regulating non-verbal conduct, with an incidental affect on speech
-When speech and nonspeech eleements are combined in same conduct, a suffic­iently important gov'tl interset in regulating hte nonspeech aspect can justify incidental limits on 1st Amdt. freedoms;
O'Brien (draft card burning):
1. Must be within consti­tut­ional power of the govern­ment;
2. It must further an important or substa­ntial govern­mental interest;
3. The govern­mental interest must be unrelated to the suppre­ssion of free expres­sion; and
4. The incidental restri­ction on 1st A freedoms must not be greater than is essential to the furthe­rance of that interest
Libel
NYT v. Sulliv­an(1) that he/she is a public official; (2) case by clear and convin­cing; (3) falsity of the statement; and (4) that defendant acted with “actual malice”
Gertz: • Gertz is not a public official or public figure because although he is well known in “some circles,” he has not achieved “general fame or notoriety” in the community
Falwell- Exception for comedy­/hu­mor­/satire
IIED
Falwell
Snyder v. Phelps- speech while offensive involved a matter of public concern at the heart of 1st amdt protec­tion.
Public concern- relating to any matter of political, social, or other conern to the community, or when it is of legit. news interst; not purely private concern.; lawfully present and not disrup­tive.

Remedy

Judicial monitoring
May be approp­riate and necessary where problem is a racist applic­ation of the law, so as to avoid requiring repeated lawsuits to protect everyone affected.

District Drawing

1. Uncons­tit­utional Racial Reasons
Shaw-If a distri­cting scheme was so irraat­ional on its face to be explai­nable only as an effort to segregate voters on the basis of race, strict scrutiny would be triggered
Easley: Not invalid for racial reasons as they stand now.
Look at shape, repres­ent­ati­on,­dis­cri­min­atory intent by history, technology
2. Uncons­tit­utional as Political Gerrym­and­ering
Vieth (plura­lity)- rejected the view that the court could ever intervene on the basis of such an argument, believing it to be a political question unasnw­erable by the judiciary. Process of creating districts includes many consid­era­tions, politics and city borders, which aren't ordinarily enforc­eable by the ct.
-Ct. did not entirely foreclose on relief if some limited and precise rationale were found to correct an establ­ished violation of the const.
Perry
There has never been more than 4 votes for a holding that its a political questions.

Freedom of Associ­ation

NAACP v. Alabama- Freedom to engage in associ­ation for the advanc­ement of beliefs and ideas is an insepa­rable aspect of liberty assured by DP of 14th amdt., embraces freedom of speech
Integral to speech and assembly under 1st amdt.
Rotary club of Duarte, NY State club Assoc; BSA v. Dale
These cases acknow­ledged that the laws interfered w/ freedom of assoc.
- Although exclusions of minorities and women would cause harm, can dicrim­inate in limited circum­sta­nces:
1. Acitivity is "­int­imate associ­ati­on" a small private gathering, freedom of associ­ation protects the right to discri­minate.
2. Right to discri­minate if discri­min­ation is integral to expressive activity (no black people in KKK or jews in nazi party, b/c discri­min­ation is a key aspect of their message.)
Roberts v. US Jaycees
-Freedom to associate is not absolute and that infrin­gments on that right may be justified by regula­tions adopted to serve compelling state interest, and achieved through means signfi­icantly less restri­ctive of associ­ational freedoms.
   

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