Constitutional Law II

A discriminatory effect alone does not violate equal protection, but a discriminatory purpose can, and a discriminatory effect is evidence of a discriminatory purpose.

The U.S. Constitution does not prevent private racial discrimination, so neither state nor the federal governments have a duty to outlaw it.

States can outlaw private discrimination under their police powers however, and the federal government can under the commerce clause.

States can enforce private racially restrictive covenants of the sale of property, but they do not have to.

• (Actually, they cannot enforce such things because of the state action doctrine.)

States can generally repeal anti-discrimination laws, but they may not be able to if it is seen as intending to authorize racial discrimination.

The Establishment Clause of the First Amendment states that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

Acknowledgment of religion is okay as long as it does not reach endorsement.

Two approaches have been taken to the Free Exercise Clause when one's religious belief is burdened:

1. Heightened scrutiny
2. Laws of general applicability
   • If your religious belief breaks a law that applies to everyone, it will not get you out of jail.
     • Exceptions:
       • Hybrid cases (such as involving parental rights too)
       • Unemployment compensation
       • If the crime is symbolic expression
       • If the law targets religion

RFRA is a federal law that "ensures that interests in religious freedom are protected." It has been held to be unconstitutional as applied to the states, but it can bind federally.

• It thus applies strict scrutiny to any federal action that substantially burdens one's free exercise of religion.

If a private organization performs municipal functions (like a company town), it is treated as a state action and thus cannot discriminate on the basis of religion.

• Utility companies are not included in this.
• Shopping centers have been treated as state actors and have been required to not prohibit people's free exercise of religion therein.
• This includes organizations with an "inextricable entanglement" of government and private actors, like with a parking garage or restaurant or athletic association.

Enforcing restrictive covenants made between private parties is government action and thus prohibited by the state action doctrine.

The political process doctrine falls under the state action doctrine.

The Thirteenth Amendment outlaws slavery. The Fourteenth Amendment just addresses state action, not private discrimination.

Discrimination in public accommodations is not a badge or incident of slavery, but discrimination in housing sales is.

The Thirteenth Amendment is interpreted by Congress now, not the courts. The Fourteenth is interpreted by the courts.

However, Congress can regulate private acts under the Commerce Clause.

The Fourteenth Amendment is self-executing in some areas, such as the exclusion of evidence; but Congress can also provide remedies, such as providing monetary for violations.

Under the Fourteenth and Fifteenth Amendments, Congress can punish states that have historically discriminated and outlaw their constitutional laws (like literacy tests for voting) as a preventative measure to prevent them from going farther and actually unconstitutionally discriminating.

Congress cannot revoke sovereign immunity under the Commerce Clause, but it can under the Fourteenth Amendment if the state violates the Constitution or has a history of violations and the law satisfies proportionality and congruity.

The Supreme Court theoretically could create new categories of unprotected speech if it was shown the founders intended such speech to be unprotected, but it is very hesitant to do so. (The Chaplinsky test is descriptive, not prescriptive.)

Government employees' speech is not protected if it is within the scope of their employments or about personal matters at work.

You can be forced to pay for speech you disagree with if it is incident to a regulatory scheme or government speech.

Speech in criminal associations, like for conspiracies, is not protected.

Defamation is semi-protected, but it is not tested on.

Commercial speech is semi-protected if the regulation is overly broad.

If speech is restricted based on its content in a nonpublic forum, the court will apply a reasonableness test. If it is a designated limited public forum, intermediate scrutiny or a reasonableness test is applied.

If a government employee speaks as a citizen or about a matter of public concern outside the scope of his work, a balancing test is applied.

Student speech can be restricted if it interrupts school or if its content promotes certain viewpoints.

Any speech that is not unprotected speech or semi-protected speech is protected speech and thus regulations of such speech are subject to strict scrutiny.

Examples include:

• Offensive speech (Like the F-word)
  • Though it may be indecent speech
• Pornography
  • Though it may be indecent speech
• Virtual child pornography
  • Unless it meets the Miller standard for obscenity
• False speech that does not harm or benefit
• Intentional infliction of emotional distress of a public figure
• Compelled speech, whether the government's or a third-party's message
• An association if it is formed for speech purposes
• Viewpoint-based discrimination
• Content-based discrimination in public forums and designated unlimited public forums
• Sometimes content-based discrimination in designated limited public forums
• Prior restraints
• Campaign Expenditure

  Campaign expenditures count as speech and are protected.

• Judicial campaign speech

If a regulation on speech is neutral as to its content, it is allowed as long as it falls within one of three categories:

1. Regulating the time, place, and manner of speech
   • Although it must comport with the forum analysis
2. Expressive Conduct

   The government can regulate expressive conduct for its non-communicative impact. According to O'Brien, to do this, the regulation must:

   1. Be within the government's enumerated powers
   2. Further a substantial government interest
   3. Not be a pretext for regulating conduct
   4. Be a less restrictive means

   The expressive conduct doctrine only applies to non-serious criminal conduct.

   This conflicts with the free exercise doctrine.

3. Secondary Effects

   If the government pretends to target the secondary effects of speech, but is really discriminating based on the content of speech, it will receive intermediate scrutiny.

   This usually comes up with regulations of adult businesses.

There are four types of forums:

Governments, through their employees, must engage in speech to execute their powers, however public employees also have First Amendment speech rights.

To resolve cases involving speech of government employees, courts look at three distinctions:

1. Speaking as public employee or citizen
2. Speaking about matters of public or private concern
3. Speaking about matters within or outside the scope of employment

Depending on where the speech falls, the speech will either be afforded no protection or the government, employee, and public interests will be balanced to see if it should be protected.

The government is not allowed to penalize speech it disagrees with, but it is allowed to subsidize speech that it does agree with. (Though this contravenes Justice Jackson's statement in Barnette.)

• But it cannot fund speech just for the diversity of different private viewpoints.
• If it subsidizes everyone but a few people though, this will likely be found to be a penalty.

The government can also therefore discriminate, even based on viewpoint, in deciding who to hire to speak.