Life of a Law Student » Constitutional Law II

Constitutional Law II #31: Public Displays and Free Exercise

Neil — Sat, 18 Nov 2006 22:16:00 +0000

In this, our final episode for Constitutional Law II, we will examine public religious displays (such as nativity scenes and the Ten Commandments), as well as briefly consider the Free Exercise of religion.

Lynch v. Donnelly (SCOTUS, 1984)
Allegheny County v. Greater Pittsburgh ACLU (SCOTUS, 1989)
Stone v. Graham (SCOTUS, 1980)
McReary County v. ACLU of Kentucky (SCOTUS, 2005)
Van Orden v. Perry (SCOTUS, 2005)
Smith v. Employment Division (SCOTUS, 1990)

Constitutional Law II #30: More Tests and School Prayer

Neil — Sat, 18 Nov 2006 22:10:00 +0000

In this episode we will examine the coercion test, the history / tradition test, the “stupid legislator” test, as well as briefly examining school prayer and the pledge of allegiance.

Marsh v. Chambers (SCOTUS, 1983)
Lee v. Weisman (SCOTUS, 1992)
Santa Fe Independent School District v. Doe (SCOTUS, 2000)
Wallace v. Jaffree (SCOTUS, 1985)
Elk Grove Unified School District v. Newdow (SCOTUS, 2004)

Constitutional Law II #29: Establishment and School Funding

Neil — Sat, 18 Nov 2006 22:04:00 +0000

Can the state provide funding to a private, religious school? The answer, as in many situations is, “it depends.” In this episode we’ll look at some of the various ways that private-school funding has been deemed an establishment, and other ways in which it was not.

Committee for Public Education v. Nyquist (SCOTUS, 1973)
Mueller v. Allen (SCOTUS, 1983)
Grand Rapids School District v. Ball (SCOTUS, 1985)
Auguilar v. Felton (SCOTUS, 1985)
Agostini v. Felton (SCOTUS, 1997)
Zelman v. Simmons-Harris (SCOTUS, 2002)

Constitutional Law II #28: Introduction to Establishment

Neil — Sat, 18 Nov 2006 21:50:00 +0000

We now turn to our final topic in Constitutional Law II, the Religion Clauses. The clauses protect the free exercise of religion, as well as ensuring against the establishment of a religion (aka “separation of church and state”). We will talk a bit about the historical context of the Religion Clauses, as well as two foundational cases.

Thomas Jefferson’s letter to the Danbury Baptists
Everson v. Board of Education (SCOTUS, 1947)
Lemon v. Kurtzman (SCOTUS, 1971)

Constitutional Law II #27: Defamation

Neil — Mon, 13 Nov 2006 07:08:54 +0000

Defamation is another type of “speech” that is often said as being outside the 1st Amendment. In this episode we briefly look at the substantive aspects of defamation, as well as the constitutional requirements of proof before a defamation cause of action can proceed against a public figure.

NY Times Co. v. Sullivan (SCOTUS, 1964)
Gertz v. Robert Welch, Inc. (SCOTUS, 1974)

Constitutional Law II #26: Indecent Speech II

Neil — Mon, 13 Nov 2006 07:01:52 +0000

We continue our discussion of indecent speech by examining COPA, the Child Online Protection Act.

ACLU v. Ashcroft (SCOTUS, 2002)

Constitutional Law II #25: Indecent Speech I

Neil — Mon, 13 Nov 2006 06:56:35 +0000

Often times speech will not rise to the level of “obscene”, but will be considered “indecent.” (For example, it could be considered obscene as to minors.) When public broadcasting is concerned, there are certain regulations that the state can place on this speech. I also advocate examining these regulations based upon a commons model, allowing the government to regulate indecency only when the medium technologically requires the government to establish licenses for using the medium.

Young v. American Mini Theatres, Inc. (SCOTUS, 1976)
FCC v. Pacifica Foundation (SCOTUS, 1978)
Sable Communication of CA, Inc v. FCC (SCOTUS, 1989)

Constitutional Law II #24: Obscenity

Neil — Mon, 13 Nov 2006 06:50:23 +0000

Obscenity is often said to be outside the 1st Amendment. In this episode we will look at the policies and arguments that underly not protecting obscenity, the historical (and continuing) difficulty in defining exactly what obscenity is, as well as the current test for obscenity.

Wikipedia article on Robert Mapplethorpe
Roth v. United States (SCOTUS, 1957)
Ginzburg v. United States (SCOTUS, 1966)
Miller v. California (SCOTUS, 1973)
Paris Adult Theatre I v. Slaton (SCOTUS, 1973)

Constitutional Law II #23: Commercial Speech

Neil — Mon, 13 Nov 2006 06:43:38 +0000

Commercial speech historically received no 1st Amendment protection. However, that has somewhat recently changed, granting commercial speakers an intermediate level of protection.

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (SCOTUS 1976)
Central Hudson Gas & Elec. Corp v. Public Service Comm’n (SCOTUS, 1980)
44 Liquormart v. Rhode Island (SCOTUS, 1996)

Constitutional Law II #22: State-Funded Speech

Neil — Mon, 13 Nov 2006 06:40:33 +0000

When the government pays for speech, it is also given additional leeway in crafting the conveyed message. Examples are government employees and those receiving government funding.

Rust v. Sullivan (SCOTUS, 1991)
Rosenburger v. Rector and Visitors of University of Virginia (SCOTUS, 1995)
United States v. American Library Association, Inc. (SCOTUS, 2003)

Constitutional Law II #21: Speech in Schools

Neil — Mon, 13 Nov 2006 06:34:53 +0000

In restricted environments, such as militaries, prisons, and schools, the government is given slightly more leeway to restrict speech. In this episode we will examine the rules that apply to schools.

Tinker v. Des Moines Independent Community School District (SCOTUS, 1969)
Bethel School District v. Fraser (SCOTUS, 1986)
Hazelwood School District v. Kuhlmeier (SCOTUS, 1998)

Constitutional Law II #20: Forum Analysis

Neil — Mon, 13 Nov 2006 06:30:44 +0000

Just because property is publicly owned, doesn’t mean that the government can’t restrict what type of speech goes on there. Different rules apply to different types of “public forums” (or perhaps “public fora”). In this episode we will look at some of the considerations that go into calibrating protection based on the relevant forum.

International Society for Krishna Consciousness, Inc. v. Lee

Constitutional Law II #19: Expressive Conduct

Neil — Tue, 06 Jun 2006 14:58:56 +0000

All speech is symbolic, with written speech using symbols (ie letters) to convey messages. However, often times valid and worthwhile criminal laws will intersect with symbolic activities (ie expressive conduct). We’ll look at what happens with these intersections in this episode.

United States v. O’Brien
Texas v. Johnson
Barnes v. Glen Theatre, Inc.

Constitutional Law II #18: Hate Speech

Neil — Tue, 06 Jun 2006 14:58:30 +0000

Perhaps a special breed of fighting words is hate speech. Our discussion of hate speech will give us a new underinclusion doctrine that deals with the “low-value speech” of fighting words, obscenity, etc.

R.A.V. v. City of St. Paul
Wisconsin v. Mitchell

Constitutional Law II #17: Fighting Words

Neil — Tue, 06 Jun 2006 14:58:07 +0000

It has often been said that “fighting words” are outside the protection of the First Amendment. What does that mean, and what exactly are fighting words? We’ll look at the evolution of this doctrine in this episode.

Chaplinksy v. New Hampshire
Cohen v. California
The Skokie Cases

Constitutional Law II #16: Prior Restraint

Neil — Tue, 06 Jun 2006 14:57:54 +0000

Speech may only rarely be held back from publication because it is considered unlawful. Rather, publication is allowed, with consequences to follow after the fact. When such publication is not allowed, a prior restraint is said to occur, and the First Amendment is not kind to such prior restraints.

Near v. Minnesota
Republican Party of Minnesota v. White
NY Times v. United States

Constitutional Law II #15: Various Terms

Neil — Tue, 06 Jun 2006 14:54:38 +0000

Before proceeding further, we need to define various terms. Content-neutrality, viewpoint-neutrality, overbreadth, vagueness, secondary effects, and other speech-related doctrines will be discussed here.

PD of the City of Chicago v. Mosley
Renten v. Playtime Theatres

Constitutional Law II #14: Clear and Present Danger II

Neil — Tue, 06 Jun 2006 14:54:25 +0000

After Holmes and Brandeis left the Court, the Clear and Present Danger test continued to evolve. It finds its current form in the very speech protective Brandenburg test, requiring both likelihood of imminent danger and intent to bring about that danger.

Dennis v. United States
Yates v. United States
Brandenburg v. Ohio

Constitutional Law II #13: Clear and Present Danger I

Neil — Tue, 06 Jun 2006 14:54:03 +0000

Current Speech Clause jurisprudence has its genesis in the clear and present danger doctrine. This doctrine developed through a number of dissents (and the occasional concurrence) from Holmes and Brandeis.

Schenck v. United States
Abrams v. United States
Gitlow v. New York
Whitney v. California

Constitutional Law II #12: Intro to Free Speech

Neil — Tue, 06 Jun 2006 14:53:45 +0000

We now turn to what has been called the “first among equals” within the Bill of Rights: the Freedom of Speech. We’ll look at the history of the Speech clause, along with the different models that have been suggested for speech protection.

Constitutional Law II #11: State Action

Neil — Mon, 05 Jun 2006 06:19:58 +0000

The Constitution provides a check on governmental power, but not necessarily a check on private behavior. (Obviously Congress can check private behavior by enacting legislation.) In this episode we will look at when state action exists.

Civil Rights Cases
White Primary Cases
Shelley v. Kramer
Marsh v. Alabama
Flagg Brothers, Inc. v. Brooks
Moose Lodge No. 107 v. Irvis
Jackson v. Metropolitan Edison Co.
Burton v. Wilmington Parking Authority

Constitutional Law II #10: Right of Treatment, Right to Die

Neil — Tue, 28 Feb 2006 08:59:00 +0000

Those who are constrained against their will (ie mentally ill) have a right of treatment. It is also undisputed that an individual has a right to refuse treatment. The difficulty is determining the scope of this right and how to balance it against the state’s varied interests. Additionally, an individual’s “right to die” raises troubling policy questions.

Cruzan v. Director, MO Dept. of Health
Washington v. Glucksberg

Constitutional Law II #9: Lawrence v. Texas

Neil — Tue, 28 Feb 2006 08:54:00 +0000

Can a state outlaw sodomy for the sole reason of “morality”? The Supreme Court’s answer, via Justice Kennedy, is no. Moral disapproval alone cannot suffice to restrict a liberty interest.

Bowers v. Hardwick
Lawrence v. Texas

Constitutional Law II #8: Casey and Stare Decisis

Neil — Wed, 15 Feb 2006 08:14:00 +0000

After nearly two decades of protest and dissent, Roe is re-examined. Or is it? The meaning and scope of stare decisis is disputed between the those who would abandon Roe and start fresh, and those who would hold on to the general concept of Roe while re-formulating the law.

Because I examine both the plurality and the dissent in detail, the length of this episode is significantly greater than normal.

Planned Parenthood of Southeastern Pennsylvania v. Casey

Constitutional Law II #7: Roe v. Wade

Neil — Wed, 15 Feb 2006 08:06:00 +0000

Perhaps the most divisive issue today is abortion. Roe v. Wade enunciated this right, setting off decades of protest and struggle from those on both sides of the issue.

Roe v. Wade

Constitutional Law II #6: Griswold and the Right of Privacy

Neil — Wed, 15 Feb 2006 08:01:00 +0000

We now begin a four episode set that concerns the so-called “right of privacy.” Contraception, abortion, and homosexuality will fall within this privacy right.

Griswold v. Connecticut

Constitutional Law II #5: Post-Lochner

Neil — Mon, 30 Jan 2006 10:37:00 +0000

What was the fallout from the Lochner decision? What categorized this era? And how did FDR’s court packing scheme help bring it to a close?

Muller v. Oregon
Nebbia v. New York
West Coast Hotel v. Parrish
United States v. Carolene Products
Williamson v. Lee Optical

Constitutional Law II #4: Lochner v. New York

Neil — Mon, 30 Jan 2006 10:36:08 +0000

We begin our examination of case law reflecting substantive due process with Lochner v. New York. A laissez-faire friendly Court created significant hurdles on infringement of what could be termed economic liberty, drawing two relatively famous dissents.

Lochner v. New York
Muller v. Oregon

Constitutional Law II #3: Intro to Substantive Due Process

Neil — Mon, 30 Jan 2006 10:35:54 +0000

Are the explicit rights guaranteed in the federal constitution the only rights protectable? If there are implicit rights, where do we find them? And who is to say what they are, or their reach? These and other questions without clear answers will be raised in this episode.

Constitutional Law II #2: Procedural Due Process

Neil — Mon, 30 Jan 2006 10:35:26 +0000

The less controversial aspect of Due Process is procedural due process. We will determine what a hearing is, as well as look at two cases impacting procedural due process.

Goldberg v. Kelly
Mathews v. Eldridge

Constitutional Law II #1: Intro to Constitutional Law II

Neil — Mon, 30 Jan 2006 10:35:08 +0000

In this episode we get a specific overview of the material that we will be covering this semester. We begin to discuss incorporation, the mechanism by which the protections of the federal constitution are applied against the states, as well as rough definitions of property and liberty interests.