Constitutional Law: [Connected EBook with Study Center]

Front Matter Editorial Advisors Title Page Copyright About Aspen Publishing Dedication Summary of Contents Contents Preface Acknowledgments The Constitution of the United States Chapter 1 The Federal Judicial Power A. The Authority for Judicial Review Marbury v. Madison Notes on Marbury v. Madison Authority for Judicial Review of State Judgments Martin v. Hunter’s Lessee Cohens v. Virginia B. Limits on the Federal Judicial Power 1. Interpretive Limits 2. Congressional Limits The Exceptions and Regulations Clause Ex parte McCardle Separation of Powers as a Limit on Congress’s Authority United States v. Klein Notes on United States v. Klein Robertson v. Seattle Audubon Society Bank Markazi v. Peterson 3. Justiciability Limits a. Prohibition of Advisory Opinions Opinion of the Justices Hayburn’s Case Plaut v. Spendthrift Farm, Inc. Notes on Advisory Opinions Nashville, C. & St. L. Ry. v. Wallace b. Standing i. Constitutional Standing Requirements Allen v. Wright Massachusetts v. Environmental Protection Agency Notes on Constitutional Standing Requirements: Injury, Causation, and Redressability City of Los Angeles v. Lyons Lujan v. Defenders of Wildlife Clapper v. Amnesty International USA TransUnion LLC v. Ramirez Uzuegbunam v. Preczewski Linda R. S. v. Richard D. Warth v. Seldin Simon v. Eastern Kentucky Welfare Rights Organization Duke Power Co. v. Carolina Environmental Study Group, Inc. ii. Prudential Standing Requirements The Prohibition of Third-Party Standing Singleton v. Wulff Barrows v. Jackson Craig v. Boren Gilmore v. Utah Elk Grove Unified School District v. Newdow June Medical Services L.L.C. v. Russo The Prohibition of Generalized Grievances United States v. Richardson Flast v. Cohen c. Ripeness Poe v. Ullman Abbott Laboratories v. Gardner United Public Workers v. Mitchell Regional Rail Reorganization Act Cases Lake Carriers Ass’n v. MacMullan Susan B. Anthony List v. Driehaus 303 Creative LLC v. Elenis d. Mootness Moore v. Ogilvie Roe v. Wade DeFunis v. Odegaard Friends of the Earth, Inc. v. Laidlaw Environmental Services United States Parole Commission v. Geraghty e. The Political Question Doctrine i. The Political Question Doctrine Defined What Is a Political Question? The Issues of Malapportionment and Partisan Gerrymandering Baker v. Carr Rucho v. Common Cause ii. The Political Question Doctrine Applied: Congressional Self-Governance Powell v. McCormack iii. The Political Question Doctrine Applied: Foreign Policy Goldwater v. Carter Zivotofsky v. Clinton iv. The Political Question Doctrine Applied: Impeachment and Removal Nixon v. United States Chapter 2 The Federal Legislative Power A. Introduction: Congress and the States The Framework for Analysis: McCulloch v. Maryland McCulloch v. Maryland What Role Should Concern over Protecting States Have in Defining Congress’s Powers? National Federation of Independent Business v. Sebelius B. The Necessary and Proper Clause C. The Commerce Power 1. The Initial Era: Gibbons v. Ogden Defines the Commerce Power Gibbons v. Ogden 2. The 1890s-1937: A Limited Federal Commerce Power a. What Is “Commerce”? b. What Does “Among the States” Mean? c. Does State Sovereignty Limit Congressional Power? 3. 1937-1990s: Broad Federal Commerce Power Key Decisions Changing the Commerce Clause Doctrine NLRB v. Jones & Laughlin Steel Corp. United States v. Darby Wickard v. Filburn The Meaning of “Commerce Among the States” Heart of Atlanta Motel, Inc. v. United States Katzenbach v. McClung, Sr. & McClung, Jr. Hodel v. Indiana Perez v. United States The Tenth Amendment Between 1937 and the 1990s Garcia v. San Antonio Metropolitan Transit Authority 4. 1990s-???: Narrowing of the Commerce Power and Revival of the Tenth Amendment as a Constraint on Congress a. What Is Congress’s Authority to Regulate “Commerce Among the States”? United States v. Lopez United States v. Morrison Gonzales v. Raich b. Does the Tenth Amendment Limit Congress’s Authority? New York v. United States Printz v. United States Reno v. Condon Murphy v. National Collegiate Athletic Association D. The Taxing and Spending Power For What Purposes May Congress Tax and Spend? United States v. Butler Chas. C. Steward Mach. Co. v. Davis Sabri v. United States Conditions on Grants to State Governments South Dakota v. Dole E. Congress’s Powers Under the Post-Civil War Amendments 1. Whom May Congress Regulate Under the Post-Civil War Amendments? United States v. Morrison 2. What Is the Scope of Congress’s Power? City of Boerne v. Flores Shelby County, Alabama v. Holder Chapter 3 The Federal Executive Power A. Inherent Presidential Power Youngstown Sheet & Tube Co. v. Sawyer The Scope of Inherent Power: The Issue of Executive Privilege United States v. Richard M. Nixon, President of the United States The Authority of Congress to Increase Executive Power B. The Constitutional Problems of the Administrative State 1. The Nondelegation Doctrine and Its Demise A.L.A. Schechter Poultry Corp. v. United States Panama Refining Co. v. Ryan Gundy v. United States 2. The Major Questions Doctrine Biden v. Nebraska 3. The Legislative Veto and Its Demise Immigration & Naturalization Service v. Jagdish Rai Chadha 4. Checking Administrative Power The Appointment Power Alexia Morrison, Independent Counsel v. Theodore B. Olson The Removal Power Myers v. United States Humphrey’s Executor v. United States Wiener v. United States Bowsher v. Synar Morrison v. Olson Free Enterprise Fund v. Public Company Accounting Oversight Board Seila Law LLC v. Consumer Financial Protection Bureau C. Separation of Powers and Foreign Policy 1. Are Foreign Policy and Domestic Affairs Different? United States v. Curtiss-Wright Export Corp. Notes on Curtiss-Wright Zivotofsky v. Kerry 2. Treaties and Executive Agreements Dames & Moore v. Regan, Secretary of the Treasury 3. War Powers 50 U.S. Code Chapter 33—War Powers Resolution D. Presidential Power and the War on Terrorism 1. Detentions Hamdi v. Rumsfeld Boumediene v. Bush 2. Military Tribunals Ex parte Quirin E. Presidential Power over Immigration Trump v. Hawaii F. Checks on the President 1. Suing and Prosecuting the President Richard Nixon v. A. Ernest Fitzgerald William Jefferson Clinton v. Paula Corbin Jones 2. Subpoenaing Presidential Information Trump v. Vance Trump v. Mazars USA 3. Impeachment Chapter 4 Limits on State Regulatory and Taxing Power A. Preemption of State and Local Laws 1. Express Preemption Lorillard Tobacco Co. v. Reilly 2. Implied Preemption a. Conflicts Preemption Florida Lime & Avocado Growers, Inc. v. Paul, Director, Department of Agriculture of California b. Preemption Because State Law Impedes the Achievement of a Federal Objective Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission c. Preemption Because Federal Law Occupies the Field Arizona v. United States B. The Dormant Commerce Clause 1. Why a Dormant Commerce Clause? Tennessee Wine & Spirits Retailers Association v. Thomas 2. The History of the Dormant Commerce Clause Aaron B. Cooley v. The Board of Wardens of the Port of Philadelphia ex rel. Society for Relief of Distressed Pilots 3. Analyzing Whether a Law Violates the Dormant Commerce Clause a. Determining Whether a Law Is Discriminatory Facially Discriminatory Laws City of Philadelphia v. New Jersey Facially Neutral Laws Hunt, Governor of the State of North Carolina v. Washington State Apple Advertising Commission Exxon Corp. v. Governor of Maryland West Lynn Creamery, Inc. v. Healy, Commissioner of Massachusetts Department of Food & Agriculture State of Minnesota v. Clover Leaf Creamery Co. b. Analysis If a Law Is Deemed Discriminatory Dean Milk Co. v. City of Madison, Wisconsin Maine v. Taylor & United States c. Analysis If a Law Is Deemed Nondiscriminatory Loren J. Pike v. Bruce Church, Inc. National Pork Producers Council v. Ross Summary 4. Exceptions to the Dormant Commerce Clause Congressional Approval Western & Southern Life Insurance Co. v. State Board of Equalization of California The Market Participant Exception Reeves, Inc. v. William Stake White v. Massachusetts Council of Construction Employers, Inc. South-Central Timber Development, Inc. v. Commissioner, Department of Natural Resources of Alaska C. The Privileges and Immunities Clause of Article IV, §2 1. Introduction 2. Analysis Under the Privileges and Immunities Clause What Are the “Privileges and Immunities of Citizenship”? Toomer v. Witsell United Building & Construction Trades Council of Camden County v. Mayor & Council of the City of Camden Lester Baldwin v. Fish & Game Commission of Montana What Justifications Are Sufficient to Permit Discrimination? Supreme Court of New Hampshire v. Kathryn A. Piper Chapter 5 The Structure of the Constitution’s Protection of Civil Rights and Civil Liberties A. Introduction B. The Application of the Bill of Rights to the States 1. The Rejection of Application Before the Civil War Barron v. Mayor & City Council of Baltimore 2. A False Start in Applying the Bill of Rights to the States: The Privileges or Immunities Clause and the Slaughter-House Cases Slaughter-House Cases: Butchers’ Benevolent Association of New Orleans v. Crescent City Live-Stock Landing & Slaughter-House Co. Saenz v. Roe 3. The Incorporation of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment The Debate over Incorporation Palko v. Connecticut Adamson v. California The Current Law as to What’s Incorporated McDonald v. City of Chicago Timbs v. Indiana The Content of Incorporated Rights Ramos v. Louisiana C. The Application of the Bill of Rights and the Constitution to Private Conduct 1. The Requirement for State Action The Civil Rights Cases: United States v. Stanley 2. The Exceptions to the State Action Doctrine a. The Public Functions Exception Marsh v. Alabama Jackson v. Metropolitan Edison Co. Terry v. Adams Evans v. Newton Manhattan Community Access Corporation v. Halleck Hudgens v. National Labor Relations Board b. The Entanglement Exception Judicial and Law Enforcement Actions Shelley v. Kraemer Lugar v. Edmondson Oil Co. Edmonson v. Leesville Concrete Co. Government Regulation Burton v. Wilmington Parking Authority Moose Lodge No. 107 v. Irvis Government Subsidies Norwood v. Harrison Rendell-Baker v. Kohn Entwinement Brentwood Academy v. Tennessee Secondary School Athletic Association Chapter 6 Economic Liberties A. Introduction Historical Overview Organization of the Chapter B. Economic Substantive Due Process 1. Introduction 2. The Early History of Economic Substantive Due Process 3. Substantive Due Process of the Lochner Era Allgeyer v. Louisiana Lochner v. New York Laws Protecting Unionizing Maximum Hours Laws Muller v. Oregon Minimum Wage Laws Adkins v. Children’s Hospital Consumer Protection Legislation Weaver v. Palmer Bros. Co. 4. Economic Substantive Due Process Since 1937 Pressures for Change The End of Lochnerism West Coast Hotel Co. v. Parrish United States v. Carolene Products Co. Economic Substantive Due Process Since 1937 Williamson v. Lee Optical of Oklahoma, Inc. The Rebirth of Economic Due Process? Constitutional Limits on Punitive Damages BMW of North America, Inc. v. Gore State Farm Mutual Automobile Insurance Co. v. Campbell Too Much Deference? C. The Contracts Clause 1. Introduction 2. The Modern Use of the Contracts Clause Home Building & Loan Association v. Blaisdell Government Interference with Private Contracts Energy Reserves Group, Inc. v. Kansas Power & Light Co. Government Interference with Government Contracts United States Trust Co. v. New Jersey D. The Takings Clause 1. Introduction 2. Is There a “Taking”? Possessory Takings Loretto v. Teleprompter Manhattan CATV Corp. Horne v. Department of Agriculture Cedar Point Nursery v. Hassid Regulatory Takings Pennsylvania Coal Co. v. Mahon Miller v. Schoene Penn Central Transportation Co. v. New York City Lucas v. South Carolina Coastal Council Nollan v. California Coastal Commission Dolan v. City of Tigard Palazzolo v. Rhode Island Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency 3. Is It for “Public Use”? Kelo v. City of New London 4. What Is the Requirement for “Just Compensation”? Brown v. Legal Foundation of Washington Chapter 7 Equal Protection A. Introduction 1. Constitutional Provisions Concerning Equal Protection 2. A Framework for Equal Protection Analysis Question 1: What Is the Classification? Question 2: What Is the Appropriate Level of Scrutiny? Question 3: Does the Government Action Meet the Level of Scrutiny? The Protection of Fundamental Rights Under Equal Protection B. The Rational Basis Test 1. Introduction 2. Does the Law Have a Legitimate Purpose? What Constitutes a Legitimate Purpose? Romer v. Evans Must It Be the Actual Purpose, or Is a Conceivable Purpose Enough? 3. The Requirement for a “Reasonable Relationship” Tolerance for Underinclusiveness Under Rational Basis Review Railway Express Agency, Inc. v. New York Tolerance for Overinclusiveness Under Rational Basis Review New York City Transit Authority v. Beazer Cases in Which Laws Are Deemed Arbitrary and Unreasonable U.S. Department of Agriculture v. Moreno City of Cleburne, Texas v. Cleburne Living Center, Inc. C. Classifications Based on Race and National Origin 1. Race Discrimination and Slavery Before the Thirteenth and Fourteenth Amendments Dred Scott v. Sandford Dred Scott v. Sandford The Post-Civil War Amendments 2. Strict Scrutiny for Discrimination Based on Race and National Origin 3. Proving the Existence of a Race or National Origin Classification a. Race and National Origin Classifications on the Face of the Law Race-Specific Classifications That Disadvantage Racial Minorities Korematsu v. United States Racial Classifications Burdening Both Whites and Minorities Loving v. Virginia Palmore v. Sidoti Laws Requiring Separation of the Races Plessy v. Ferguson The Initial Attack on “Separate but Equal” Brown v. Board of Education Brown v. Board of Education The Invalidation of Segregation in Other Contexts b. Facially Neutral Laws with a Discriminatory Impact or with Discriminatory Administration The Requirement for Proof of a Discriminatory Purpose Washington v. Davis McCleskey v. Kemp City of Mobile v. Bolden Is Proof of a Discriminatory Effect Also Required? Palmer v. Thompson How Is a Discriminatory Purpose Proven? Personnel Administrator of Massachusetts v. Feeney Village of Arlington Heights v. Metropolitan Housing Development Corp. Application: Discriminatory Use of Peremptory Challenges 4. Remedies: The Problem of School Segregation Introduction: The Problem of Remedies Brown v. Board of Education Massive Resistance Judicial Power to Impose Remedies in School Desegregation Cases Swann v. Charlotte-Mecklenburg Board of Education Milliken v. Bradley When Should Federal Desegregation Remedies End? Board of Education of Oklahoma City Public Schools v. Dowell Parents Involved in Community Schools v. Seattle School District No. 1 5. Racial Classifications Benefiting Minorities The Emergence of Strict Scrutiny as the Test Richmond v. J.A. Croson Co. The Arguments for and Against Strict Scrutiny The Use of Race to Benefit Minorities in College and University Admissions Students for Fair Admissions, Inc. v. President and Fellows of Harvard College Drawing Election Districts to Increase Minority Representation D. Sex Discrimination 1. The Level of Scrutiny Early Cases Approving Gender Discrimination The Emergence of Intermediate Scrutiny Frontiero v. Richardson Craig v. Boren United States v. Virginia 2. Proving the Existence of a Gender Classification When Is It “Discrimination”? Geduldig v. Aiello 3. Gender Classifications Benefiting Women Gender Classifications Based on Role Stereotypes Orr v. Orr Mississippi University for Women v. Hogan Michael M. v. Superior Court of Sonoma County Rostker v. Goldberg Gender Classifications Benefiting Women as a Remedy Califano v. Webster Classifications Benefiting Women Because of Biological Differences Between Men and Women Nguyen v. Immigration & Naturalization Service E. Discrimination Against Non–United States Citizens 1. Strict Scrutiny as the General Rule Graham v. Richardson 2. Discrimination Against Noncitizens Related to Self-Government and the Democratic Process Foley v. Connelie Ambach v. Norwick 3. Congressional and Presidential Approved Discrimination 4. Undocumented Noncitizens and Equal Protection Plyler v. Doe F. Discrimination Against Nonmarital Children Laws Denying Benefits to All Nonmarital Children Laws That Provide a Benefit to Some Nonmarital Children G. Other Types of Discrimination: Only Rational Basis Review 1. Age Classifications Massachusetts Board of Retirement v. Murgia 2. Discrimination Based on Disability 3. Wealth Discrimination 4. Discrimination Based on Sexual Orientation Chapter 8 Fundamental Rights A. Introduction The Concept of Fundamental Rights The Ninth Amendment Procedural Due Process B. Framework for Analyzing Fundamental Rights First Issue: Is There a Fundamental Right? Second Issue: Is the Constitutional Right Infringed? Third Issue: Is There a Sufficient Justification for the Government’s Infringement of a Right? Fourth Issue: Is the Means Sufficiently Related to the Purpose? C. Constitutional Protection for Family Autonomy 1. The Right to Marry Loving v. Virginia Obergefell v. Hodges 2. The Right to Custody of One’s Children Stanley v. Illinois Michael H. v. Gerald D. 3. The Right to Keep the Family Together Moore v. City of East Cleveland, Ohio 4. The Right of Parents to Control the Upbringing of Their Children Meyer v. Nebraska Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary Troxel v. Granville D. Constitutional Protection for Reproductive Autonomy 1. The Right to Procreate Buck v. Bell Skinner v. Oklahoma ex rel. Williamson 2. The Right to Purchase and Use Contraceptives Griswold v. Connecticut Eisenstadt v. Baird 3. The Right to Abortion Roe v. Wade Planned Parenthood v. Casey Dobbs v. Jackson Women’s Health Organization E. Constitutional Protection for Medical Care Decisions Right to Refuse Treatment Cruzan v. Director, Missouri Department of Health Right to Physician-Assisted Death Washington v. Glucksberg Vacco v. Quill F. Constitutional Protection for Sexual Orientation and Sexual Activity Lawrence v. Texas G. Constitutional Protection for Control over Information Whalen v. Roe H. The Second Amendment Right to Bear Arms District of Columbia v. Heller New York State Rifle and Pistol Association v. Bruen I. Constitutional Protection for Travel Saenz v. Roe Restrictions on Foreign Travel J. The Right to Vote 1. The Right to Vote as a Fundamental Right 2. Restrictions on the Ability to Vote Poll Taxes Harper v. Virginia State Board of Elections Property Ownership Requirements Kramer v. Union Free School District Literacy Tests Prisoners’ and Convicted Criminals’ Right to Vote Requirement for Photo Identification for Voting Crawford v. Marion County Election Board 3. Dilution of the Right to Vote Reynolds v. Sims 4. The Ability of State Courts to Enforce State Constitutions: The Independent State Legislature Theory Moore v. Harper 5. Counting “Uncounted” Votes in a Presidential Election: Bush v. Gore The Events Leading to Bush v. Gore Bush v. Gore Issues to Consider Concerning Bush v. Gore K. Constitutional Protection for Access to Courts Filing Fees Boddie v. Connecticut United States v. Kras Prisoners’ Right of Access to the Courts Bounds v. Smith Lewis v. Casey L. Constitutional Protection for a Right to Education San Antonio Independent School District v. Rodriguez M. Procedural Due Process 1. What Is a “Deprivation”? Is Negligence Sufficient to Constitute a Deprivation? Daniels v. Williams County of Sacramento v. Lewis When Is the Government’s Failure to Protect a Person from Privately Inflicted Harms a Deprivation? DeShaney v. Winnebago County Department of Social Services 2. Is It a Deprivation of “Life, Liberty, or Property”? The “Rights-Privileges” Distinction and Its Demise Goldberg v. Kelly What Is a Deprivation of Property? Board of Regents of State Colleges v. Roth What Is a Deprivation of Liberty? Reputation as a Liberty Interest Goss v. Lopez Paul v. Davis Liberty Interest for Prisoners Sandin v. Conner 3. What Procedures Are Required? Mathews v. Eldridge Government Employment Family Rights Substantive and Procedural Due Process: The Relationship District Attorney’s Office for the Third Judicial District v. Osborne Chapter 9 First Amendment: Freedom of Expression A. Introduction 1. Historical Background 2. Why Should Freedom of Speech Be a Fundamental Right? a. Self-Governance b. Discovering Truth c. Advancing Autonomy d. Promoting Tolerance e. Conclusion 3. The Issues in Free Expression Analysis B. Free Speech Methodology 1. The Distinction Between Content-Based and Content-Neutral Laws a. The Importance of the Distinction Reed v. Town of Gilbert City of Austin, Texas v. Reagan National Advertising of Texas b. How Is It Determined Whether a Law Is Content-Based? The Requirement for Viewpoint Neutrality Matal v. Tam Subject-Matter Restrictions Content-Neutral Laws c. Problems in Applying the Distinction Between Content-Based and Content-Neutral Laws i. Permissible Purposes and Content Neutrality City of Renton v. Playtime Theatres, Inc. ii. When the Government Must Make Content-Based Choices National Endowment for the Arts v. Finley iii. Government Speech Pleasant Grove City, Utah v. Summum Walker v. Texas Division, Sons of Confederate Veterans 2. Vagueness and Overbreadth a. Vagueness Coates v. City of Cincinnati b. Overbreadth Schad v. Borough of Mount Ephraim c. Relationship Between Vagueness and Overbreadth Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc. 3. Prior Restraints a. What Is a Prior Restraint? b. Are Prior Restraints Really So Bad? i. Court Orders as a Prior Restraint Near v. State of Minnesota ex rel. Olson ii. Court Orders to Protect National Security New York Times Co. v. United States iii. Court Orders to Protect Fair Trials Nebraska Press Association v. Stuart iv. Court Orders Seizing the Assets of Businesses Convicted of Obscenity Violations Alexander v. United States c. Licensing as a Prior Restraint Lovell v. City of Griffin, Ga. i. Important Reason for Licensing ii. Clear Standards Leaving Almost No Discretion to the Government City of Lakewood v. Plain Dealer Publishing Co. iii. Procedural Safeguards 4. What Is an Infringement of Freedom of Speech? Civil Liability and Denial of Compensation for Speech Prohibitions on Compensation United States v. National Treasury Employees Union Compelled Speech West Virginia State Board of Education v. Barnette National Institute of Family & Life Advocates v. Becerra 303 Creative LLC v. Elenis Rumsfeld v. Forum for Academic & Institutional Rights, Inc. McIntyre v. Ohio Elections Commission Unconstitutional Conditions Speiser v. Randall Rust v. Sullivan Legal Services Corp. v. Velazquez Government Pressures C. Types of Unprotected and Less-Protected Speech 1. Incitement of Illegal Activity a. The “Clear and Present Danger” Test Schenck v. United States Frohwerk v. United States Debs v. United States Abrams v. United States b. The Reasonableness Approach Whitney v. California c. The Risk Formula Approach Dennis v. United States d. The Brandenburg Test Brandenburg v. Ohio Holder v. Humanitarian Law Project 2. True Threats Counterman v. Colorado 3. Fighting Words, the Hostile Audience, and the Problem of Racist Speech a. Fighting Words Chaplinsky v. New Hampshire i. Narrowing the Fighting Words Doctrine ii. Fighting Words Laws Invalidated as Vague and Overbroad Gooding v. Wilson iii. Narrow Fighting Words Laws as Content-Based Restrictions R.A.V. v. City of St. Paul, Minnesota b. The Hostile Audience Cases The Problem of Racist Speech Virginia v. Black 4. Sexually Oriented Speech a. Obscenity i. Supreme Court Decisions Finding Obscenity Unprotected Roth v. United States Paris Adult Theatre I v. Slaton Miller v. California ii. Should Obscenity Be a Category of Unprotected Speech? iii. Should There Be a New Exception for Pornography? b. Child Pornography New York v. Ferber c. Protected but Low-Value Sexual Speech i. Zoning Ordinances Young v. American Mini Theatres, Inc. ii. Nude Dancing iii. Should There Be Such a Category as Low-Value Sexual Speech? d. Government Techniques for Controlling Obscenity and Child Pornography Stanley v. Georgia Osborne v. Ohio e. Profanity and “Indecent” Speech Cohen v. California i. The Broadcast Media Federal Communications Commission v. Pacifica Foundation ii. Telephones iii. The Internet Reno v. American Civil Liberties Union iv. Cable Television 5. A New Exception for Violent Speech? United States v. Stevens Brown v. Entertainment Merchants Association 6. Commercial Speech a. Constitutional Protection for Commercial Speech Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. Overview of the Section b. What Is Commercial Speech? Bolger v. Youngs Drug Products Corp. Sorrell v. IMS Health Inc. c. The Test for Evaluating Regulation of Commercial Speech Central Hudson Gas & Electric Corp. v. Public Service Commission of New York Is Least Restrictive Alternative Analysis Applicable? d. Advertising of Illegal Activities e. False and Deceptive Advertising f. Advertising That Inherently Risks Deception Restrictions on Trade Names Attorney Solicitation of Prospective Clients Solicitation by Accountants g. Regulating Commercial Speech to Achieve Other Goals i. “For Sale” Signs on Houses ii. Alcohol Products 44 Liquormart, Inc. v. Rhode Island iii. Tobacco Products iv. Gambling v. Advertising by Lawyers and Other Professionals 7. Reputation, Privacy, Publicity, and the First Amendment: Torts and the First Amendment a. Defamation i. Public Officials as Defamation Plaintiffs New York Times Co. v. Sullivan ii. Public Figures as Plaintiffs Gertz v. Welch iii. Private Figures, Matters of Public Concern iv. Private Figures, Matters Not of Public Concern v. Conclusion b. Intentional Infliction of Emotional Distress Hustler Magazine v. Falwell Snyder v. Phelps c. Public Disclosure of Private Facts Cox Broadcasting Corp. v. Cohn Information from Nongovernment Sources d. Right of Publicity 8. Conduct That Communicates a. What Is Speech? b. When Is Conduct Communicative? c. When May the Government Regulate Conduct That Communicates? i. The O’Brien Test United States v. O’Brien ii. Flag Desecration Texas v. Johnson iii. Spending Money as Political Speech Buckley v. Valeo Criticisms of Buckley The Continuing Distinction Between Contributions and Expenditures When Are Contribution Limits Too Low? Are Corporate Expenditures Protected Speech? First National Bank of Boston v. Bellotti Citizens United v. Federal Election Commission The Constitutionality of Public Financing of Elections Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett D. What Places Are Available for Speech? 1. Government Properties and Speech a. Initial Rejection and Subsequent Recognition of a Right to Use Government Property for Speech b. What Government Property and Under What Circumstances? c. Public Forums i. Content Neutrality Police Department of the City of Chicago v. Mosley ii. Time, Place, and Manner Restrictions Hill v. Colorado McCullen v. Coakley iii. Licensing and Permit Systems iv. No Requirement for Use of the Least Restrictive Alternative Ward v. Rock Against Racism d. Designated Public Forums e. Limited Public Forums Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez f. Nonpublic Forums 2. Private Property and Speech 3. Speech in Authoritarian Environments: Military, Prisons, and Schools a. Military Parker v. Levy b. Prisons Thornburgh v. Abbott c. Schools Tinker v. Des Moines Independent Community School District Morse v. Frederick Mahanoy Area School District v. B.L. d. The Speech Rights of Government Employees Garcetti v. Ceballos E. Freedom of Association 1. Laws Prohibiting and Punishing Membership 2. Laws Requiring Disclosure of Membership NAACP v. State of Alabama ex rel. Patterson Campaign Finance Disclosure 3. Compelled Association Janus v. American Federation of State, County & Municipal Employees, Council 31 Board of Regents of the University of Wisconsin System v. Southworth 4. Laws Prohibiting Discrimination Roberts v. United States Jaycees Boy Scouts of America v. Dale F. Freedom of the Press 1. Introduction: Are There Special Rights for the Press? 2. Freedom of the Press as a Shield to Protect the Press from the Government a. Taxes on the Press Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue b. Application of General Regulatory Laws c. Keeping Reporters’ Sources and Secrets Confidential Branzburg v. Hayes d. Laws Requiring That the Media Make Access Available 3. Freedom of the Press as a Sword: A First Amendment Right of Access to Government Places and Papers? a. Access to Judicial Proceedings Richmond Newspapers v. Virginia b. Prisons Houchins v. KQED Chapter 10 First Amendment: Religion A. Introduction 1. Constitutional Provisions Concerning Religion and the Tension Between Them 2. History in Interpreting the Religion Clauses 3. What Is Religion? The Attempt to Define Religion Under the Selective Service Act United States v. Seeger Requirement for Sincerely Held Beliefs United States v. Ballard The Relevance of Religious Dogma and Shared Beliefs B. The Free Exercise Clause 1. Introduction: Free Exercise Clause Issues 2. The Law Before Employment Division v. Smith a. Government Benefit Cases b. Compulsory Schooling c. Cases Rejecting Exemptions Based on the Free Exercise Clause 3. The Current Test Employment Division, Department of Human Resources of Oregon v. Smith 4. Supreme Court Decisions Clarifying the Employment Division v. Smith Test a. When Is a Law Not “Neutral”? Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission