Chapter 3: Litigating Cases Involving Fundamental Freedoms

When addressing allegations that constitutional rights have been violated, courts must first find that the asserted rights are protected by the US Constitution. If they are not, this does not end the case. They may be protected by a federal statute, or a state constitution, or state law, which means they will not be addressed in this book, which focuses only on constitutional rights.

In most cases where government action is challenged under the Due Process Clause, the test is whether “there is a rational basis on which the legislature could have thought it would serve legitimate state interests.” See, e.g., Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 291 (2022). This is usually a test that is easily met by most government actions. Rarely do legislatures pass laws that without some rational basis. As a result, it is very difficult to convince a court to strike down a law to which this rational relationship test applies. But that is not the test that applies to violations of the rights addressed in this book.

In 1923, Congress passed the Filled Milk Act, which prohibited the shipment in interstate commerce of “skimmed milk compounded with any fat or oil other than milk fat, so as to resemble milk or cream.” Lobbying by the dairy industry convinced Congress to pass the law; there was nothing harmful about “filled milk.” The Caroline Products Company was convicted of violating this law by selling Milnut, a mixture of skimmed milk and coconut oil. It challenged the conviction on the grounds that the law exceeded Congressional powers under the Commerce Clause, and also that it violated the Due Process Clause. In United States v. Carolene Products Co., 304 U.S. 144, 152 (1938), the Court had no difficulty rejecting these claims, holding that “regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless, in the light of the facts made known or generally assumed, it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.”

However, Justice Harlan Fiske Stone added footnote 4 to the above statement: “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. . . . Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U. S. 510, or national, Meyer v. Nebraska, 262 U. S. 390; Bartels v. Iowa, 262 U. S. 404; Farrington v. Tokushige, 273 U. S. 284, or racial minorities, Nixon v. Herndon: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”

Since selling Milnut was not a constitutional right, and the Congressional prohibition did not affect “discrete and insular minorities,” there was no need for heightened scrutiny in this case. However, six years later, the Court addressed a challenge to the Japanese exclusion orders that forced all persons on the West Coast to sell their property and move to inland camps on the grounds that the US military had deemed them likely to engage in sabotage. In Korematsu v. United States, 323 U.S. 214, 216 (1944), Justice Hugo Black stated at the beginning of his opinion: “{A]ll legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.” Black went onto conclude that the need for national security while the US was at war with Japan justified the orders against persons the military found likely to engage in sabotage.^[1]

However, the Court did not fully explain what heightened scrutiny meant until it decided Sherbert v. Verner, a case discussed in unit four, chapter 2. Sherbert concerned whether a state could deny unemployment compensation to an employee who had been terminated for failing to work on the sabbath. The Court held that this decision substantially infringed her right to practice her religion, and that the restriction could only be justified by “some compelling state interest” coupled with a demonstration that “no alternative forms of regulation would combat” the problem the state sought to prevent “without infringing First Amendment rights.” 374 U.S. at 406-407. Finding that this test had not been met, the Court overturned the decision denying compensation.

The Court further refined its strict scrutiny test four years later in Shapiro v. Thompson, which is further discussed in unit seven, chapter 2. Shapiro addressed a states’ policy of denying public assistance to new state residents until they met a one-year residency requirement. The Court recognized that the constitution protected a fundamental right to interstate travel, and held that states could not infringe on this right unless they could demonstrate that the infringement was “necessary to promote a compelling governmental interest.” 394 U.S. at 634. Constitutional scholar Richard Fallon summarizes this test as follows: “To satisfy strict scrutiny, the government must demonstrate a compelling interest, and it must further show that a challenged statute or regulation is either necessary, narrowly drawn, or narrowly tailored to protect that interest.” Strict Judicial Scrutiny, 54 U.C.L.A. L. Rev. 1267, 1283 (2007).

In determining whether strict scrutiny should apply to a claim that a constitutional right has been violated, Fallon suggests a three-part inquiry. First, does the claimed right trigger a heightened level of scrutiny? This requires evaluating the scope of the infringement, not just the right at issue. For example, consider a protester’s application to hold a parade on a city’s main street every Monday at 8 am. While this undoubtedly involves a free speech claim, the repetitive nature of the application and the burden on commuters would not trigger strict scrutiny since the Court has held that reasonable time, place and manner restrictions can be placed on the use of public space. However, the denial of a one-time application would be more likely to receive strict scrutiny, especially if the day chosen was integrally related to the reason for the protest.

The second part of the inquiry is whether the government can articulate a compelling interest for the restriction. Fallon suggests that the first consideration should be whether such an interest can be found in the Constitution. For example, national defense is undoubtedly reflected in the powers granted to the President and Congress, so the government’s interest in preventing the disclosure of state secrets would be compelling. Similarly, constitutional protections for voting suggest that the government has a compelling interest in a fair voting process. But as Fallon points out, this does not end the inquiry because the interests at stake in particular cases are far from generic. Consider a state law requiring that voters provide both proof of identity and proof of residence at each election. Is the government’s interest in preventing voting fraud greater than the interest in giving all qualified voters access to the polls, which is also a constitutional interest? In evaluating a constitutional challenge to a ban on the ownership of automatic weapons, is the constitutional interest in protecting the right of self-defense greater than the right of the people to protection for public safety? In determining the scope of the specific interest at stake, and resolving possible conflicts between constitutional values, courts have significant discretion.

The third part of the strict scrutiny test is whether the restriction represents the least restrictive means of achieving the government’s compelling interest. Consider a terrorist screening process that incorporates as one factor whether the traveler is Muslim. Such a criterion by itself would be overinclusive, as the vast majority of Muslims are not terrorists. But in the context of other criteria, such as social media posts supporting jihad, this factor may well be a reliable indicator of potential terrorist sympathies. Whether a court would rule the use of such a criterion unconstitutional or not depends upon how closely it believes the criterion to be related to the government’s goal, and probably also the importance of that goal. There is no clear test for how much over-inclusivity demonstrates the lack of a more narrowly-tailored restriction. This is why the last prong of strict scrutiny is the most difficult to apply, and thus the prong most open to debate among the justices.

Fallon suggests that applying the last two prongs of this test “is likely to involve fluid, two-way traffic in which assessments of ends and means occur simultaneously–at least in cases in which challenged governmental regulations, viewed realistically, will at best merely reduce risks or incidences of harm more or less effectively than would other regulations. For example, although the Supreme Court could ask whether a particular challenged regulation is necessary to promote the compelling governmental interest in avoiding a calamitous terrorist strike, what is really involved is risk reduction, rather than sure prevention. The Court must determine whether infringements of constitutional rights, which can be more or less grievous, can be justified in view of the benefits likely to be achieved, the scope of infringement of protected freedoms, and the available alternatives.” Id. at 1333. This means that the application of strict scrutiny can change over time, so that a restriction imposed in the immediate aftermath of September 11, 2001 could be constitutional at the time but not a decade later.

The Court uses strict scrutiny in many cases where fundamental rights are infringed. However, there are exceptions that depend upon the context in which the right is asserted. In situations where the government has strong countervailing interests, the Court applies a less demanding version of “intermediate scrutiny.” This is often referred to as the O’Brien test: “a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression, and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” United States v. O’Brien, 391 U.S. 367, 377 (1968) (included in unit five, chapter 2). It is applied whenever the government’s interest in regulating speech is not based on the speech itself, but on a different interest.

The most common area where intermediate scrutiny is applied is to regulations of the time, place and manner of communication, which are often referred to as TPM restrictions. The government must allow for communication in typical public forums such as public parks, plazas, and streets, but it may place reasonable regulations upon their use. As long as these regulations are not related to the content of the communication, they do not have to satisfy the strict scrutiny standard that is almost always fatal to the constitutionality of speech restrictions. For example, in Clark v. Community for Creative Nonviolence, 468 U.S. 288 (1984). a group seeking to publicize the problems of homeless persons sought a permit to erect symbolic tent cities in Lafayette Park and the Mall in Washington, D.C. The National Park Service granted the permit, subject to the condition that members of the group not sleep there overnight. It required this limit because it prohibits camping in national parks except in designated campgrounds. The Court held that since this was a regulation unrelated to the speech at issue, it need only satisfy intermediate scrutiny, which requires that regulations that impact speech be “justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” Id. at 293. The Court found “there is a substantial Government interest in conserving park property, an interest that is plainly served by, and requires for its implementation, measures such as the proscription of sleeping that are designed to limit the wear and tear on park properties. That interest is unrelated to suppression of expression.” Id. at 299. Therefore, the TPM restriction was constitutional. Although this test is often referred to as the O’Brien test, the case most often cited for that test is Clark.