Constitutional Law II(A)
Past Assignments and Questions

Fall 2017
Professor Schnably

 
Assignments for the week of August 14:

  • Tuesday, August 15: Please read the material in Sections I.A and I.B of the Syllabus. With respect to Section I.A, consider:

    • Note that you do not need to read every page of CB lix-lxxiii and Supp. 1-118, 121-132 (the U.S., Canadian, and South African constitutions, plus the set of proposed U.S. amendments) sequentially. Read these Questions to see how to proceed with respect to them. You do need to read Supp. 119-120 in connection with the Levin amendments.
    • The purpose of giving you two other countries’ constitutions, plus a set of proposed amendments to the U.S. Constitution (Levin’s), is to give you some sense of how constitutions can differ in the protection of rights -- and how they can resemble each other in that respect.
      • While many different examples could be used, Canada is interesting because it is a neighbor with a common law background.
      • South Africa’s constitution is often taken as a model for modern constitution-drafting.
      • The set of U.S. constitutional amendments proposed by Levin may typify the kinds of amendments many proponents of a U.S. constitutional convention have in mind; thus it is useful to treat the U.S. constitution as altered by those amendments as a third, hypothetical constitution.
    • As noted, you don’t need to read the entire U.S., Canadian and South African constitutions word for word, but you should spend some time skimming through each of them to get a good sense of them. You need to do more than just flip through the pages, but something less than a word-for-word read. As you are going through them, think about the ways in which the underlying approaches to constitution-making vary.
    • First, look through each of the three constitutions (U.S., Canadian, South African) to get an overall sense of what they cover. For each, make sure you at least focus on the provisions that cover:
      1. the structure of government, with a particular focus on the courts and judicial independence
      2. the recognition of rights and related provisions (such as the suspension of rights, or limitations on rights)
      3. revision of the constitution
    • Why might all three aspects be particularly relevant to the study of the rights-protecting provisions of a constitution?
    • Here are some more specific guides for each constitution:
      • U.S.: Skim each Article (I-VII) to see what general subject it covers. As to the three specific topics above, consider:
        1. Structure of government/judiciary. Clearly, Art. III is important to the structure and independence of courts, but what other provisions are also important? Do the provisions adequately provide for the protection of rights?
        2. Rights. Clearly, the Bill of Rights is important.
          • Are there other rights provisions, not in the Bill of Rights? What are they?
          • What kinds of rights are protected in the U.S. constitution? Consider the following kinds of distinctions often drawn among rights:
            • Individual versus group or collective rights
            • Economic, social, and cultural rights versus civil and political rights
            • Affirmative versus negative rights
          • Are the rights recognized in the U.S. constitution subject to limitation? What in the text helps you answer that question?
          • Is there a provision for suspension of rights?
          • Are there other aspects of the constitution that might be relevant to the protection of rights? For example, federalism?
        3. Revision. Clearly, Art. V relates to amendments. Is that all you need to know about changes to the U.S. Constitution?
      • Canada: Note that the constitution has two main parts: the Constitution Act, 1867 (Supp. 3-25), and the Constitution Act, 1982 (Supp. 25-35). What subjects does each cover? As to the three specific topics above, consider:
        1. Structure of government/judiciary. How do Sections 96-101 of the Constitution Act, 1867 (Supp. 16) compare to Article III of the Constitution? Do the provisions adequately provide for the protection of rights?
        2. Rights. How does the Canadian Charter of Rights and Freedoms compare with the U.S. constitution on each of issues set out above (U.S. constitution) relating to rights?
          • What kinds of rights are protected in the Canadian Charter? Consider the following kinds of distinctions often drawn among rights:
            • Individual versus group or collective rights
            • Economic, social, and cultural rights versus civil and political rights
            • Affirmative versus negative rights
          • Are the rights recognized in the Canadian Charter subject to limitation? Consider Part I § 1 (Supp. 26). Would it be better if the U.S. Constitution had a similar provision?
          • Is there a provision for suspension of rights? Does Part I, § 33 (Supp. 30) count as a suspension of rights provision? Would you support a similar provision in the U.S. Constitution?
          • Are there other aspects of the constitution that might be relevant to the protection of rights? For example, federalism? For this, you need to check the Constitution Act, 1867 (Supp. 3-25), especially §§ 91-93 (Supp. 13-15).
        3. Revision. Compare the Amendment Procedures in the Constitution Act, 1982 (Part V, Supp. 31-33) with Art. V of the U.S. Constitution. See also Const. Act, 1982, § 35.1. (Supp. 41). What are the advantages and disadvantages of each, especially thinking about their implications for the protection of rights.
      • South Africa: Go through the Constitution, noting the major divisions:
        • Chapters 1 & 2: Bill of Rights (Supp. 36-47)
        • Chapters 3-13 Structure of Government (Supp. 47-118)
        Chapter 8 (Supp. 79-84) relates specifically to the courts, but note also §§ 80 (Supp. 59-60) and 122 (Supp. 68-69). Note also Chapter 9 (“State Institutions Supporting Constitutional Democracy”) (Supp. 84-87). Would you support adding similar institutions to the U.S. Constitution? Also, consider:
        1. Structure of government/judiciary. How do the provisions on the judiciary compare with those in the U.S. and Canadian constitutions? Do they adequately provide for the protection of rights? Which is the best?
        2. Rights. How do the South African Constitution’s Founding Provisions (Chapter 1) and the Bill of Rights (Chapter 2) (Supp. 36-47) compare with the U.S. and Canadian constitution on each of issues relating to rights?
          • What kinds of rights are protected in the South African Constitution? Consider the following kinds of distinctions often drawn among rights:
            • Individual versus group or collective rights
            • Economic, social, and cultural rights versus civil and political rights
            • Affirmative versus negative rights
          • Are the rights recognized in the South African Constitution subject to limitation? Consider § 36 (Supp. 44). Would it be better if the U.S. Constitution had a similar provision?
          • Note the State of Emergency provision (§ 37) (Supp. 44-46). Be prepared to discuss its provisions. How does the South African Constitution compare to the U.S. and Canadian constitutions in this respect? Would you support a similar provision in the U.S. Constitution?
          • Would it be useful, in your view, for all constitutions to have provisions like §§ 38 and 39 (Enforcement and Interpretation of Bill of Rights) (Supp. 46-47)?
          • Are there other aspects of the constitution that might be relevant to the protection of rights? For example, federalism? For this, you need to check Chapter 6 (Federalism) (Supp. 64-75). Pay particular attention to § 144 (certification of provincial constitutions) (Supp. 73-74) and to § 146 (conflict between federal and provincial legislation) (Supp. 74).
        3. Revision. Compare the Amendment Procedures in § 74 (Supp. 55-56) with those in the U.S. and Canadian constitutions. Take special note of § 167(4)(d) (Supp. 80): should the Canadian and U.S. Constitutions have such a provision? How do they differ? What are the advantages and disadvantages of each (especially thinking about their implications for the protection of rights)?
      • Once you’ve gotten a sense of each of the three constitutions, consider also this general issue: Does any one of the constitutional texts seem more to you like what a constitution should look like than the others? Why? For example, should constitutional language be broad and sweeping? Should there be tables or schedules in constitutions? Why or why not? For each constitution, identify at least one provision that is of a type that you think either clearly does not belong in a constitution, or at least arguably does not (and consider the reason(s) for your selections).
      • What limits are there to discerning from the texts the actual differences on matters relating to structures of government, rights, and revision? Does it matter what the text is at all? A little? A lot?
      • With respect to the U.S. Constitution and proposed amendments, do you think the constitution today is in need of major, systematic revision? Why or why not? In thinking about this question, consider anything you think is relevant, but at least consider:
        • Note that Article V (CB lxvi) provides that the legislatures of three-quarters of the States can call a Convention for Proposing Amendments. Would you support such a call? Why or why not?
        • Are there provisions in the Canadian or South African constitutions that you would like to see incorporated into the U.S. constitution?
        • Are there other changes you would like to see made to the U.S. Constitution? What about expanding the Bill of Rights to include types of rights not expressly included in it (e.g., rights to housing or education or health care)?
        • Consider the amendments proposed by Levin. Are there ones you would favor? Oppose? Consider that some actual amendments have relatively limited effect (like the Eighteenth Amendment (Prohibition)) and others much broader effect, possibly changing the nature of the Constitution (for example, Amendments I-X, or the Thirteenth, Fourteenth, and Fifteenth Amendments). Would adoption of the amendments proposed by Levin change the nature of U.S. constitution, in your view? Why or why not?
        • Note that Levin does not propose any express amendments to the Bill of Rights (Amendments 1-10) or other provisions generally thought of as rights-protecting (parts of Art. I § 9 and 10; Art. IV § 4; Amendments 13, 14, 15 (the Reconstruction Amendments); Amendments 19, 23, 24, 26). Does that mean that they would have no impact on the protection of rights? Why or why not, in your view?

  • Thursday, August 17: We will complete our discussion of the material in Section I.A (questions above), and then move on to Section I.B (previously assigned). We will discuss the material in Section II.A.1 of the Syllabus.

    With respect to Section I.B, consider:

    • Read the complaint in Knight First Amendment Institute at Columbia University v. Donald J. Trump (Supp. 133-143).
    • Looking just at the texts of the U.S., Canadian, and South African constitutions, how would you expect the case to come out under each of those constitutions? Does one handle it better than the other?
    • If you are interested, you can read the Davison case now (Supp. 144-153). It relates to a local government official banning a critic from her Facebook page. But for now it is optional. (We will return to these issues later in the semester.)

    With respect to Section I.A.1, consider:

    • Should courts look to natural law in interpreting the constitution? Is it compatible with the very idea of basic human rights that they might be subordinate to a constitutional text that inadequately protected them or even went counter to them? Consider, for example, the U.S. Constitution’s recognition (of slavery at least implicitly) when it was first adopted. Would a court have justified in invalidating slavery before the Civil War, based on natural law?
    • What are the problems with recognizing natural law, as laid out in Justice Iredell’s opinion in Calder v. Bull?
    • Consider the post-Civil War cases leading up to Lochner. How did they set the stage for Lochner?
    • What was -- or might have been -- the aim of the statute at issue in Locher? Note that the Court considered more than one possible aim.
    • Did the Court consider the actual aim of the New York legislature or what it might have been aiming at? What is the relevance of the Court’s discussion of pretext?
    • How close a relationship did the Court require between the statute’s aim(s) and the means chosen -- the “means” being the rule prohibiting bakery employees from working more than 60 hours a week? Would you describe the Court as employing “strict scrutiny” or “minimal scrutiny”? What do those terms mean? What kind of scrutiny did the dissents apply?
    • How does the Court distinguish Holden v. Hardy (cited at CB 488 & n.1)?

 
Assignments for the week of August 21:

  • Tuesday, August 22: We completed our discussion of the material in Section II.A.1 (Lochner), and then moved on to Section II.A.2 (The Demise of Lochner). With respect to Section II.A.1, consider:

    • What was -- or might have been -- the aim of the statute at issue in Lochner? Note that the Court considered more than one possible aim.
    • Did the Court consider the actual aim of the New York legislature or what it might have been aiming at? What is the relevance of the Court’s discussion of pretext?
    • How close a relationship did the Court require between the statute’s aim(s) and the means chosen -- the “means” being the rule prohibiting bakery employees from working more than 60 hours a week? Would you describe the Court as employing “strict scrutiny” or “minimal scrutiny”? What do those terms mean? What kind of scrutiny did the dissents apply?
    • How does the Court distinguish Holden v. Hardy (cited at CB 488 & n.1)?
    • Was Lochner correct, in your view?
    • If Lochner was not correct, is the problem that:
      • There is no reference to freedom of contract in the text of the Fourteenth Amendment?
      • Freedom of contract is not truly part of the the freedom that the constitution protects?
      • Freedom of contract is an important freedom, but was interpreted too narrowly or unrealistically (or without enough deference to the state legislature)?
    • Did the New York statute constitute “intervention” into private affairs?
    • During the Lochner era the Court did not strike down all state regulations. What ones did it uphold? Does the fact that some regulations were upheld mean that any concerns about judicial second-guessing of state legislative decisions were unwarranted?
    • What effect did the adoption of the Nineteenth Amendment (women’s suffrage) have on the Court’s inclination to uphold regulations that were protective of women in workplace?

    With respect to Section II.A.2, consider:

    • In Nebbia, what aim might the legislature have had in fixing a minimum price for milk? Isn’t a minimum price harmful to consumers?
    • What did the Nebbia Court say about whether the policy of setting a minimum price would be likely to achieve its aims? What was the majority’s respose to the dissent?
    • With Nebbia and West Coast Hotel v. Parrish, the Court is typically said to have adopted a “rational basis” approach to economic regulation, one that entails “minimal scrutiny” of contested legislation. What does this approach represent with regard to the Court’s examination of both the aim of contested legislation and the relationship of the means chosen to the aim? How is this approach different from the Court’s approach in the Lochner era? Which approach is better? More predictable?
    • What approach to judicial review does footnote 4 of Carolene Products set out? On what theory of the role of the courts does it appear to be based?
    • Was Williamson v. Lee Optical correctly decided? Why is permissible, constitutionally, for a legislature to make someone go to an ophthalmologist or optometrist to get replacement or duplicate lenses when an optician could make the replacement or duplicate just as well? Why is it permissible for a state to limit debt adjusting to lawyers?
    • To what extent does the application of minimal scrutiny in economic regulation cases ignore Justice Jackson’s admonition in Railway Express Agency that “we are much more likely to find arbitrariness in the regulation of the few than of the [many].” (CB 647) Given his perspective, why did he nonetheless agree with the Court’s upholding of the legislation?
    • Note that minimal scrutiny or minimum rationality review, at least in its classic form, entails deference to both legislative ends and the relationship between ends and means.

  • Thursday, August 24: We covered the material in Section II.A.3.a, and in Section II.A.3.b with the exception of Supp. 153-159 (Powers and St. Joseph Abbey).

    With respect to the material in Section II.A.3.a, consider:

    • Moreno (CB 649) is the origin of what might be called the “bare desire to harm an unpopular group” test.
      • In a democracy, what is wrong with a legislature’s decision to disadvantage a group the majority thinks should be subjected to disadvantaged, so long as that group is not defined by race, gender, religion, national origin, sexual identity, and other similar characteristics?
      • Is the top “1 percent” an unpopular group under Moreno? Would a tax increase on the wealthiest segment, predicated on the notion that they have too great a share of income and wealth, be unconstitutional under Moreno? Why or why not?
      • Is it permissible for a legislature to favor a particular industry or economic group? Suppose the legislature in a largely agricultural state, hoping to nurture a new Silicon Valley, decides to provide special subsidies or tax breaks to tech companies. Is benefitting that group different from harming agriculture? What if the budgetary pressures occasioned by the subsidies for tech companies lead to a cutback in tax breaks on agricultural land. Is that cutback constitutional under Moreno?
      • What, besides the popularity of a group, might the Court have been considering in Moreno?
      • Can Beazer be reconciled with Moreno?
    • Romer (CB 553) and Cleburne (CB 799) represent two cases involving what we would usually think of as non-economic regulation cases. The holding was not that there was a violation of substantive due process, but of equal protection. As you can see from the cases, the Court purported in each to apply minimal scrutiny, yet found a violation. How did it reach those results?

    With respect to Section II.A.3.b, consider:

    • Do the Court’s decisions regarding punitive damages (CB 505-508) represent a return to Lochner? Why or why not? And if the answer is yes, is that a reason for criticizing them?
    • How is a trial court to determine, under these cases, whether the size of the punitive damage awards violates the constitution as a “grossly excessive” or “an arbitrary deprivation of property”? Should the constitution be read to (a) place numerical ratio limits on the size of punitive damages, or (b) forbid taking harm to non-parties into account in setting the size of punitive damages?
    • Would the 1 to 1 ratio in Exxon Shipping (CB 507) be justifiable as a constitutional ruling? How can that be squared with the decision on property taxes in Allegheny Pittsburgh Coal (CB 650). Can that decision be squared with Nordlinger?
    • Should equal protection analysis be different if there is a “class of one” (Village of Willowbrook (CB 651))?
    • Consider the disagreement between Justice Rehnquist and Justice Marshall in Fritz (CB 652). Who has the better of the argument over whether minimum rationality review should have more “bite”? In particular, to what extent should the courts try to divine the legislature’s actual purpose and measure the statute against that purpose?
    • How would Moreno (CB 649) come out under the majority approach in Fritz (CB 652)?
    • In general, based on these economic cases (damages/regulation/benefits/taxation), how minimal do you think minimal scrutiny should be? Why?

 
Assignments for the week of August 28:

  • Tuesday, August 29: We completed our discussion of the material in Section II.A.3.b, and then moved on to Section II.B.1.a.

    With respect to Supp. 153-159 of Section II.A.3.b, consider:

    • State licensing regulations:
      • Powers (Supp. 154) and St. Joseph Abbey) (Supp. 158) come to different conclusions about the constitutionality of an Oklahoma statute and a Louisiana statute that were remarkably similar. Which court has the better of the argument in your view? [Note: On Supp. 156, right-hand column, in the fourth line of Judge Tymkovich’s concurrence, please delete the word “not,” which is a typo.]
      • Does St. Joseph Abbey suggest that the use of minimal scrutiny review to strike down statutes as rights-violating in Romer and Cleburne may entail a return to Lochner (now under the mantra of equal protection rather than substantive due process) and judicial invalidation of a wide range of economic regulations? How does that relate to Justice Holmes’s statement in his Lochner dissent that the constitution is not a libertarian document, at least as to economics? (“The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics.”) (CB 492)

    With respect to Section II.A.3.b, consider:

    • Consider the precursors to Griswold (Meyer and Pierce v. Society of Sisters). Note that they were decided during the Lochner era. Should the end of the Lochner era have drawn those decisions into doubt, too? Why or why not?
    • Pierce v. Society of Sisters held that the Fourteenth Amendment protects “the liberty of parents and guardians to direct the upbringing and education of [their] children.” The Court held that:
        “rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.”
      In other words, the aim of completely standardizing education through mandatory attendance at public schools was not a legitimate aim; thus the question of level of scrutiny did not arise. But what about state regulations that require that science, including evolution, be taught in all schools (public and private). How would you analyze this in terms of whether the parents’ rights are implicated; and (if there is a legitimate state purpose) what the level of scrutiny should be.
    • Consider Skinner v. Oklahoma: is there an absolute right not to be involuntarily sterilized? Should there be? Does it depend on the permanence of the sterilization? What about a state requirement that a man or woman agree to contraceptive use as a condition of parole or probation where the individual has committed child abuse in the past? (E.g., surgical implant in a woman of Norplant, which can last five years.)
    • Griswold:
      • What is scope of the right to privacy the Court finds in Griswold? How much does it relate to the home? To marriage? Is it a general right to make certain sorts of decisions? What kinds of decisions?
      • What is the basis of the right? In what part or parts of the text of the constitution is the right to privacy grounded? How do the approaches taken by Justices Douglas, Goldberg, Harlan, and White differ? Which approach is better, in your view? Which approach best answers the arguments made in the dissents?
      • Would the approach suggested by footnote 4 of Carolene products have been useful in deciding the case?
      • Does Griswold represent a return to Lochner?
      • Would a gender discrimination approach have been better in Griswold?
      • Why would a statute so unusual (and which criminalized conduct by a very large number of citizens) remain on the books? Is this relevant to analysis of the constitutional question?
    • On what basis did the Court decide Eisenstadt v. Baird? Why not use substantive due process?
    • Make sure you understand the different rationales the Justices used in Carey v. Population Services International to find the New York statute unconstitutional. Given Griswold, why would Carey v. Population Services, Int’l be such a hard case that the Court could not agree on a majority opinion?

  • Thursday, August 31: We discussed the material in Section II.B.1.b. Consider:

    • What is the right to privacy on which Roe is based -- does it concern: bodily integrity? personal autonomy in critically important life decisions? reproductive autonomy?
    • How strongly rooted is Roe in Meyer, Pierce, Griswold, and Eisenstadt?
    • Are there any grounds for Roe based on a Carolene Products “footnote 4” analysis? E.g., the dangers of state centralization and control? Gender inequality?
    • The right to privacy is not absolute. What sort of interests on the part of the government permit the state to override a woman’s decision to have an abortion? At what point or points in the pregnancy?
    • Is the Court correct that it need not decide whether the fetus is a “person” in order to decide the case?
    • How were the following regulations of abortion handled under Roe’s holding?
      • Consent requirements
        • Parental consent or notice requirements
        • Spousal consent or notice requirements.
        • “Informed Consent” Requirements
          • A 24-hour waiting period for an abortion.
          • Mandatory provision by physician of information regarding the development of the fetus, possible viability, and possible complications from abortion
      • State and Federal Funding-Related Limitations
        • Denying funding to non-medically necessary abortions.
        • Denying funding to medically necessary abortions except in cases of rape, incest, or where the woman’s life is threatened (the Hyde Amendment).
        • Forbidding medical providers that receive government funding from counseling women about abortion.
      • Other Regulations
        • Requirements that any abortions be performed in a hospital
        • Requirements that any abortions be first approved by a hospital staff committee
        • Forbidding public facilities from performing abortions even where the woman would pay for the procedure herself.

 
Assignments for the week of September 4:

  • Tuesday, September 5: We discussed the material in Section II.B.1.c. Consider:

    • To what factors does Casey attribute the Court’s decision that Roe should be upheld under stare decisis, but Lochner and Plessy were correctly overruled? Changes in facts? Changes in judgments about society? Societal acceptance of the decision? Political opposition to it?
    • Which statement better characterizes the substance of Casey’s holding:
      • “It is therefore imperative to adhere to the essence of Roe’s original decision, and we do so today.” (Justice O’Connor, writing for the majority).
      • “The joint opinion [retains] the outer shell of Roe, but beats a wholesale retreat from the substance of that case.” (Rehnquist, C.J., concurring in the judgment in part and dissenting in part)
    • How does Casey analyze each of the following restrictions? And how does that analysis differ from the approach taken in Roe?
      • A 24-hour waiting period for an abortion.
      • A spousal notification requirement.
      • A parental consent requirement for those under 18 (if not emancipated).
      • Detailed and burdensome report-filing requirements imposed on abortion providers.
    • To what extent should the Court consider challenges to abortion statutes on a facial versus as-applied basis?
    • In what ways does the Court’s approach to abortion and the right to privacy in Gonzalez v. Carhart (CB 541) differ from its approach in Roe and Casey?
    • Does Stenberg v. Carhart (CB 540) survive the Court’s decision in Gonzalez v. Carhart?
    • In Whole Women’s Health v. Hellerstedt (CB Supp. 3), on what basis did the Court strike down the admitting privileges requirement and the surgical-center requirement that Texas H.B. 2 imposed? Was it consistent with the undue burden standard of Casey. What is your view of Justice Thomas’s charge that the majority transforms Casey into strict scrutiny? Why did Justice Alito and Chief Justice Roberts not join Justice Thomas’s opinion?

  • Thursday, September 7: Classes cancelled. Please refer to the University’s Emergency Preparedness site for more information: prepare.miami.edu.

 
Assignments for the week of September 11: Classes cancelled.

 
Assignments for the week of September 18:

  • Tuesday, September 19: No class.

  • Wednesday, September 20: No class. We of course do not meet on Wednesdays, but you may have other classes that meet this day, and this is the first day all Law School classes resume.

  • Thursday, September 21: This class was taped. Note: Normally they will be videotaped. Due to an error this class was audiotaped.

    We discussed the material in Sections II.B.2.a, II.B.2.b.i, and II.B.2.b.ii.

    With respect to the material in Section II.B.2.a, consider:

    • What is the constitutional grounding of the right to marry?
    • Given that it is the state which sets the terms of marriage and divorce, what level of judicial scrutiny is appropriate when challenges to those terms are brought before the courts? How should a court approach a challenge to a ban on polygamy -- i.e., to a law that limits marriage to couples?
    • Is Moore v. City of East Cleveland (CB 546) consistent with Belle Terre v. Boraas (CB 547)? Is Moore consistent with Troxel (CB 548)?
    • Who has the better of the arguments in Michael v. Gerald D. (CB 549) as to the appropriate level of generality at which to interpret and apply “tradition” in substantive due process cases?

    With respect to the material in Section II.B.2.b.i, consider:

    • How did the formulation of the issue by Justice White in Bowers (CB 551) differ from Justice Blackmun’s? At what level of generality should a court formulate an asserted substantive due process right when it is considering it?
    • Does Bowers (CB 551) show that tradition is a bad guide to substantive due process? If so, what should be the guide? Or did the Court misread tradition, or look to the wrong one?

    With respect to the material in Section II.B.2.b.ii, consider:

    • We have already gone over Romer (CB 553). Try to formulate a rationale that reaches the same holding, but overturns Bowers. How would that differ from the Romer Court’s actual reasoning?
    • What level of scrutiny does the Court apply in Lawrence v. Texas (CB 561)? Does the Court hold that:
      • Freedom in matters of sexual conduct is a fundamental right, which can be overridden only if necessary to achieve a compelling state interest; or
      • The Texas statute under challenge lacked any rational basis at all.
    • Is the issue in Lawrence better understood in terms of gender discrimination or privacy?
    • Does Lawrence logically entail striking down bans on same-sex marriage?
    • Should the Supreme Court look to the constitutional law of other countries, or to international human rights law, for guidance in interpreting the U.S. Constitution? Why or why not?

 
Assignments for the week of September 25:

  • Tuesday, September 26: We will discuss the material in Sections II.B.2.c, II.B.2.d, and III.A.1.a.i.

    With respect to Section II.B.2.c, consider:

    • What did DOMA provide? Did it apply to state law as well as federal law?
    • What, according to Justice Kennedy, are the proper roles of the states and the federal government regarding marriage and divorce?
    • The State of New York recognized Windsor and Spyer’s marriage in Canada as valid. The federal government did not recognize it. Was the federal government’s failure to do so a federalism violation, according to Justice Kennedy? What does Justice Scalia have to say on this point?
    • In what way did DOMA, according to Justice Kennedy, violate equal protection? What was the basis, according to him, for finding that violation? How much rested on (a) his view of the impact of DOMA; (b) New York’s recognition of same-sex marriage; (c) the unprecedented or unusual nature of Congress’s action in enacting DOMA? How does Chief Justice Roberts respond to Justice Kennedy with regard to (c)?
    • In what way did Justice Kennedy’s view of Congress’s intent relate to his observations about the proper allocation of roles between the states and the federal government regarding marriage?
    • Do you agree with Justice Scalia that the "Constitution does not forbid the government to enforce traditional moral and sexual norms"? Why or why not?
    • Chief Justice Roberts notes that when DOMA was enacted in 1996, no state recognized same-sex marriage. Is that relevant to its constitutionality in 2013? Why or why not?
    • What function might DOMA have had, according to Justice Scalia, other than a bare desire to harm an unpopular group?
    • Who has the better of the argument over whether the logic of Windsor entailed a constitutional duty on the part of states to recognize same-sex marriage -- Chief Justice Roberts, or Justice Scalia?
    • Is Windsor a substantive due process case masquerading as equal protection or some amalgam of equal protection and federalism? What level of scrutiny does it apply?
    • What is your view of Justice Alito’s argument that judicial recognition of same-sex marriage (a) could have profound, long-term effects that the Court is ill-equipped to understand or manage, and (b) deprives people of the popular sovereignty that democracy is supposed to guarantee?
    • Justice Alito lays out two visions of marriage -- the “traditional” or “conjugal” view, and the “consent-based” view. Then he says the “Constitution does not codify either of these views of marriage ... ” It’s left to the people to decide. Do you agree? What would you say to the assertion that his call for agnosticism on this question is in the same spirit as Justice Holmes’s statement in his Lochner dissent that a “constitution is not intended to embody a particular economic theory, whether of paternalism ... or of laissez faire” (CB 492) -- it’s up to the people to decide. If you agree with Justice Holmes in Lochner, must you agree with Justice Alito in Windsor?

    With respect to Section II.B.2.d, consider:

    • What changes in marriage over time does Justice Kennedy think are relevant to deciding the constitutionality of non-recognition of same-sex marriage?
    • What arguments does Justice Kennedy make in support of his assertion that the “reasons marriage is fundamental under the Constitution apply with equal force to same-sex marriage”(CB 582)?
    • Is Obergefell a substantive due process case or an equal protection case? Both? Neither? Why not decide it on the basis of equal protection along the lines of Loving v. Virginia (which held so-called anti-miscegenation statutes unconstitutional), here making the same holding for gender as Loving did for race?
    • What does Chief Justice Roberts mean that the decision “is an act of will, not legal judgment.” Given that the states were increasingly recognizing same-sex marriage, should recognition have been left to the political process?
    • What is your view of Scalia’s criticism of the majority opinion as being couched in a “pretentious” and “showy” style more appropriate to “poetry or inspirational pop-philosophy” than to law (CB 585)? Is the fact that Justice Kennedy’s words find their way into marriage ceremonies, see Jessica Gresko, Gay, straight couples say “I do” to Supreme Court’s words, Washington Times, Aug. 26, 2015, a sign that the Court was doing something other than law, or a sign that the opinion resonates with the traditions on which it claims to draw?
    • What is Chief Justice Roberts’s response to the argument that marriage has changed over time?
    • Is Chief Justice Roberts’s distinguishing of prior substantive due process holdings persuasive, in your view? Why or why not?
    • Does Obergefell require, as Chief Justice Roberts argues, serious consideration of plural marriage?
    • What is Justice Thomas’s criticism of the majority? What implications would it have for, say, Griswold?
    • How persuasive, in your view, is Justice Alito’s assertion that Obergefell marginalizes those who believe same-sex marriage is wrong in the same way that the “harsh treatment of gays and lesbians in the past” marginalized them?

    With respect to Section III.A.1.a.i, consider:

    • The Dred Scott Court assumes that the term “citizen” in Article III, § 2 cl. 1 must be given a uniform national meaning. Is this correct? What possible alternative might it have adopted?
    • The Court seeks to determine the meaning of the term “citizen” by determining the original intent of the framers. Which characterization, if any of the following, best comments on the Court’s holding:
      • The Court read the framers’ intent correctly; the constitution was predicated upon racist assumptions, and it was not the role of the Court to rewrite the constitution.
      • The Court read the framers’ intent correctly; but while the constitution was predicated upon racist assumptions, Dred Scott shows the error of using original intent as a guide.
      • The Court read the framers’ intent correctly; the constitution was predicated upon racist assumptions; original intent is the best approach to interpretation; but the Court had a moral obligation to hold otherwise than what correct interpretation of the constitution would dictate.
      • The Court read the framers’ intent incorrectly.
    • What is Justice Curtis’s criticism of the majority’s reading of Article III?
    • Having reached the Article III/subject matter jurisdiction issue, was it necessary for the Court to resolve the question of Scott’s status as a slave or free person?
    • What does the Court hold on the meaning of Article IV, § 3 (clauses 1 and 2)? (These are referred to in CB 446, 3d full paragraph.) In what other way could those clauses have been read? What is Justice Curtis’s criticism of the majority’s reading of Article IV?
    • Dred Scott holds that “an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law”? (There is a more heavily edited version of this statement in the last paragarph of Taney’s opinion (CB 446). Was this ruling necessary to the holding? What is Justice Curtis’s criticism of this statement?
    • Dred Scott was only the second time -- the first being Marbury v. Madison -- that the Court invalidated a federal statute. Chief Justice Taney is commonly thought to have believed the Court could settle the divisive political issues regarding slavery and the territories. Does Dred Scott show something about the unwiseness of venturing into highly contested political areas, or does it show that when the Court exercises its power to interpret the constitution the cost of a mistaken interpretation can be very high?
    • Apropos of Justice Scalia’s comment at CB 448 (note 3, second paragraph), see Josh Hicks and Ovetta Wiggins, Justice Taney defended slavery in 1857. Now his statue is gone from Md.'s State House, Washington Post, Aug. 18, 2017

  • Thursday, September 28: We completed our discussion of the material in Section III.A.1.a.i. In addition, we discussed the material in Sections III.A.1.a.ii.a) and III.A.1.a.ii.b).

    With respect to Section III.A.1.a.ii.a), consider:

    • In The Slaughter-House Cases (CB 449), on what part of the Fourteenth Amendment did the challengers to the slaughter-house monopoly base their constitutional challenge? How did Justice Miller respond to their argument?
    • In what way is the privileges and immunities clause of Art. IV § 2 relevant to the Fourteenth Amendment’s privileges and immunities clause, according to Justice Miller?
    • What does the Court hold regarding the relationship between the Fourteenth Amendment and the federal-state allocation of power? Why would that question matter for equal protection?
    • Does the intent of the framers of the Fourteenth Amendment support the Court’s holding?
    • What is Justice Field’s criticism of the majority’s reading of the privileges and immunities clause?

    With respect to Section III.A.1.a.ii.b), consider:

    • Civil Rights Cases (CB 854)
      • What was the basis for holding Congress to be lacking in the power under the Fourteenth Amendment to outlaw racial discrimination in hotels, theaters, and railroads?
      • How did the holding relate to the Court’s view on the effect of the Civil War, Reconstruction, and the Fourteenth Amendment on the federal-state balance of power?
      • Why was not racial discrimination less than two decades after the end of slavery not a “badge of slavery” according to the Court? What is the significance of this point for Congress’s power under the Thirteenth Amendment? What is Justice Harlan’s response?
      • What is Justice Harlan’s response to the majority’s reading of the Fourteenth Amendment?
      • Would it be accurate in your view to say, given the Slaughter-House Cases and the Civil Rights Cases, that the Court partially repealed the Fourteenth Amendment? Why or why not?
    • What would the reasoning of Strauder (CB 658) imply about a statute enacted in a majority-white state that excluded whites from serving on a jury?
    • Does the opinion in Plessy v. Ferguson (CB 659) require that the separate facilities be equal?
    • Does Plessy indicate that all state statutes mandating segregation or separation based on race would be upheld? What limits does it place on states?
    • What is the significance of the Court’s reference to voluntary commingling of people of both races? Does this support the majority’s reasoning or undermine it?
    • On what does Justice Harlan base his dissent in Plessy? What alternative grounds might there be for dissenting?

  • Friday, September 29, 2:00-3:20 pm (Room A110): Videotape. Please read the material in Sections III.A.1.b.i and III.A.1.b.ii.

    With respect to the material in Section III.A.1.b.i, consider:

    • Why, according to Brown, was the educational system characterized as “separate but equal” in violation of the Fourteenth Amendment? Would greater clarity in the Court’s opinion as to the theory on which Brown’s holding was based have promoted faster compliance with its holding? Undermined it? Made no difference?
    • What is the significance of the Court’s observation in Brown I that the intention behind the adoption of the Fourteenth Amendment with regard to segregation in public schools was uncertain? Consider in this regard the holding in companion case of Bolling v. Sharpe (CB 665) regarding the Fifth Amendment and segregation in D.C. public schools.
    • What is the relevance of the social science data the Court cites in its opinion in Brown I?
    • Of what relevance might the following be to the Court’s holding in Brown I?
      • The Cold War.
      • The fact that World War II, with the defeat of Nazi Germany, had ended less than a decade earlier.
    • Is the Court’s “all deliberate speed” approach in Brown II justified? Consider the following criticisms:
      • Constitutional violations should always be remedied immediately.
      • “All deliberate speed” encouraged southern white resistance to the holding of Brown I.
      • The Court overestimated or overstated the practical or administrative problems inherent in school desegregation.
      How valid do you think these criticisms of Brown II are? What alternatives did the Court have?
    • Did Cooper v. Aaron reaffirm Marbury or expand it? Did it clarify what Brown required?
    • “Freedom of choice” plans involved no government assignment of individuals to schools on the basis of race. Why were they not adequate as implementations of Brown?
    • Suppose a city did not have a legally segregated school system, but deliberately drew the lines for school attendance zones in such a way as to ensure that schools were largely segregated on the basis of race (given racially separated residential patterns). Is that covered by Brown? Should it be?
    • After Brown, would it have been constitutional for the federal government to give aid to school systems that had failed to comply with the mandate to desegregate?
    • What was the basis for the courts’ power to redraw school district lines and order busing? On what basis was the power held not to apply in Milliken? What other powers might federal courts exercise to bring about a “unitary” system? Was the Court correct to treat tax questions differently?
    • Is there a difference between desegregating schools that had been segregated de jure and integrating schools that had been segregated de jure?

    With respect to the material in Section III.A.1.b.ii, consider:

    • What made the statute in Loving v. Virginia a violation of the Fourteenth Amendment?
      • The Constitution is color-blind. Racial classifications were used to define categories of people eligible for marriage, and the Fourteenth Amendment does not permit states to use forbidden classifications such as race as the basis for such categorization.
      • Statutes banning racial intermarriage have the purpose of maintaining White Supremacy, a purpose that the Fourteenth Amendment forbids.
    • Which reading of Loving is most consistent with Brown?
    • Could a state adoption agency take race into account in deciding where to place a child? How might that situation be distinguished from Palmore? Should it be distinguished?
 
Assignments for the week of October 2:

  • Tuesday, October 3: Videotape We discussed the material in Sections III.A.2 and III.A.3.

    With respect to the material in Section III.A.2, consider:

    • Was Korematsu wrong in how it applied “strict scrutiny,” or in applying it at all -- i.e., should it just have held that any use of a racial classification to the disadvantage of a minority is unconstitutional? What approach should the Court have taken in Johnson v. California?

    With respect to the material in Section III.A.3, consider:

    • What does Yick Wo v. Hopkins show about the Court’s approach to facially neutral statutes? Why might courts be reluctant (as the casebook suggests) to apply the holding generally in cases of criminal prosecutions?
    • If a statute is determined to use racial classifications (or if its application involves the deliberate use of racial classification), it will be strictly scrutinized, and most likely invalidated. If a statute is determined not to use racial classifications (i.e., is facially neutral), then it will be given minimal scrutiny (and most likely be upheld) unless it is found to have a racially discriminatory purpose. Why shouldn’t the fact that a statute is facially neutral -- does not use racial classifications -- always trigger minimal scrutiny? In other words, why delve into purpose?
    • On the other hand, if courts are in fact willing to go beyond the facial neutrality of the statute, why shouldn’t a racially disparate impact be sufficient to trigger strict scrutiny? Why require a showing of purpose? And how does evidence of impact help in establishing purpose or intent?
    • Are Gomillion v. Lightfoot and Griffin consistent with Palmer v. Thompson?
    • Is Palmer v. Thompson consistent with Washington v. Davis? Why was it considered ill-advised to look at purpose in Palmer v. Thompson, but then intent to discriminate was required in Washington v. Davis?
    • How do Arlington Heights and Rogers v. Lodge refine the test set out in Washington v. Davis?
    • Suppose the following under federal law:
      • the same maximum sentence applies to a sale of 10 grams of crack and 1000 grams of powdered cocaine;
      • in 28% of all federal convictions, the defendant is black;
      • in 27% of all powder cocaine convictions, the defendant is black;
      • in 90% of all crack convictions, the defendant is black.
      • For explanations of crack versus cocaine, see Cocaine and Crack Facts or Crack vs. Cocaine: Which Is “Worse”?
      Is there a basis for inferring discriminatory intent? By prosecutors? By legislators? Both?
    • How would you analyze the issue of felony disenfranchisement under these cases? For a very brief overview, see The Sentencing Project, Felony Disenfranchisement

  • Thursday, October 5: Videotape We discussed the material in Sections III.A.4.a and III.A.4.b.

    With respect to the material in Section III.A.4.a, consider:

    • Should a public university’s use of race as a factor in admissions, as part of an affirmative action or diversity program, be subject to strict scrutiny? Why or why not?
    • Would a private university’s use of race as a factor in admissions be subject to strict scrutiny? Why or why not?
    • What general test of the legality of affirmative action programs did Justice Powell propose in Bakke? What would count as a compelling state interest in his approach? How did his approach differ from that taken by Justice Brennan? Which of the two approaches is better, in your view?
    • What was the legal position taken by Justice Stevens? What impact would that approach have had on affirmative action programs?

    With respect to the material in Section III.A.4.b, consider:

    • Consider Wygant and Bakke. Justice Powell’s opinion in Bakke clearly views the goal of attaining the benefits of a racially diverse student body in education as a compelling state interest. In Wygant he said that the goal of minority role models was not a compelling state interest in deciding which teachers to retain during layoffs. Is this an inconsistency in his views about the use of race as a factor in education, or are the two situations distinguishable?
    • Is Wygant an employment case or an education case? Should that make a difference in deciding the constitutionality of the express use of race?
    • What is required, under Wygant, to justify a public entity’s use of race as a factor in employment:
      1. A prior formal adjudication that the public entity had engaged in racial discrimination in hiring?
      2. Proof that the public entity had engaged in racial discrimination, even if there was never a formal adjudication to that effect?
    • Suppose there are two counties in the hypothetical state of Cania. Counties are creations of the state. What if the school system in County A systematically discriminated against blacks in hiring, while the school system in County B never did so? Under Wygant (and other cases), the discrimination that took place in County A might justify the express use of race in future hiring in County A to remedy the past discrimination, but not in County B. Yet since counties are creations of Cania, and subject to its laws, why not treat it as a situation where the state of Cania discriminated in hiring in the past, and permit the use the express use of race in hiring in counties in Cania to help remedy the effect of past discrimination by Cania?
    • What was the holding of the Court in Fullilove?
    • Should the standard of review of affirmative action programs be different if they are enacted by states or local governments than by the federal government? What did Fullilove say? What did Adarand say?
    • What was Justice Stevens’ response in Adarand to Justice O’Connor’s “congruence” point?
    • What view did the different opinions in Croson take regarding:
      • the acceptable purpose of set-aside programs: is remedying past discrimination the only acceptable purpose? And by whom?
      • the closeness with which they should be scrutinized?
    • What does it mean to act in a race-neutral fashion? Would the awarding of contracts by Richmond to contractors without regard to the race of the contracting companies’ owners be race-neutral if the contractors deliberately excluded MBEs from subcontracts? Is that different from a situation where contractors did not exclude subcontractors by race, but racial discrimination, past and present, meant that there were few MBEs in Richmond?
    • What is your view of Justice Stevens’ argument that there is a difference between “a decision by the majority to impose a special burden on the members of a minority race and a decision by the majority to provide a benefit to certain members of that minority notwithstanding its incidental burden on some members of the majority” (CB 709-710). What is Justice Thomas’ reply to this argument?
    • By what legal standard are affirmative action programs judged after Adarand? Strict scrutiny? “Strict scrutiny minus” (see CB 711, Note 2)? Consider the standard announced in Adarand, and the description of its application by lower courts at CB 711 Note 2.
    • Is strict scrutiny of affirmative action programs consistent with the original intent of the Fourteenth Amendment? With its text?
    • If a lower standard of scrutiny applied to affirmative action measures than to other measures that classify by race, would there be a workable way for the Court to distinguish between “benign” racial classifications and others? Would applying a Carolene Products “footnote 4” analysis (CB 501-502) work in this context?

  • Friday, October 6: (2:00-3:20 pm, Room A110) Videotape We will discuss the material in Sections III.A.4.c.i and III.A.4.c.ii.

    With respect to Section III.A.4.c.i, consider:

    • What should plaintiffs challenging affirmative action programs need to show in order to establish standing in the educational context? In the government contracting context?
    • Consider the discussion of stare decisis in Casey (1992) (CB 532). If, in connection with Grutter and Gratz, one applied the criteria for deciding whether to overrule a prior case, what would they say about whether to overrule Bakke (1978)?
      • Had Bakke proven unworkable?
      • Was there any reliance interest (individual or social) in the continued validity of Bakke? Consider what the amicus briefs filed in the Grutter and Gratz case (see CB 728-729) might say about this.
      • Had there been any evolution of legal principles that left Bakke’s doctrinal footings weaker than they were in 1978 (the yearBakke was decided)? Would Adarand (1995) and Croson (1989)(and perhaps Wygant (1986)
      • Had any changes in Bakke’s factual underpinnings left its central holding obsolete?
    • Should the Court have held that remedying past discrimination is the only compelling (or even legitimate) governmental interest that justifies the use of race in college admissions?
    • What makes diversity “compelling” in the context of education? What is your view of Justice Thomas’s statement that diversity is just a “fashionable catchphrase” (CB 718 n.1).
    • How does “diversity” as a compelling state interest justifying affirmative action differ from remedial considerations in terms of:
      • the contexts in which it is valid (e.g., work versus education; higher education versus elementary or high school education)
      • the relation to the goal of eliminating the effects of past discrimination or offsetting continuing discrimination?
    • Why should the University of Michigan receive deference from the Court as to the value of diversity whereas the Richmond City Council did not?
    • On what basis did the Court distinguish the college’s affirmative action program from the law school”s?
    • How should a university preparing to meet a legal challenge to its affirmative action program in admissions structure that program? Consider:
      • Steps taken before adopting a race-conscious program aiming at diversity;
      • How the program itself is structured;
      • Steps taken to evaluate and re-evaluate the program over time
    • Should a court passing on the constitutionality of a particular university’s program look only at that program, or compare the university’s approach and its outcome to that of other universities?
    • Justice Thomas asserts in Grutter that affirmative action programs harm those who are admitted as a result of it. How is that? Is this a constitutionally grounded judgment? Suppose someone compared his judgment in this respect to the Lochner Court’s judgment that the 60+ hour work week wasn’t that harmful to workers. Would that be a fair and accurate comparison? Why or why not?
    • Note that in the later case of Fisher II, Justice Scalia pointed during oral argument to that “those who contend that it does not benefit African Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school - a slower-track school where they do well,” and said, “[o]ne of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas .... They come from schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.” Is his argument the same as Justice Thomas’s? Different?
    • What is your view of Chief Justice Rehnquist’s criticism of the critical mass idea?
    • Was the Court right to find the method used in Gratz unconstitutional, notwithstanding Grutter? Or do you agree with Justice Souter that the system used was more like that in Grutter (permissible) than a quota (impermissible)? Why or why not? Was Michigan just being penalized for its candor, as Justice Souter charged, or camouflage, as Justice Ginsberg charged? Why isn’t it enough to justify an affirmative action program in admissions that it was not adopted for the specific purpose of establishing a quota?

    With respect to Section III.A.4.c.ii, consider:

    • Consider plans like the Texas Top Percent Plan, or affirmative action based exclusively on economic status:
      • Are those programs adequate substitutes for race-based affirmative action?
      • Is the question of whether they are adequate substitutes for race-based affirmative action purely a policy question? Is it one that the constitution governs?
    • If a facially neutral plan like the Top Ten Percent plan is adopted with the clear purpose of providing an equivalent to express consideration of race in admissions, should the plan be held, under Washington v. Davis, to be intended as a race conscious program and judged under strict scrutiny?
    • In Fisher I (2013) (CB 731), why was the record insufficient, according to the majority, to show the “narrow tailoring” the majority said that strict scrutiny requires? What, concretely, was the district court being told to do on remand? How did that (seemingly) relate to the Top Ten Percent Plan?
    • Is the Top Ten Percent Plan race neutral? Consider Justice Ginsburg’s comment at CB 733.
    • Is the outcome in Schuette (CB 733) truly compatible with the holdings in Hunter v. Erickson and Washington v. Seattle (described at CB 733)? How did Justice Kennedy (writing a plurality opinion) distinguish them? Are you persuaded? Why or why not? Is Justice Breyer’s opinion consistent with those earlier opinions?
    • A side note regarding Hunter and Washington v. Seattle. In Romer v. Evans (CB 553), the Colorado Supreme Court had cited these cases for the proposition that strict scrutiny was the proper standard of review for the state constitutional amendment (Amendment 2) in question there, and had found it unconstitutional. As you know, the Supreme Court affirmed that ruling, but on the basis of minimum rationality scrutiny.
    • Should public universities be required to institute affirmative action programs in their admissions? Consider Justice Sotomayor’s dissent in Schuette.
    • What is the compelling state interest that justifies consideration of race in college admissions, according to Fisher II (2016) (CB Supp. 9)? Is it enough to cite an interest in the educational benefits of diversity?
    • A number of commentators viewed the outcome in Fisher II as a surprise. Note that Justice Kennedy dissented in Grutter, and wrote the majority opinion in Fisher I, and the plurality opinion in Schuette. Fisher II was the first time in his time on the Court that he voted to uphold a racial affirmative action policy.
    • Do you agree with Justice Alito that in Fisher II the Court simply deferred to the University’s asserted interest in the educational benefits of diversity, without requiring the close scrutiny Fisher I said was required? Is Fisher II’s scrutiny “feeble in fact” (CB 732)?
    • What interests did the University of Texas articulate? What process did it undertake to articulate them? Was it required to consider alternatives to affirmative action? What was the petitioner’s argument on this point? How did the Court respond?
    • How, in one sense, did the Top Ten Percent Plan potentially undermine the University’s claim that its race-conscious admissions program was suffciently related to the aims it articulated? What was the Court’s view on this?
    • What was the Court’s response to petitioner’s claim that basing all admissions on the Top Ten Percent Plan would be a less restrictive alternative than race conscious admissions?
    • Note that the constitutionality of the Top Ten Percent Plan was not challenged, and so that issue was not before the Court. On what basis might its constitutionality be challenged?
    • Why did the Court think that the petitioner’s acceptance of the Top Ten Percent Plan complicated the Court’s review of the University’s consideration of race in admissions?

 
Assignments for the week of October 9:

  • Tuesday, October 10: We discussed the material in Sections III.A.4.d, and began discussion of the material in Section III.B.1.

    With respect to Section III.A.4.d, consider:

    • Is Parents Involved in Community Schools v. Seattle School District consistent with Grutter, Gratz, and Fisher? Does the context -- higher education versus public school systems -- matter?
    • Consider that Seattle had voluntarily implemented a race-conscious plan to ameliorate segregation in schools (i.e., had do so not under court order to desegregate). Suppose it had in fact been running segregated schools before it undertook its voluntary desegregation program. Would that matter under the majority’s approach?
    • Is the problem from the Court’s point of view that the school district’s have no legitimate interest in the racial mix of the schools, or that the means used to achieve their goals were not narrowly tailored to the end?
    • If a school district is concerned about trends towards resegregation or racial imbalance, are there means available to it after Parents Involved to address that concern? Consider Justice Kennedy’s concurrence; Justice Breyer’s concerns about continuing constitutionality of the alternate means suggested by Justice Kennedy; and Chief Justice Roberts’s response to Justice Breyer.
    • What test does Justice Breyer set out for judging the constitutionality of the Seattle plan?

  • Thursday, October 12: We continued discussing the material in Section III.B.1 and then move on to Section III.B.2.a.

    With respect to Section III.B.1, consider:

    • Would you support adding the gender-equality provisions of the Canadian Charter of Rights or the South African Constitution to the U.S. Constitution? Exactly which are those provisions? Would there be potential disadvantages to doing so?
    • On what was Bradwell based? History and tradition? Original intent? Social consensus? Does it have any general lessons regarding constitutional interpretation?
    • Note that Bradwell was decided during the Lochner era. Then, when the Court drew back from Lochner, it gave a rationale sounding much like Holmes’s Lochner dissent for deferring to state judgments about gender roles (Goesaert v. Cleary (CB 760).
    • What level of scrutiny was applied in Reed (CB 760)?
    • Consider Frontiero v. Richardson (CB 761). Should the Court in the modern era have deemed gender a “suspect classification” like race? What would a political process or Carolene Products approach suggest? Did Frontiero adopt strict scrutiny as the governing standard to claims of gender discrimination?
    • What is the difference between “strict scrutiny” and “intermediate scrutiny”?
    • What is the relevance, if any, of the failed Equal Rights Amendment to the interpretation of the Fourteenth Amendment? Would it have been better or worse if the Amendment had been approved? Would it have made any difference?
    • Should men be permitted to challenge statutes such as those in Craig v. Boren based on gender discrimination when legislatures are overwhelmingly dominated by men? On what basis?
    • What standard of review does Craig v. Boren set out for challenges to gender discrimination? What kind of interest or aim must the state show? And what kind of relation must be established between the interest/aim and the means?
    • What is your view of Justice Stevens’ criticism of the tiered method of equal protection review?
    • Is J.E.B. (CB 768) simply a case in which the Court finds that state action (here, treating peremptory challenges as such) that discriminates against men to be a violation of equal protection, just the same as discrimination against women violates equal protection? Or does the making state action based on gender stereotypes unconstitutional benefit primarily women?
    • On what basis did Hogan find unconstitutional the exclusion of men from the Mississippi University for Women School of Nursing? Does the opinion in Hogan imply that a state could run no single-sex schools -- at any level? What standard of review did it apply?

    With respect to Section III.B.2.a, consider:

    • What standard of review does United States v. Virginia articulate? Is the standard it actually applied the same as what it articulated? Note the Court’s inquiry into the actual purpose of the gender exclusion.
    • In deciding on the appropriate level of scrutiny, should gender be analogized to race in terms of
      • Immutability and visibility
      • Pervasiveness of stereotypes
      • Exclusion from, or hindrance from full participation in, the political process
      • Economic and social marginalization or separation
    • Under what circumstances could single-sex education be upheld after United States v. Virginia? What sorts of justifications or aims are legitimate? Can they be premised on gender differences?
    • Why was the creation of the VWIL not an adequate response to the charge of gender discrimination in the denial of admission to women to VMI?
    • Under United States v. Virginia, would it be constitutionally acceptable for Virginia to run two different military-style college programs, one for women and one for men? Should it be?
    • Suppose a state had no military-style college, and it opened a leadership college for women, modelled along the lines of VMI. Suppose a man applied for admission to this college. Could he be excluded, consistent with the constitution? Why or why not?

 
Assignments for the week of October 16:

  • Tuesday, October 17: We will discuss the material in Sections III.B.2.b, III.B.3, III.C, and III.D.1.

    With respect to Section III.B.2.b, consider:

    • Does differential treatment based on pregnancy (e.g., in employment or other benefits) amount to a gender-based classification?
    • To what extent may states recognize “real” gender differences in light of Michael M.? Are the differences to which the court pointed solely the product of biology? What about the difference between men and women that the Court noted in Rostker? Or between mothers and fathers? Is it too hard for the Court reliably to distinguish between “real” differences and differences that result from social stereotypes or barriers? Or is it dangerous do ignore differences between women and men?
    • Was the Court correct in Rostker (CB 781) to uphold the exclusion of women from draft registration? How might this issue differ from that in Michael M.? At the time Rostker was decided, women could serve in the military, but not in combat positions; the exclusion from combat positions was ended during the Obama administration. Does that have any relevance to the constitutionality of continuing to exclude women from the requirement of registering for the draft?
    • Are Caban v. Mohammed and Nguyen v. INS (CB 873-785) consistent? Is there really a biological difference in the latter case absent from the former? The mother must be present at birth, but how relevant is that, given DNA testing?
    • In Sessions v. Morales-Santana (CB Supp. 13), did the Court, having found the statute to be based on impermissible gender stereotypes, provide for the proper remedy?

    With respect to Section III.B.3, consider:

    • Was Feeney simply an application of Washington v. Davis, or was it distinguishable? If it was not distinguishable, which approach -- requiring intent or not -- is preferable?
    • Does the Court distinguish between laws that treat women and men differently in order to disadvantage women (or in a way that in fact disadvantages women) and laws that treat women and men differently in order to help women overcome discrimination (or in a way that has that impact)? Should it?
    • What does gender equality mean?
      • Formal equality -- gender blindness: there can be no gender classifications in the law?
      • Modify formal equality by allowing a recognition, where appropriate, of “real” differences? Are these differences ones of biology? Of different voices?
      • Invoke formal equality (possibly as modified above) when the law disadvantages women, but allow expressly different treatment of women and men where the aim is to counter gender-based discrimination?
      • In any of these approaches, or others, what should the standard of review be? How much should the courts defer to the political process?

  • Thursday, October 19: We will discuss the material in Sections III.C and III.D.1.

    With respect to Section III.C, consider:

    • Alienage as a suspect class.
      • As the Casebook notes, in general “alienage” in this context includes only non-citizens legally present in the country (though Plyer might be an exception). Do you agree with this limitation? Why or why not? Consider:
        • Justice Brennan’s concern in Plyler v. Doe about the “specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents” (CB 846, part of Section III.D.2)
        • Chief Justice Rehnquist’s concern in Foley v. Connelie (CB 795) not to “obliterate all the distinctions between citizens and aliens, and thus depreciate the historic values of citizenship.”
      • As Graham v. Richardson and In re Griffiths make clear, sweeping restrictions on non-citizens may not survive strict scrutiny, but the Court tends to look at government employment and government functions differently. How would you reconcile Foley v. Connelie and Ambach v. Norwick (upholding restrictions) with Sugarman v. Dougall and Bernal v. Fainter (striking restrictions down)?
      • For the most part, we have equated the equal protection clause in the Fourteenth Amendment (applicable to states) with the implied equal protection in the due process clause of the Fifth Amendment (applicable to the federal government, as Bolling v.Sharpe (CB 665) shows). Hampton v. Mow Sun Wong (CB 797) is an example where they may not be identical. Sugarman (CB 795) (1973) (striking down complete ban on aliens in N.Y. civil service) would seem to have dictated that the complete ban on aliens in the federal civil service was a violation of Fifth Amendment equal protection. That is not exactly what the Court held; the holding was more like a due process right to have express determination by Congress, not an agency (the Civil Service Commission) as to whether to allow aliens to hold federal civil service jobs. What might account for the Court’s approach?
    • Currently, race, gender, and alienage are recognized as suspect classifications. Should disability, age, poverty, sexual orientation constitute suspect classifications triggering heightened scrutiny?
      • What factors has the Court taken into account in giving a negative answer?
      • What should count:
        • Immutability?
        • A history of prejudice?
        • Current exclusion from or barriers to full participation in the political process?
        • Other factors?
    • Is Cleburne an application of the “minimum rationality” test or (as Justice Marshall suggests) unacknowledged heightened scrutiny? If Justice Marshall is correct, what does that say about the whole idea of levels of scrutiny? Would you agree with Justice Stevens that the Court should abandon the idea of different tiers of scrutiny, as Justice Stevens suggests?
    • Note that in Cleburne Justice Marshall does not quite call for disability to be a suspect classification, but rather would apply heightened scrutiny because of two factors: (a) the importance of the particular interest at stake (housing), and (b) the history of prejudice against those with disabilities. This somewhat combines the “suspect class” approach with the “fundamental interests” approach (Section III.D.2) (e.g., Justice Marshall’s dissent in Dandridge (CB 836)).
    • If Justice Marshall is correct (in Murgia) that age discrimination in matters like employment is widespread should there be heightened scrutiny in such cases? What reasons does the majority give for rejecting heightened scrutiny?
    • Would you favor having provisions such as those in the South African Constitution Sections 24 (right to environment), 26 (housing), 27 (health care, food, water and social security), 28(1)(c) (children; basic nutrition, shelter, health care and social services), 29 (education) (Supp. 40-42)? Are those rights unlimited? See Section 36, 37 (Supp. 44-46) What approach does the Canadian Charter of Rights and Freedoms take? (Supp. 26-30)

    With respect to Section III.D.1, consider:

    • Does the Constitution protect a right to vote in state elections?
    • How does Justice Douglas deal with the charge that the Court’s holding in Harper (CB 806) is a return to Lochner?
    • Is Harper a case where:
      • a standard stricter than minimum rationality was (rightly or wrongly) applied; or
      • a statute was found to be irrational under minimum rationality, in the sense of either the aim being illegitimate or the means being irrational?
      What light does Kramer shed on this question?
    • Can the voting cases be understood as instances of Carolene Products Footnote 4 analysis -- particularly with reference to the idea that “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation” should be “subjected to more exacting judicial scrutiny” (CB 502)? On the other hand, consider that when a municipality excludes certain people from voting (e.g., those without children, or individuals who don’t own property), that legislation is subject to repeal at the statewide level. If the locally excluded citizens can vote for the state legislature, is the courts’ intervention needed?
    • What would your view be of a charge that decisions like Harper and Kramer amount to judicial amendment of the Constitution to include a provision similar to (say) Section 19(3)(a) of the South African Constitution (Supp. 39), which provides that “[e]very adult citizen has the right ... to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret”?
    • Are the Court’s holdings on restricting voting in special purpose districts consistent with each other?
    • Is denial of the vote to felons (including those who have fully served their time) consistent with the right to vote?

 
Assignments for the week of October 23:

  • Tuesday, October 24: We will complete our discussion of the material in Section III.D.1, and then move on to Sections III.D.2, IV.A, IV.B, and IV.C.

    With respect to Section III.D.1, consider:

    • In Crawford (CB 810), were Justices Stevens and Scalia correct to decline to apply the same approach as Harper to voter ID laws? Should the Court have applied the approach of Washington v. Davis (CB 686) and looked at the intent of such laws? Is Justice Souter’s dissent in effect a disparate impact analysis of the Indiana law, here focused on the impact on the poor? What is the argument that he is applying strict scrutiny? What is the argument that he is applying minimum rationality scrutiny?
    • Note Justice Stevens’ statement in Crawford (CB 811) that “if a nondiscriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators.” Consider that Washington v. Davis makes discriminatory intent key to a Fourteenth Amendment violation, at least in the case of racial discrimination but likely beyond that. Why should a statute that is enacted even in part out of forbidden motives be valid?
    • In Arlington Heights the Court said that if a statute was “motivated in part by a racially discriminatory purpose,” that wouldn’t necessarily invalidate it, but it would “shift[] to the [defendant] ... the burden of establishing that the same decision would have resulted even had the impermissible purpose not been considered” (CB 690). Is Crawford consistent with that approach?
    • Suppose someone asserted that Bush v. Gore suggests that the Court is not capable of developing a coherent body of law regarding the right to vote under the Equal Protection clause. Would you agree? Why or why not?

    With respect to Section III.D.2, consider:

    • Should social support through programs such as food or housing aid, or access to housing, be considered “fundamental interests” in the same way that voting is -- i.e., there’s no constitutional right to them, but once the right is granted, classifications that affect how those benefits are made available are subjected to more than minimal scrutiny? What factors should be relevant in answering this question?
      • The fact (as the Dandridge court acknowledged) what is at stake is something that “involves the most basic economic needs of impoverished human beings” (such as welfare benefits, housing, an education)?
      • The fact that the grant of something (benefits) rather than a denial of rights is at stake?
      • The fact that economic and social policy questions are involved?
      • The fact that the legislature could respond to an adverse ruling by terminating a program or by equalizing benefits downwards?
    • Is Dandridge (CB 836) consistent with Moreno (CB 649)?
    • How would the approach to the proper level of scrutiny that Justice Marshall’s calls for in Dandridge differ from that taken by the majority?
    • On what kind of showing, according to San Antonio Independent School District v. Rodriguez, might a plaintiff successfully establish that strict scrutiny should be applied to an alleged discrimination based on wealth?
    • On what basis does the Court in Rodriguez determine that education is not a fundamental interest? Does Justice Powell entirely reject the argument that education bears a peculiarly close relationship to the First Amendment and to voting? What is the significance of his claim that here there is no “deprivation,” “infringement,” or “interference” with a fundamental liberty (CB 841)?
    • What federalism concerns does the Court consider in Dandridge and Rodriguez?
    • Since Rodriguez, the Court has maintained a relatively closed list of what counts as a fundamental interest under the Equal Protection Clause: voting, access to courts [which we are not covering], among others. Why are so few interests protected?
    • In Plyler v. Doe (CB 846) did the children’s status as undocumented alien trigger strict scrutiny? Did the Court find education to be a fundamental right? If not strict scrutiny, what level of scrutiny would you call it?
    • Was Justice Blackmun correct that Plyler is consistent with Rodriguez because the former, unlike the latter, involved a complete denial of something (education)? Was Chief Justice Burger correct that Plyler rests on a “theory custom-tailored to the facts” of the case?

    With respect to Section IV.A, consider:

    • In light of the passage of the various federal civil rights acts soon after the Civil War (see CB 851-853), what assumptions might the Reconstruction Congress have had about:
      • the role of the federal government in protecting civil rights, particularly those of the newly freed slaves, and African-Americans generally;
      • the power of the federal government to protect those rights as against private actors as well as state actors?
    • With respect to the Civil Rights Cases, review the questions previously posted.

    With respect to Section IV.B, consider:

    • Why didn’t the state action doctrine call for a holding in Shelley v. Kramer that the discrimination was private and not subject to the Fourteenth Amendment? Is a distinction between the contract/covenant as private and judicial enforcement as public tenable? Why or why not?
    • What does Shelley v. Kramer say in response to the argument that even assuming state action, there is no violation because covenants excluding whites would be enforced as well as those excluding blacks?
    • Assume for the sake of argument that if the government forbade criticism of the president in a public park, and punished violations of prohibition, the First Amendment would be violated. Suppose at a dinner party at someone’s house, the host tells guests not to criticize the president, and orders a guest who violates that admonition to leave. Suppose then that:
      • the guest refuses to leave, and the host calls the police to have the guest cited for trespassing. and removed from the house. Is there state action under Shelley? If there is, is the state’s action in punishing someone for the content of what they said -- for criticizing the president -- consistent with the First Amendment? What is the state action--enforcing a ban on criticism of the president, or enforcing a trespass rule at the behest of a property owner; or, suppose that:
      • the guest leaves immediately, knowing that if she remains she is liable to be cited for trespassing. Is there state action under Shelley?
    • Is Evans v. Abney consistent with Shelley v. Kramer? Does the answer turn on the nature of a reverter under property law? Is the view that blacks and whites were equally treated by the law consistent with Shelley?
    • Is Pennsylvania v. Board of Directors of Trusts consistent with Evans v. Abney?
    • What test for determining state action does the Court lay out in Burton v. Wilmington Parking Authority? How does Justice Stewart’s approach differ from Justice Clark’s?
    • Why is there no state action in Moose Lodge? Was the state willing to grant an unlimited number of licenses? Should that matter?
    • Note that the distinction between Moose Lodge as actually presented and decided, and the strategy suggested in the casebook (CB 866) might (very roughly) be analogized to the distinction between a facial challenge to the validity of a law and an as-applied challenge.
    • Is authorization of discrimination the same as failure to protect? Was either or both present in Reitman?
    • Can Burton, Moose Lodge, and Reitman be reconciled? Consider what impact on state action doctrine (in the era before Jackson [CB 868, to be covered under Section IV.C]) the following factors might have:
      • Interdependence of state and private actors (Burton)
      • State regulation (Moose Lodge)
      • State conferral of monopoly power (Moose Lodge)
      • Involvement of a state official (Shelley v. Kramer)
      • State encouragement or endorsement of private discrimination (Reitman -- is that the only way to understand the referendum in that case?)

    With respect to Section IV.C, consider:

    • Consider the following factors discussed in Jackson, Flagg Bros., Blum, and Rendell-Baker:
      • State regulation (including how detailed it was)
      • Conferral of a monopoly
      • Natural monopolies versus other monopolies
      • State approval of a particular action by an actor
      • The existence (or non-existence) of a symbiotic relationship between a state and an actor
      • State acquiescence in an actor’s action
      • Permission versus compulsion
      • State subsidies of actors, including what percentage of the actor’s funds are from public funds
      Are Jackson, Flagg Bros., Blum and Rendell-Baker consistent with each other? With the Court’s earlier state action cases?
    • Should there be a constitutional duty to protect in domestic violence cases? In general? Where there is a special relationship created or assumed by the state? Was there state action involved in Joshua’s placement (in the Deshaney case)? What dangers might be posed by a broad reading of “state action” in this context? What dangers are posed by a narrow reading?
    • Did the Court create a new ground for finding state action in Brentwood (“entwinement”) as the four dissenters charged? Was the holding based on the appearance of state encouragement? On the overlap in personnel?

  • Thursday, October 26: We will complete our discussion of the material in Section IV.B (questions above) and then discuss the material in Section V.A .

    With respect to Section V.A, consider:

    • How does the English history of prior restraints and licensing, and of the crime of seditious libel, bear on the interpretation of the First Amendment today?
    • What accounts for the passage of the federal Sedition Act of 1798 (one of four bills enacted, commonly referred to together as the Alien and Sedition Acts) by the First Congress of the United States, in which a number of the Framers served? Notice that it was not declared unconstitutional; it was a subject of major debate, and played a role in the presidential election of 1800, and expired of its own force without renewal in 1801. Are there ways in which it might be better if the political branches rather than the courts were generally the guardians of free speech?
    • What values does the First Amendment protect? Are some more central than others? Are these values embodied in the text of the First Amendment? In the structure of the constitution? In something else?
    • Which constitution -- the South African, Canadian, or U.S. -- has the best textual protection of the matters covered in the U.S. First Amendment (apart from religion)?
    • What provisions, if any, do the three constitutions make for limitations on the protected rights of expression and belief?
    • What provisions, if any, do the three constitutions make for suspension of rights (or “exceptions” to them) in time of war or emergency, otherwise?
 
Assignments for the week of October 30:

  • Tuesday, October 31: We will complete our discussion of the material in Section V.A, and then move on to Sections V.B.1.a.i.1), V.B.1.a.i.2), V.B.1.a.ii, and V.B.1.a.iii).

    With respect to Section V.A, consider:

    • Which constitution -- the South African, Canadian, or U.S. -- has the best textual protection of the matters covered in the U.S. First Amendment (apart from religion)?
    • What provisions, if any, do the three constitutions make for limitations on the protected rights of expression and belief?
    • What provisions, if any, do the three constitutions make for suspension of rights (or “exceptions” to them) in time of war or emergency, otherwise?

    With respect to Section V.B.1.a.i.1), consider:

    • What did the literature at issue in Schenck say? In what way was it said to obstruct recruiting? What was the “substantive evil” that Congress had a right to prevent, and the “clear and present danger” of which justified the charges, according to Holmes?
    • What role did the fact that the U.S. was at war play in the Court’s analysis?
    • What were the possible penalties under the Espionage Act?
    • Should the government have the power to punish any speech for inciting individuals to illegal actions, as opposed to punishing the actions themselves? What is “incitement”? Is there a difference between (a) persuading someone through reason and (b)rousing a mob to immediate illegal action? Do the Espionage Act or Holmes’ analysis draw a distinction between the two?
    • Consider arson: one might throw a single small match in an area doused with gasoline. What elements would you expect the prosecutor to have to prove to secure a conviction. Is Frohwerk essentially an application of a similar standard to speech, in light of the last sentence of Justice Holmes in the summary of Frohwerk?
    • What were the statements of Debs that violated the Espionage Act?
    • How does Debs define the intent the Court reads the Espionage Act to require? As a subjective desire to bring about certain consequences? Or as responsibility for the “natural and intended effect” of one’s actions?
    • An individual stands in front of an Army recruiting station in early April 2003 (soon after the US invasion of Iraq). She offers pamphlets to anyone entering it. The pamphlets assert that the Iraq has no weapons of mass destruction, contrary to U.S. assertions, and that the U.S. invasion of Iraq is illegal under international law. The pamphlets further assert that the real reason for the U.S. invasion is Iraq’s oil. The pamphlet asserts that individual soldiers can be liable personally under international law for major violations of international law in certain circumstances, and ends with a call to all patriotic citizens to “do everything possible to prevent this illegal war.” The lower caption says “Say no to blood for oil!” A number of people take the pamphlet. Some read it; of those who do, some enter the recruiting station (and some of those take steps to enlist); others leave without entering. The individual is charged with violating 18 U.S.C. § 2388(a). Under Schenck, Frohwerk, and Debs, would her distribution of the pamphlet be protected under the First Amendment? Should her distribution be protected under the First Amendment, in your view?
    • Optional: How the Horrific 1918 Flu Spread Across America, Smithsonian.com, November 2017, relates the following:

        When the United States entered the war, Woodrow Wilson demanded that “the spirit of ruthless brutality...enter into the very fibre of national life.” So he created the Committee on Public Information, which was inspired by an adviser who wrote, ”Truth and falsehood are arbitrary terms....The force of an idea lies in its inspirational value. It matters very little if it is true or false.”

        At Wilson’s urging, Congress passed the Sedition Act, making it punishable with 20 years in prison to “utter, print, write or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United State...or to urge, incite, or advocate any curtailment of production in this country of any thing or things...necessary or essential to the prosecution of the war.” Government posters and advertisements urged people to report to the Justice Department anyone “who spreads pessimistic stories...cries for peace, or belittles our effort to win the war.”

        Against this background, while influenza bled into American life, public health officials, determined to keep morale up, began to lie.

      The article goes on to describe how public health officials and the news media, following the government’s lead, systematically lied to the public, assuring them that the epidemic was under control when it was in fact raging.

      The pandemic killed somewhere between 50 and 100 million people worldwide, and about 670,000 people in the U.S. (the equivalent of over 2 million Americans today). What might this suggest about the effect of government censorship, deception, and propaganda on matters outside the realm of politics?

    With respect to Section V.B.1.a.i.2), consider:

    • What were defendants advocating in Abrams? What actions did they seek to incite individuals to commit?
    • In dissent in Abrams, Holmes says that the second leaflet did not evince the intent that should be required to sustain a conviction. What intent should be required, according to Holmes? What was the defendants’s intent, according to Holmes?
    • What was the relevance of the penalty, according to Holmes?
    • How relevant to Holmes is the immediacy of the connection between the speech and the alleged bad effects?
    • If Holmes believes that “[p]ersecution for the expression of opinions” is “perfectly logical,” (CB 954) on what basis did he dissent?
    • Consider the following general positions:
      • Advocacy of violence should not be given protection, because it is never justified; advocacy of violations of the law should not be protected because the proper way to respond to an unjust or bad law in a democracy is to work for legislative change.
      • All advocacy should be protected under the First Amendment. Only acts should be regulated.
      • Advocacy of violence or law breaking should be protected. But incitement to either should not.
      • Advocacy of violence or law breaking should be protected unless it is likely to have significant harmful effects. (Consider, in thinking about this position, how imminent the bad effects must be, and how clear the causal link between the speech and effects must be.)
      Which of these approaches would you favor? Is there some other general approach you think would be better than any of these?

    With respect to Section V.B.1.a.ii, consider:

    • Is Masses’s holding based on the constitution or the Espionage Act?
    • Judge Hand’s approach focuses less on the intent of the speaker than on the words used by the speaker. In what ways might this be underprotective of freedom of speech? In what ways might it be too confining to the government in the pursuit of legitimate objectives?
    • Which is the better of the two approaches -- Holmes’ or Hand’s?

    With respect to Section V.B.1.a.iii, consider:

    • What did the Manifesto in Gitlow advocate? How did its publication violate New York law?
    • Note the Gitlow Court’s deference to the determination by the New York legislature that advocacy of the sort contained in the Manifesto is profoundly dangerous to society (CB 963). How deferential should a court be to a legislative determination of a “clear and present” danger?
    • In what ways did Holmes modify his views about the marketplace of ideas in his dissent in Gitlow compared to Abrams? Is suppression of ideas by a democratically elected government inconsistent with self-governance or an expression of self-governance?
    • In what ways to Holmes’ and Brandeis’ approach to the “clear and present” danger test differ?
    • What does it mean to talk about a “clear and present” in the case of an alleged movement to overthrow the government? Should the First Amendment protect any speech advocating the overthrow of the government?
    • What did Whitney hold about whether it is consistent with the First Amendment to outlaw knowing membership in an organization that advocates the violent overthrow of the government?
    • Did Whitney require that the speech in question be found to be imminently likely to cause insurrection, or was it enough that it be found to have the tendency to do so?
    • On what theory of the First Amendment does Brandeis base his concurrence in Whitney?
    • What were the charges in Dennis? What factual conclusions did the Court say were supported by the record?
    • What was the status as of 1951 of the “clear and present danger” test, according to Dennis?
    • How, according to the Court, did the situation confronting the U.S. during the 1950s differ from that confronting the U.S. in the late teens and early 1920s? How does the Court’s assessment of the difference bear on its application of the “clear and present danger” test?
    • The Court says that discussion of the overthrow of the U.S. government by force is protected, but that advocacy is not. Why should advocacy not be protected, according to the Court? Do you agree? Why or why not? What is Justice Black’s view on this question?
    • On what bases do Justices Frankfurter and Jackson concur?
    • What is Justice Douglas’s criticism of the majority?
    • Consider the following examples of speech:
      • A blog entry by a cult leader with a slavishly devoted following of 5,000, giving a philosophical justification for detonating a dirty bomb near the White House and Capitol building to cause a crisis that brings about fundamental change in the government. The cult leader is currently being investigated by the IRS for tax fraud.
      • An Instagram post of a mushroom cloud on a public page, with a link to a website that has nearly complete instructions, in detailed technical form, on how to construct and detonate a dirty bomb.
      • A tweet by a person who has 10,000 followers, seeking to prove that people will fall for anything; the tweet links to that Instagram post, accompanied by #MakeItHappen
      Should any of these be protected under the First Amendment? How would they fare under the test in Dennis?

  • Thursday, November 2: Please read the material in Sections V.B.1.a.iv and V.B.1.b.

    With respect to Section V.B.1.a.iv, consider:

    • In Brandenburg, what kind of speech did the Ohio Criminal Syndicalism statute prohibit? On what model was the statute based?
    • What test does Brandenburg apply to determine whether the conviction was consistent with the First Amendment? Is it consistent with the Espionage Act cases and Dennis?
    • Make sure you understand these aspects of the Brandenburg test:
      • What kind of speech supporting violence or law-breaking may be prohibited?
      • How likely must the speech be to produce violence or law-breaking?
      • How imminent must the violence or law-breaking that is advocated be?
    • Would the following federal statute be constitutional?
        It shall be unlawful for any person ... to teach or demonstrate the making of explosive materials if the person intends or knows that such explosive materials or information will be used for or in furtherance of a federal criminal offense.
    • Are Claiborne (CB 982) and Planned Parenthood v. American Coalition of Life Activists (CB 983) consistent?
    • Is the outcome in Rice v. Paladin Enter. (CB 984) consistent with Brandenburg?
    • Is First Amendment doctrine capable of drawing a distinction between (a) groups that advocate violence, terrorism, or the overthrow of the government, but are too trivial to have any practical effect, and (b) groups that are sufficiently powerful to pose a real threat? Should it be? Who should draw that distinction? The courts? Legislatures?
    • Note Justice Douglas’s possible distinction in Brandenburgbetween what kind of regulation of speech might be permitted during war and what might be permitted during peacetime (CB 981). Would it be better to have an express provision in the Constitution permitting the suspension of certain rights (including freedom of expression), as does South Africa?
    • Is the outcome in Holder v. Humanitarian Law Project (CB 985-986) consistent with Brandenburg?
    • Assume the facts alleged in the complaint in Nwanguma v. Trump are true. Is is consistent with the First Amendment for liability to be found under the Kentucky statute? Why or why not? Who is more persuasive, in your view -- Rowland or Sweeney?
    • Consider also, in relation to Nwanguma:
      • Even if the incitement charge is consistent with the First Amendment, is the negligence charge consistent with it?
      • As Rowland notes, the judge takes Trump’s statement, “I can’t say ’go get ‘em’ or I’ll get in trouble,” as thinly veiled incitement. If you’ve read the cases carefully that ought to remind you of Justice Holmes’s recounting of Eugene Debs’ speech: “He said that he had to be prudent and might not be able to say all that he thought, thus intimating to his hearers that they might infer that he meant more ...” (CB 950). Is it consistent with the First Amendment to convict a speaker for alleged intimations as opposed to actual statements? What are the arguments for? Against?

    With respect to Section V.B.1.b, consider:

    • What test does the Court apply in Chaplinsky to determine that the speech was unprotected?
    • Are fighting words unprotected because
      • they have no true value as speech (e.g., are just name calling, or don’t do much to persuade)?
      • they are offensive to the listener?
      • they are likely to lead to violence?
    • Are these “fighting words”:
      • reference to the Catholic Church “the great whore”
      • reference to Hillary Clinton as a “monster”
      • caricature cartoons of Mohammed?
    • Should “fighting words” be unprotected?
    • What protection should be accorded to speech that is thought to trigger a hostile audience reaction, possibly including violence? What does Terminiello have to say on this? What does Feiner hold? Is Feiner consistent with Edwards?
    • What remains of Chaplinsky after Cohen? What has changed?
    • What assumptions about the foundations of First Amendment law does Cohen make concerning:
      • the subjectivity or objectivity of truth
      • the ability of majorities to correctly determine the truth
      • the emotional as well as rational significance of words
    • What does Cohen hold about the captive audience problem?

 
Assignments for the week of November 6:

  • Tuesday, November 7: We will complete our discussion of the material in Section V.B.1.b, and then move on to Sections V.B.1.c.i and V.B.1.c.ii.

    With respect to Section V.B.1.b, consider:

    • What test does the Court apply in Chaplinsky to determine that the speech was unprotected?
    • Are fighting words unprotected because
      • they have no true value as speech (e.g., are just name calling, or don’t do much to persuade)?
      • they are offensive to the listener?
      • they are likely to lead to violence?
    • Are these “fighting words”:
      • reference to the Catholic Church “the great whore”
      • reference to Hillary Clinton as a “monster”
      • caricature cartoons of Mohammed?
    • Should “fighting words” be unprotected?
    • What protection should be accorded to speech that is thought to trigger a hostile audience reaction, possibly including violence? What does Terminiello have to say on this? What does Feiner hold? Is Feiner consistent with Edwards?
    • What remains of Chaplinsky after Cohen? What has changed?
    • What assumptions about the foundations of First Amendment law does Cohen make concerning:
      • the subjectivity or objectivity of truth
      • the ability of majorities to correctly determine the truth
      • the emotional as well as rational significance of words
    • What does Cohen hold about the captive audience problem?

    With respect to Section V.B.1.c.i, consider:

    • Regarding Beauharnais, what were the elements of a violation of the Illinois criminal group libel law? Did they include violence or the prospect of violence?
    • How well does the analogy Beauharnais draws to individual libel work?
      • What is the majority’s defense of it? What is Justice Black’s objection to it?
      • Assume these are the elements of (individual, non-public figure) defamation. How would they work in relation to hate speech?
        • A false statement about the individual
        • Publication to a third party (in writing, on the web, orally)
        • The statement was published intentionally (or possibly negligently) by the defendant
    • Which if any of the following three statutes do you think is consistent with the First Amendment:
      • A statute that makes it a crime to exhibit in any public place any publication which “portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion” which “exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy” (the Illinois criminal group libel statute (CB 1004-1005))
      • A statute based on Section 16(2)(c) of the South African constitution, which would prohibit “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”
      • A statute that provides that “no person shall publish or display any representation that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground” (where “prohibited ground” is defined as religion, creed, marital status, family status, gender, sexual orientation, disability, age, color, ancestry, nationality, place of origin, race or perceived race, receipt of public assistance, or gender identity) (based on a Sasktechewan statute upheld by the Canadian Supreme Court)
    • What theory or theories of the First Amendment best support the protection of defamatory false speech under certain circumstances?
      • Is the New York Times standard too protective of the media? Why would it not suffice, for example, to place limitations on damages rather than preclude liability?
      • Is the New York Times standard insufficiently protective? Consider Herbert v. Lando (CB 1013)
    • Which approach would you prefer -- the majority’s in New York Times or Justice Black’s?
    • What does United States v. Alvarez (CB 1011) hold as to First Amendment protection for knowing false statements? Is there any social value to false statements?
    • What figures are covered under the Times standard? Elected officials? Government officials? Private individuals in the public eye (voluntarily or thrust into it)?
    • Should application of the Times standard turn on the subject matter of the alleged defamation -- whether it is matter of public interest? Consider Rosenbloom, Dun & Bradstreet, and Gertz.
    • Is it only the news media that is protected by the Times standard?
    • What constitutional limits, if any, are there on state imposition of defamation liability in the case of a private individual as to a private matter?

  • Thursday, November 9: We will complete our discussion of the material in Section V.B.1.c.i (questions above), and then move on to Sections V.B.1.c.ii and V.B.1.d.

    With respect to Section V.B.1.c.ii, consider:

    • In Hustler, the Court adopted the New York Times v. Sullivan standard for intentional infliction of emotional distress. Larry Flynt, the publisher of Hustler, knew that the account of Falwell’s rendezvous was false. Why did that not satisfy the New York Times standard?
    • With regard to Snyder v. Phelps, in general (as the majority notes) states can regulate speech through content-neutral time, place and manner restrictions (e.g., requiring permits for demonstrations). Was the regulation (here, embodied in the state tort of intentional infliction of emotional distress and the instructions to the jury regarding outrageousness) content-neutral? If it was not, then (a) should the regulation automatically be invalid under the First Amendment, or (b) should it be subject to strict scrutiny (the regulation is necessary to achieve a compelling state interest)? What does the majority opinion suggest?
    • Note that in Snyder v. Phelps, Justice Breyer concurs but reads the opinion not as absolutely protecting the speech, but as making a case-by-case determination of whether the regulation as applied here would be proportional to the state’s interest in protecting its citizens against severe emotional harm. This kind of balancing approach -- judging whether the infringement on speech is proportional to the harm the regulation seeks to avoid (or the public interest the regulation seeks to promote) is the approach the Canadian Supreme Court takes in speech cases. Would this be a better approach in general, in your view, than the U.S. Supreme Court’s?
    • Do you agree with Justice Alito that Chaplinsky would support upholding the imposition of damages here? If we are to consider Chaplinsky, then what about Terminiello (CB 992) (or Feiner? Should we view Snyder in the same framework as those cases -- whether the audience (hecklers in Terminiello and Feiner, the greiving family in Snyder should have a veto over someone else’s speech? In what ways might Snyder be different from Cohen?

    With respect to Section V.B.1.d, consider:

    • The Supreme Court did not have occasion to rule directly on the plan of the American Nazi Party to march through Skokie, Illinois, where many Holocaust survivors lived -- a march that the Village of Skokie sought to prevent, claiming a high danger of violence. In light of Terminiello, Feiner, and Beauharnais, how do you think the Court would rule on the legality of the Village’s efforts? How would New York Times v. Sullivan change the approach of Beauharnais?
    • In reading R.A.V, Mitchell, and Virginia v. Black, keep in mind that in general (as we will see later), speech restrictive laws that are content-based are subject to strict scrutiny. (As an aside, it might be better to say that strict scrutiny is said to apply so long as the speech subject to the content-based restriction does not fall into one of the unprotected categories, like incitement, fighting words, defamation, or obscenity. Unfortunately, this is a complicated area -- and you will see in R.A.V why this aside may not be entirely accurate.) On the other hand, where the regulation is content-neutral, it is subject to intermediate scrutiny. The distinction between content-based and content-neutral is said to be based on whether the regulation distinguishes favored from disfavored speech on the basis of the ideas or views expressed. Viewpoint discrimination in regulations is held to be inconsistent with the First Amendment. Finally, keep in mind that where a regulation suffers from substantial overbreadth -- that is, where many though not necessarily all of its possible applications would be invalid under the First Amendment -- the statute may be subject to a facial challenge, which could result in a finding that it is invalid on its face. If there is not substantial overbreadth, it is still possible to bring an as-applied challenge, in which the individual says that applying the statute to him or her in that particular situation would be inconsistent with the First Amendment. A victory in an overbreadth context means the statute is invalid; in an as-applied context, that it is invalid as applied to the individual in that case, though it may be valid in other applications.
    • Was the regulation in R.A.V. content-based? Content-neutral?
    • Is R.A.V a repudiation of the categorical approach?
    • Why was the statute in R.A.V. unconstitutional, whereas threatening to assassinate the president can be penalized?
    • Can Congress constitutionally penalize an employer who fires an individual out of racially discriminatory motives?
    • Is Mitchell consistent with R.A.V.? What if the statute had provided that the enhancement of penalty depended on whether the attack was based on racial intolerance or racist beliefs or hatred of someone based on race, religion, gender, etc.?
    • If all you knew was that person A assaulted person B based on B’s sexual orientation, how likely do you think it is that you would be correct in asserting that A’s attack was based on homophobia?
    • When was the statute at issue in Virginia v. Black passed? What is suprising about that? What might it say about the statute?
    • Why should conduct (e.g., burning a cross) even present a First Amendment issue?
    • What distinguishes Virginia v. Black from R.A.V., according to the Justice O’Connor? What is Justice Souter’s response?
    • Despite what the Court sees as a clear distinction from R.A.V, why was the conviction still invalid under the First Amendment?
    • What are the arguments in favor of banning “hate speech”? Consider:
      • Its value as speech
      • Its impact on participation in political debate by targets of hate speech
      • The ability of the government successfully to distinguish between “hate speech” and other speech that should be protected.

 
Assignments for the week of November 13:

  • Tuesday, November 14: We will complete our discussion of the material in Section V.B.1.d, and then move on to Sections V.B.1.e.i, V.B.1.e.ii, and V.B.2.a.

    With respect to Section V.B.1.d, consider:

    • The Supreme Court did not have occasion to rule directly on the plan of the American Nazi Party to march through Skokie, Illinois, where many Holocaust survivors lived -- a march that the Village of Skokie sought to prevent, claiming a high danger of violence. In light of Terminiello, Feiner, and Beauharnais, how do you think the Court would rule on the legality of the Village’s efforts? How would New York Times v. Sullivan change the approach of Beauharnais?
    • In reading R.A.V, Mitchell, and Virginia v. Black, keep in mind that in general (as we will see later), speech restrictive laws that are content-based are subject to strict scrutiny. (As an aside, it might be better to say that strict scrutiny is said to apply so long as the speech subject to the content-based restriction does not fall into one of the unprotected categories, like incitement, fighting words, defamation, or obscenity. Unfortunately, this is a complicated area -- and you will see in R.A.V why this aside may not be entirely accurate.) On the other hand, where the regulation is content-neutral, it is subject to intermediate scrutiny. The distinction between content-based and content-neutral is said to be based on whether the regulation distinguishes favored from disfavored speech on the basis of the ideas or views expressed. Viewpoint discrimination in regulations is held to be inconsistent with the First Amendment. Finally, keep in mind that where a regulation suffers from substantial overbreadth -- that is, where many though not necessarily all of its possible applications would be invalid under the First Amendment -- the statute may be subject to a facial challenge, which could result in a finding that it is invalid on its face. If there is not substantial overbreadth, it is still possible to bring an as-applied challenge, in which the individual says that applying the statute to him or her in that particular situation would be inconsistent with the First Amendment. A victory in an overbreadth context means the statute is invalid; in an as-applied context, that it is invalid as applied to the individual in that case, though it may be valid in other applications.
    • Was the regulation in R.A.V. content-based? Content-neutral?
    • Is R.A.V a repudiation of the categorical approach?
    • Why was the statute in R.A.V. unconstitutional, whereas threatening to assassinate the president can be penalized?
    • Can Congress constitutionally penalize an employer who fires an individual out of racially discriminatory motives?
    • Is Mitchell consistent with R.A.V.? What if the statute had provided that the enhancement of penalty depended on whether the attack was based on racial intolerance or racist beliefs or hatred of someone based on race, religion, gender, etc.?
    • If all you knew was that person A assaulted person B based on B’s sexual orientation, how likely do you think it is that you would be correct in asserting that A’s attack was based on homophobia?
    • When was the statute at issue in Virginia v. Black passed? What is suprising about that? What might it say about the statute?
    • Why should conduct (e.g., burning a cross) even present a First Amendment issue?
    • What distinguishes Virginia v. Black from R.A.V., according to the Justice O’Connor? What is Justice Souter’s response?
    • Despite what the Court sees as a clear distinction from R.A.V, why was the conviction still invalid under the First Amendment?
    • What are the arguments in favor of banning “hate speech”? Consider:
      • Its value as speech
      • Its impact on participation in political debate by targets of hate speech
      • The ability of the government successfully to distinguish between “hate speech” and other speech that should be protected.

    With respect to Section V.B.1.e.i, consider:

    • Why is obscene expression considered unprotected speech, according to Roth? Should it be considered unprotected speech? How should it be defined? Consider the following factors:
      • protecting individuals from being morally corrupted
      • protecting groups that have been historically vulnerable to violence (e.g., women) from violence, either as the obscene materials are being produced or as a result of actions taken by consumers of obscene materials
      • protecting individuals from unwilling exposure to sexual images or writings
      • protecting society’s morality
      • preventing subordination of women by undercutting male dominance as exhibited in obscenity
    • What if any First Amendment values may be embodied in obscenity? Might some forms be provide a counter or dissent to dominant sexual norms? Would there be value in that?
    • What does the practice that developed after Redrup suggest about the workability of the Roth approach?

    With respect to Section V.B.1.e.ii, consider:

    • Would Stanley v. Georgia support a constitutional challenge to laws banning the use or possession of small amounts of marijuana in one’s own home?
    • How did the Court define obscenity in Roth and cases up to Miller?
    • How did Miller change the Court’s approach to defining obscenity? Did it resolve the problem of the vagueness of the Court’s previous approaches? What constitutes “serious” value? Did Millerchange the assumptions about why obscenity could be banned?
    • What are “community values” today, given the internet?
    • How should issues about alleged causal connection between obscene materials and social harms be resolved in light of the First Amendment? What about applying a clear and present danger test to such connections?
    • Was the Court correct to reject the “consenting adults” standard in Paris Adult Theatre I v. Slaton? Is it consistent with Stanley?

  • Thursday, November 16: We will discuss the material in Sections V.B.2.a and V.B.2.b.

    With respect to Section V.B.2.a, consider:

    • What was the status of commercial speech in First Amendment doctrine before Virginia Pharmacy Board?
    • What is “commercial speech”? Is the distinction between commercial and other speech workable as a matter of doctrine? Consider that what was at issue in New York Times v. Sullivan was an ad.
    • How does advertising fit with these theories of why the First Amendment protects speech?
      • the search for truth
      • the role of free speech in a democracy
      • self-determination, self-realization, or autonomy
    • What other distinctions might be drawn between commercial speech and other sorts of speech?
    • Is Virginia Pharmacy Board a return to Lochner?
    • What restrictions does Virginia Pharmacy Board indicate may be put on commercial speech?

    With respect to Section V.B.2.b, consider:

    • How strictly are restrictions on commercial speech scrutinized? How consistent has the Court been on this issue?
    • Central Hudson and Posadas assume that suppressing demand for some activity that is legal but which the legislature considers harmful is a permissible (even substantial) aim. Is that assumption consistent with Virginia Board in terms of how protected commercial speech should be?
    • Assuming the government could ban gambling and smoking, but has not done so, should it be able to ban their advertising? What about banning all ads directed towards children? What about banning all ads for abortion services?
    • What about these more limited bans:
      • No tobacco ads within 1000 feet of a school
      • Only black and white, print only (no photos) ads for tobacco in magazines whose readership is 25% or more under 18.
      • No sponsorship of athletic, musical, cultural, or other entertainment events by tobacco companies
    • Under existing caselaw, could a municipality ban all commercial leafleting while permitting non-commercial (or perhaps political) leafleting? Should it be able to?
    • Is Liquormart consistent with Central Hudson and Posadas?

 
Assignments for the weeks of November 20 and 27:

  • Tuesday, November 21: We will discuss the material in Sections V.C.1 and V.C.2. Note that the Syllabus has been revised.

    With respect to Section V.C.1, consider:

    • Make sure you understand how the different ordinances listed at CB 1161 would best be classified (in terms of the type of restriction -- content-based [by viewpoint, subject matter, speaker, or effect on audience] versus content-neutral [by medium, conduct, or time, place and manner, or otherwise neutral as to content]).
    • How do the dangers to the values and requirements of the First Amendment differ as between content-neutral regulations and content-based regulations? Consider these factors:
      • Legislative intent/motivation
      • Effects on speech, debate within the community
      • Effects on democracy and participation
    • What does Reed say about what it takes to trigger strict scrutiny through a determination that a regulation is content-based? What does the Court say regarding the argument that where there is no sign that the legislature intended to suppress particular ideas or viewpoints, there is less reason to worry?
    • Should viewpoint discrimination be regarded as a separate kind of constitutional category from content discrimination? Why or why not? What does Reed suggest?
    • What practical effect does Reed have for local city planners considering signage laws?
    • Consider laws banning panhandling. Do they survive Reed?
    • Could laws requiring producers of pornographers to keep records of their actors (to ensure they are adults) be considered content discrimination under Reed?
    • In theory, content discrmination simply results in application of strict scrutiny. Considering Mosley, Carey, Simon v. Schuster, how strict in fact (fatal?) is that scrutiny?

    With respect to Section V.C.2, consider:

    • What legitimate government interests are served by time, place and manner regulations, including those that require permits for demonstrations or parades, or restrict distribution of literature in public parks or at public events? Consider Cox v. New Hampshire (CB CB 1216). Are these interests merely legitimate? Important or significant? Compelling?
    • Why should a requirement that protesters wanting to march on the streets or demonstrate in a public park first secure a permit be upheld simply because the regulation and its enforcement are content-neutral? Is there no First Aamendment interest in spontaneous demonstrations? And doesn’t such a permit requirement require everyone seeking one to acknowledge the authority of the government? Could a city condition grant of a permit in all cases on a written acceptance of the authority of the Constitution?
    • Would a total ban on all distribution of leaflets in a city be consistent with the First Amendment? What if the asserted reason were (a) the city’s interest in preventing litter, or (b) the city’s commitment to going green, especially in this age when social media can be such an effective way to spread ideas?
    • In what way does Cox v. Louisiana (CB 1225) resemble Yick Wo (CB 683)?
    • Is it enough under the First Amendment that time, place, and manner regulations are neutral on their face and are in fact applied without discrimination based on content or viewpoint?
    • What about alternative means of expression left open by the application of a time, place, and manner restriction: is that relevant to evaluating the constitutionality of the time, place, and manner restriction in the first place?
    • What do the abortion protest cases suggest as to whether the constitutional limitations on regulations of protests (CB 1242-1249) are different when there is a targeted audience?
    • On what basis did the Court decide the injunction in Madsen was content neutral? What was Justice Scalia’s criticism of that characterization? How would you characterize the level of scrutiny the Court applied to the injunction? What was Justice Scalia’s objection to it?
    • Was the ordinance in McCullen content-neutral? Should it have been so held, in your view? Why or why not?
    • Considering Madsen, Schenck, Hill, and McCullen, is there a government interest under the First Amendment in (a) preserving access to abortion clinics? (b) allowing women seeking abortions or abortion counselling without being confronted by speech, signs, or leaflets describing abortion as murder? As to the latter, does it matter whether the restriction is (a) on any communication with the woman entering a clinic by a stranger other than someone with whom she’s invited contact, or (b) on any communication with the woman entering a clinic on the subject of abortion, or (c) on communication with the women entering a clinic that asserts that abortion is murder? Does it matter whether the communication is described as counseling rather than as protest?

  • Thursday, November 23: No class. Thanksgiving Break.

  • Tuesday, November 28: We will discuss the material in Sections V.C.3.a and V.C.3.b. Consider:

    With respect to Section V.C.3.a, consider:

    • What test does O’Brien set out regarding the end and the means of legislation that restricts symbolic or expressive speech or other content-neutral regulations?
    • Given the strictness of the test, how could it be that O’Brien upholds the regulation?
    • Consider the examples of regulations. How do they fare under O’Brien?
      • Clothing
        • No black armbands
        • No Black Lives Matter armbands
        • No armbands in shop class
      • Nudity
        • No nude protests
        • No public nudity
    • Should legislative motivation have mattered in O’Brien? Is O’Brien consistent with Washington v. Davis (CB 686) or Arlington Heights (CB 689)? With Romer (CB 553)?
    • How is one to determine what is an incidental restriction on speech? Did the Court get it right in Arcara (CB 1186)?

    With respect to Section V.C.3.b, consider:

    • How did the statutes at issue in Texas v. Johnson and Eichman? Did the difference matter to the constitutionality of the statutes?
    • Why couldn’t the Texas statute be viewed as justified under Chaplinsky?
    • There are many ways to protest an issue other than burning a flag. Why should that not be sufficient to uphold a ban on flag burning?
    • Does the federal government have the power to ban spray painting racist slogans on the Lincoln Memorial as a form of protest? What about banning the the throwing of blood on the Lincoln Memorial?
    • Is flag burning expression, or “the equivalent of of an inarticulate grunt or roar that [is] most likely to be indulged in not to express any particular idea, but to antagonize others”? (Rehnquist, C.J., dissenting) (CB 1195)
    • Consider this argument, based on Justice Stevens’ footnote 1 at CB 1196. The Lincoln Memorial is a tangible property or asset owned by the public; the government can, consistent with the First Amendment, protect that asset from desecration (e.g., throwing paint on the Lincoln Memorial). The symbolic meaning of the flag in representing nationhood and democracy is a publicly held intangible asset; the government can, consistent with the First Amendment, protect that intangible asset from desecration (e.g., burning a U.S. flag).
    • Would it be constitutional for a state or the federal government to outlaw all intentional or knowing impairment of the physical integrity of any flag?
    • What impact would enactment of a constitutional amendment with the content of the Flag Protection Act of 1989 (CB 1197) have on freedom of expression? Should its impact be limited to that particular issue, or should the Court read it to have broader implications (e.g., in giving less protection to expressive conduct generally, or in being more willing to find a compelling state interest in the application of strict scrutiny to regulations of speech)? Consider the Court’s reaction to the Reconstruction Amendments in The Slaughter-House Cases (CB 449), when it read the Privileges & Immunities Clause of the Fourteenth Amendment narrowly in order to avoid “radically chang[ing] the whole theory of the relations of the State and Federal government to each other” (CB 451). Would that be a good model? Why or why not?