First Amendment Freedoms, Equal Protection, and Due Process

Government Regulation of Speech and Expression

• Time, Place, and Manner Restrictions

  • The government cannot completely ban constitutionally protected speech, but it possesses the authority to regulate the time, place, and manner in which speech occurs.
  • Permissible restrictions include:
    • Prohibiting parades in residential neighborhoods at midnight using loudspeakers.
    • Restricting businesses from erecting large billboard advertisements for strip clubs directly adjacent to schools.

• Unprotected Speech Categories

  • The government holds the legal authority to completely restrict speech that is dangerous or defamatory.
  • Political Speech vs. Violent Overthrow: Advocating for changing the system of government constitutes protected political speech; however, advocating for the violent overthrow of the government is unprotected and illegal.
  • Child Pornography: Unprotected under all circumstances and completely illegal.
  • Obscenity: Unprotected speech defined as material appealing predominantly to the prurient interest in sex while lacking any redeeming societal value.

Freedom of Religion and the Establishment Clause

• Definition and Legal Scope of Religion

  • The United States provides the strongest and most permissive First Amendment protections to religious organizations of any constitutional guarantee, with the modern Supreme Court expanding these protections for both individuals and commercial enterprises.
  • Legal Definition of Religion: A sincerely held belief that occupies a position parallel to that filled by God in an individual's life.
  • Scope: Encompasses major Abrahamic religions (Christianity, Judaism, Islam), other major global faiths (Hinduism, Sikhism, Shinto), and any sincerely held belief system operating in the place of God.
  • Protection of Cults: Groups classified as cults and outlawed in foreign jurisdictions receive full First Amendment protection. For example, the Church of Scientology is designated as a cult by the German government but is a legally protected religion in the United States.

• The Establishment Clause

  • Textual Guarantee: "Congress shall make no law respecting an establishment of religion."
  • Prevention of a National Religion: Prohibits the creation or recognition of an official national religion. Other nations maintain official state religions, including:
    • Vatican City: Catholicism (headed by the Pope as leader of the Roman Catholic Church).
    • Israel: Judaism.
    • England: The Church of England (referred to as Episcopalian in the United States).
    • Nordic Countries: Lutheranism.
    • Various Arab Countries: Specific branches of Islam.
  • Prohibition of Tax Funding: Public tax revenues paid by individuals or commercial businesses cannot be allocated to religious entities. In contrast, a small percentage of tax revenue in England can be utilized to maintain historic cathedrals and churches.

• Endorsement of Religion

  • The government is strictly prohibited from promoting one specific religion over another, or promoting religion over nonreligion.
  • School Prayer: Compulsory or organized prayer in public schools is unconstitutional because it impermissibly endorses religion over nonreligion.
  • Blue Laws and Mandatory Closures: The Supreme Court prohibits governments from forcing commercial businesses to close on religious holidays, such as Christmas or Easter.

The Free Exercise Clause and Religious Practices

• Free Exercise Framework

  • Textual Guarantee: Prevents Congress from prohibiting the free exercise of religion, guaranteeing the right to practice and express religious beliefs.
  • Belief vs. Practice:
    • Belief: The internal thought itself. The government is strictly prohibited from restricting or interfering with religious beliefs.
    • Practice: The outward expression or conduct driven by a belief (e.g., attending church services on Sunday).
  • Prohibition vs. Inhibition:
    • The government cannot prohibit beliefs, but it may inhibit (obstruct or place operational burdens on) certain physical practices through neutral laws.

• Santeria Case Study

  • Santeria is a faith fusing West African religious beliefs with Catholicism, practiced primarily by Haitian immigrants.
  • Following a severe hurricane in the late $1980\text{s}$, a significant enclave of Haitian immigrants settled in Florida.
  • Adherents practiced ritual chicken sacrifice as a core element of their faith.
  • Local municipalities enacted ordinances requiring anyone slaughtering an animal to obtain a specialized government license and perform the slaughter exclusively inside a designated butchering facility.
  • Because practitioners met in private homes and lacked commercial butchering facilities, the law placed an operational inhibition on their practice.
  • The court invalidated the law, ruling that animal sacrifice is constitutional and that the municipal restrictions were invalid because they were enacted specifically to suppress religious practice.

• Completely Prohibited Religious Conduct

  • Human Sacrifice: Absolutely illegal under all circumstances, regardless of whether the victim volunteers or it forms a core tenets of a faith.
  • Polygamy: Illegal under federal and state law; individuals are barred from having more than one spouse (historically enforced against Mormons).
  • Controlled Substance Ingestion: The Supreme Court has ruled that ingesting illegal substances, such as peyote during traditional Native American religious ceremonies, is not constitutionally protected.

• Commercial Business Rights

  • The government cannot enact measures that prevent religiously based commercial enterprises (such as Christian bookstores or businesses selling religious headscarves) from operating.

Constitutional Equal Protection and Classifications

• Constitutional Basis

  • Fifth Amendment: Enforces equal protection guarantees against the federal government.
  • Fourteenth Amendment: Enforces equal protection guarantees against state governments via the doctrine of incorporation.
  • Core Rule: The government is barred from arbitrarily treating one group or class of individuals differently from another group.

• Classifications and Statutory Language

  • Classifications occur when a legislative body groups individuals together based on specific characteristics (e.g., historical Jim Crow laws that created separate legal standards based on race).
  • Any statute treating groups differently automatically triggers an Equal Protection Analysis.
  • Constitutional Terminology ("Person" vs. "Citizen"):
    • Phrasing using "no person shall be deprived" applies equal protection guarantees to all human beings physically present in the United States, including undocumented immigrants (a rule established in the $1800\text{s}$).
    • Phrasing specifically invoking "citizen" restricts protections exclusively to United States citizens.

• Definition of Fundamental Rights

  1. Express Rights: Rights explicitly articulated in the text of the Constitution (e.g., Freedom of Religion).
  2. Common Law Rights: Fundamental rights not explicitly written in the constitutional text but recognized and created by Supreme Court justices through judicial interpretation (common law).

Standards of Judicial Review

• Strict Scrutiny

  • Applicability: Applies when a law infringes upon a fundamental right OR creates distinctions based on suspect classifications.
  • Suspect Classifications: Race, National Origin, Religion, and Alienage (United States citizenship status).
  • Judicial Presumption: The court presumes the law is invalid and unconstitutional.
  • Standard of Review: The law will be upheld ONLY IF the government proves the legislation is necessary to achieve a compelling government objective.
  • Fundamental Rights Examples:
    • The right to marry.
    • The right to reproduce/have children. (e.g., A Pennsylvania state law requiring individuals on government assistance to undergo mandatory birth control was struck down as unconstitutional).
  • Korematsu Case Study ($1941$):
    • In December $1941$, the Empire of Japan bombed the United States naval fleet at Pearl Harbor, drawing the nation into World War II.
    • The President issued an executive order mandating that Japanese citizens and United States citizens of Japanese descent be removed from their homes, stripped of their businesses, and placed in internment camps.
    • In Korematsu, the Supreme Court applied strict scrutiny but upheld the internment orders, ruling that national security represented a compelling government objective that rendered the action necessary.

• Intermediate Scrutiny

  • Applicability: Applies when a law treats individuals differently based on protected classes.
  • Protected Classes: Gender, Age, Sexual Orientation, and Commercial Speech.
  • Commercial Speech Standard: Although speech is generally a fundamental right, commercial speech (business advertising) receives intermediate scrutiny, granting the government broad regulatory latitude.
  • Judicial Presumption: Presumed invalid, but subject to a significantly easier burden of proof for the government than strict scrutiny.
  • Standard of Review: The law will be upheld IF it is substantially related to a legitimate government interest.
  • Age Restriction Application:
    • Age thresholds for purchasing alcohol (age $21$) or state-level restrictions on purchasing marijuana (e.g., Illinois state laws).
    • Legitimate Interest: Grounded in public health and safety studies from the $1960\text{s}$ and $1970\text{s}$ asserting that individuals under $21\text{ years of age}$ were statistically more likely to engage in driving under the influence (DUI).

• Rational Basis Test

  • Applicability: Applies to all other legal classifications not covered by strict or intermediate scrutiny.
  • Judicial Presumption: Presumed valid.
  • Standard of Review: The law is invalidated ONLY IF the challenger proves the action is not rationally related to a legitimate government purpose.
  • Business Application: States may charge higher licensing fees or mandate specialized liquor licenses for bars compared to standard dining restaurants due to the rational need for heightened public safety oversight.

Procedural and Substantive Due Process

• Due Process Foundations

  • Governed by the Fifth Amendment (federal) and Fourteenth Amendment (state).
  • Dictates the requirements the government must meet before depriving any individual or commercial entity of life, liberty, or property.
  • Categories of Deprivation:
    • Life: Capital punishment / death penalty (historically executed via hanging).
    • Liberty: Imprisonment or incarceration.
    • Property: Primary focus of business law; includes corporate capital, real property, licenses, and monetary fines or fees.

• Procedural Due Process

  • Defines the procedural mechanism ("how") rights and property may be taken.
  • Mandatory Requirements:
    1. Notice: The government must explicitly inform the target entity what legal action is being taken and the underlying reasons why (e.g., written notice of intent to revoke a liquor license for underage alcohol sales).
    2. Opportunity to be Heard: The government must afford the entity an opportunity to present a defense before a neutral third party (typically a judge).
  • Traffic Ticket Example: A citation explicitly details the vehicle speed, the specific statute violated, the calculated fine amount, and instructions on when and where to appear in court.

• Procedural Balancing Test

  • Determines the extent of procedural protection required by balancing the severity of what is being taken against the strength of the government's interest.
  • Minor Property Infringements: A $\$50$ parking fine or minor speeding ticket requires minimal process (e.g., a short, $5\text{-minute}$ hearing before a municipal judge in Chicago).
  • Criminal Property/Liberty Charges: Theft allegations entitle the accused to formal proceedings, full trials, and jury representation.
  • Capital Cases: Actions seeking to take human life automatically trigger maximum procedural safeguards, including mandatory rights of appeal.

• Substantive Due Process

  • Defines the substantive nature ("what") of the right the government is seeking to take.
  • If the government attempts to take away a fundamental right, courts apply Strict Scrutiny (presumed invalid; government must prove a compelling objective such as national security).
  • If the government attempts to take away a non-fundamental right, courts apply the Rational Basis test.