Constitutional Law Essay

I. County of Austin v. Baker
1. Obscenity
The general standard for judging the constitutionally protected status of sexual speech is the test from Miller v. California (1973). Miller requires that, for sexual speech to be unprotected, it must have the following characteristics:
a.The material is such that, an average person, applying contemporary community standards, would that, as a whole, it appeals to the prurient interest (prurience being lustful desire or lasciviousness);
b. the material depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
c. the material, taken as a whole, lacks serious literary, artistic, political or scientific value.
The first and second prongs of this test are based on a community standard, but this is subject to a possible constitutional minimum (e.g., it would probably be constitutionally impermissible for any jury or judge to decide that, under a particular community’s standard, the movie “Eyes Wide Shut”� was patently offensive, see Jenkins v. Georgia (1974) (as a matter of law, “Carnal Knowledge”� cannot be considered patently offensive)).
In addition, the Supreme Court has made it clear that child pornography using live child models is unprotected, even if it would otherwise be protected under Miller (Ferber v. New York (1982)).
These rules yield the following results: first Miller prong is met; and since they depict ultimate sex acts, if a state law defines those acts with particularity then there’s a good chance that the second prong is satisfied. Without any more information about their merit, it seems like the third prong is also met, thus rendering the books susceptible to a government ban.
a. The child pornography would be subject to the Miller standard. It would not be subject the state’s wider latitude to regulate child pornography, due to the lack of child models.
b. The sex history books would probably be protected; even though they might show ultimate sex acts, these books
would probably be held to have serious merit and thus be protected.
c. The “Man’s World”� books would
probably be protected. Incidental nudity alone is probably not enough to satisfy Miller, but even if it was a state could ban these books only as part of an overall ban on obscenity, or a ban on the “most obscene”� books. But R.A.V. v. St. Paul (1992) and American Booksellers v. Hudnut (7th Cir. 1985) suggest that a state could not ban them based on their espousal of a particular viewpoint on, or their discussion of, the topic of gender relationships.
d. The Sexart books might be unprotected. The fact that the acts depicted take place in front of reproductions of art doesn’t therefore bestow artistic merit on the books.
Since the books are designed only to titillate there is a good chance that the
II. Alabama v. Collins
1. Incitement
The issue here is whether Collins can be prosecuted for her speech. The rule is provided by Brandenburg v. Ohio (1969), which states that, for speech to be subject to prosecution for inciting unlawful conduct, the speaker must have intended to incite such conduct as an immediate consequence of the speech (i.e., not at some indefinite later point) and that the speech have been objectively likely to succeed in doing so. The Court has generally been very speech protective in applying this test (e.g., Hess v. Indiana (1974); NAACP v. Claiborne Hardware (1982)).
It’s doubtful that the first prong is satisfied here. The speech was sharp, but its call for a “purge”� seems far more metaphorical rather than a call to immediate action. Without more facts indicating that she intended immediate action — e.g., suggestions to that effect, or the brandishing of a weapon — it’s doubtful that a court would find this prong satisfied.
The second of these prongs is more difficult to analyze given the lack of facts about the
emotional condition of the crowd. However, given how speech protective the Court has been in applying this test, it is likely that nothing short of an aroused crowd ready to act at a slight provocation by a speaker will satisfy this prong.
Conclusion: The prosecution will probably fail.
II. Baker v. The Divine Way
1. Libel
This issue raises the question of what standards the Constitution demands for libel convictions. Libel itself is not protected, but the First Amendment imposes restrictions on the standards of proof for libel claims in order to prevent speakers from being chilled from speaking due to a fear of large libel awards. (New York Times v. Sullivan (1964)). The question turns on (1) the identify of the plaintiff as a public or a private figure, and (2) the nature of the question as one of public or private concern (Gertz v. Robert Welch (1974)). In general, public figure plaintiffs face a higher burden of proof, and claims of libel on matters of public interest also require higher standards.
In this case, Baker would probably be a private figure. Like the attorney in Gertz, there are no facts here to indicate that Baker sought the media out; he was simply a businessman engaging in his business. Nor is he a public official like the sheriff in Sullivan. However, the matter — the introduction of pornography into the community — is probably a matter of public concern, as it concerns the moral tone and character of the community. This can be compared to the situation in Dun & Bradstreet
v. Greenmoss Builders (1985), which involved an allegedly libelous credit report sent by a credit reporting agency to a requesting company, which the Court held to be concerning a purely private matter.
This is the same combination — private figure suing on a matter of public interest — at issue in Gertz. In that case the Court stated that compensatory damages could be awarded if the plaintiff proved his case by any standard more than strict liability — in particular, negligence would be a constitutionally allowable standard for compensatory damages. However, punitive or presumed damages would have to be proven by a standard called “actual malice,”� which requires the plaintiff to prove that the defendant acted with either actual knowledge of the falseness of the statement, or reckless disregard of its falsity.
Here, Baker could surely prove negligence — the newsletter did not cross-check the information before it printed it, and it even got the name wrong of the person who had in fact been arrested. This might even suffice to show reckless disregard, since presumably any minimally careful editor would have noticed the different names and at least done some more investigation.
Conclusion: Baker can probably collect both compensatory and punitive damages.

I. CBC v. Retirement World
1. State Action
The first question that has to be asked is whether Retirement World is a state actor at all. Only state government and its sub-entities are bound by the Fourteenth Amendment, not private parties. In determining whether an ostensibly private party is in fact acting in a way that requires adherence to constitutional requirements, the courts have found four categories of state action:

a) private parties performing public functions;
b) government entangled with private parties;
c) legislative approval of private action; and
d) judicial enforcement of private action

Here, the only possible category that fits is the first one. In Marsh v. Alabama (1946) the Court found a company-owned town to be a state actor, as it had all the features of a town. The facts here are quite similar to that in Marsh, except that the residents themselves own the town. Homeowners of course are not state actors, but when they act together to create the semblance of a town, there is much more reason to find state action. While shopping centers have been found not to be state actors (Hudgens v. NLRB (1976)), the facts here are much closer to Marsh. Thus, even though the public function prong of the state action doctrine is limited, this is probably one situation where it would apply.
Conclusion: Retirement World is probably a state actor.
2. Free Exercise Clause
The question is whether the first ordinance violates the Free Religious Exercise Clause of the First Amendment. Generally speaking, if a statute burdens religious conduct only incidentally, as part of a generally applicable rule of conduct, then the Free Exercise claim fails. (Employment Division v. Smith (1990)). In Smith, for example, a generally applicable rule that firing from a job for drug use disqualifies one for unemployment compensation was held valid, despite the fact that it burdened the religious exercise of the plaintiffs, who smoked a hallucinogenic drug as part of a Native American religious ritual. However, government action aimed at religious exercise in particular will be subject to strict scrutiny and probably struck down (Church of the Babalu Aye v. Hialeah (1993)).
Here, there is reason to suspect that the statute, even though facially neutral, was motivated by concerns over the CBC’s rituals. The impetus from the statute arose because of the discovery of the cult’s action, and its exceptions suggest that very little animal cutting will be banned except that done by the CBC. Note also that any legitimate interest the town might have had in protecting animals could have been taken care of by an animal theft and/or an animal cruelty statute that would not have been so closely targeted at the CBC’s actions.
Note finally that it doesn’t matter whether the ritual is central or peripheral to the religion’s dogma. The Supreme Court has been unwilling to inquire, in Free Exercise cases, into the centrality of a particular ritual.
Conclusion: The cutting ordinance is probably unconstitutional.
3. Free Speech/Time Place and Manner Regulation
The parade ordinance seems to be a targeted law masquerading as a neutral law, here, a time, place, and manner restriction on speech. The first requirement of such restrictions is that they be content-neutral. Here, the ordinance is facially neutral, but because it was enacted immediately after the CBC started requesting permits, and because its numerical cut-off is just under the number of people necessary for the ritual, there’s good reason to believe that it is content-based. Thus, as a content-based restriction on speech in a traditional public forum — a street — the ordinance would have to satisfy strict scrutiny.
It is unlikely that the statute could satisfy strict scrutiny. There is no compelling reason for the restriction, except residents’ dislike of the speech or their fear that it will lead to converts, neither of which is a legitimate, let alone a compelling, reason for restricting speech.
If for some reason a court held that the ordinance was in fact content-neutral, then the ordinance would have to be narrowly tailored and allow the speakers an alternative means of making their message heard (Ward v. Rock Against Racism (1989)). The narrow tailoring requirement here is not as strict as that similarly-worded requirement in equal protection (Ward). Even so, it might be asked whether the speakers did in fact have an alternative means of speaking, since the ordinance bans all marches of six or more people for six months, thereby making it impossible for the CBC to perform the ritual as it is required to be performed, i.e., with seven individuals. Moreover, the ban on use of props would also make the ritual harder to perform, and thus burden speech, probably unnecessarily (since any legitimate government interest, such as a concern for safety or litter, could be taken care of by less speech restrictive means). A total ban on marches for that long a period is a significant burden on speech, which might fail even the lenient time, place or manner test.
Under either analysis, then, the ordinance is probably unconstitutional.
Conclusion: The parade ordinance would probably be declared unconstitutional.

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