Constitutional Law II Outline - Professor Wallace - Campbell Law - Part 9

Central Hudson Test: Intermediate scrutiny for restrictions on commercial speech EVEN IF content based

1. Whether expression is protected by 1A (ie- not misleading)
2. Whether asserted government interest is substantial (intermediate)
3. Whether regulation directly advances that interest
4. Whether regulation is not more extensive than necessary to further that interest
   • Still can’t be viewpoint based. Looking for if attempt is to regulate commercial aspect of speech rather than political speech.

44 Liquor Mart v. Rhode Island: law regulated “advertising in any manner” the price of alcohol except for on price tags and signs in liquor stores

• Court held this was unconstitutional (why?)

Campaign finance and Compelled speech

• Basically: Contribution (supporting candidate) → intermediate scrutiny
  • Independent expenditures (speaking for or against candidate) → strict scrutiny
    • Think- core of 1A protection is expressing political views
• Corporations are expressive associations but are still prohibited from directly giving to political candidates
  • But- PAC spends $ on advertisement saying Hillary sucks? → expenditure that is fairly protected

1. Right not to Speak
2. Right to Expressive Association

Expressive association focuses on if message group wants to send gets compromised because of inclusion of others. Different from compelled speech where they make you say something

Democratic Party vs. Wisconsin: state law said political parties can’t limit who participates in the primary, democrats sue → law was unconstitutional b/c forced democratic party to associate w/ people who have ideas different than their own

Roberts v. US Jaycees: USJ was an all-male/male only group. Law forced them to accept women. USJs included women in all of organization activities except being voting members. USJs went to court & said that admitting women would compromise the message they wanted to send. Record showed their claim wasn’t plausible for expressive association violation (already had limited membership for women → shows their message wouldn’t be compromised.

• Wallace thinks if it would’ve won w/ legitimately compromised purpose
  • Ie- USJ’s didn’t allow women at all/ever—then USJ would’ve won

Boy Scouts v. Dale: Dale openly gay & wanted to urge Scouts to change policy on gay people. Message of Scouts at time was that it was incompatible w/ their “morally straight” mission. (Morally straight defined as sexually straight.) Would forced inclusion of Dale have altered that message? Yes because would be allowing someone in as Scout master that didn’t align with their message of moral straightness. Scouts have right to choose who they associate w/ & don’t have to compromise their message. For purpose of defining group’s message who gets to decide? Policy-making body of organization. No requirement that you have to have a long-standing position/policy in place

• Rule: Right to associate & protect message of association is protected.
  • Association gets to decide what their message is because they have protected right to control it.
    • No requirement that you have to have a long-standing position/policy in place.
  • Association can also decide to change that message.
    • Which Scouts did.
  • If state is forcing Scouts to associate w/ someone that compromises their message In violation of free association. → Strict scrutiny triggered.
  • Does state have compelling gov. interest in eliminating discrimination against gays?
    • This same Q was seen in Hurley → Does state have compelling gov. interest in eradicating discrimination against gays?
    • Spectrum of Gov. Activities → Public Accommodations → Private Associations
      • Gov. activities: State has compelling interest in eliminating discrimination here
      • Public Accomodations: State has compelling interest in eradicating discrimination as long as not violating someone’s rights
      • Private Association: No compelling interest
        • Ie- dinner party, women’s bible study
  • In order to violate expressive association, not required that person advocates against group’s purpose, can just be inconsistent with it
    • Ie- Boy Scouts leader could have been excluded just for being openly gay, didn’t have to be the big advocate he was

Christian Legal Society v. Martinez: Court upholds school rule that clubs would not be recognized if they required certain religion to become a member (still were able to attend)

• Court “reasonable in light of forum” to promote diversity
  • Wallace: so we’re going to promote diversity by making every claim the same thing?
    • This is viewpoint discrimination, not followed, court is all sorts of messed up on this one