Affirmative action is defined as a set of procedures designed to eliminate unlawful discrimination among applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future. Applicants may be seeking admission to an educational program or looking for professional employment.
Whether (1) Citizens United may challenge BCRA's disclosure requirements imposed on "electioneering communications" as-applied to Hillary: The Movie; (2) whether the disclosure requirements are overly burdensome as-applied to Hillary: The Movie; (3) whether Hillary: The Movie should be construed as advocating to the viewers how to vote, subjecting it to the "electioneering communications" corporate prohibition; and (4) whether Hillary: The Movie should be considered an "advertisement," making it subject to the BCRA's disclosure and disclaimer regulations.
Prior to the 2008 primary elections, Citizens United, a nonprofit corporation dedicated to educating the American public about their rights and the government, produced a politically conservative ninety-minute documentary entitled Hillary: The Movie ("The Movie"). This documentary covers Hillary Clinton's record while in the Senate, the White House as First Lady, and during her bid for the presidential Democratic nominee, and contains express opinions about whether she would be a good choice for President. However, The Movie falls within the definition of "electioneering communications" under the Bipartisan Campaign Reform Act of 2002 ("BCRA")-a federal enactment designed to prevent "big money" from unfairly influencing federal elections-which , among other things, prohibits corporate financing of "electioneering communications" and imposes mandatory disclosure and disclaimer requirements on such communications. The District Court for the District of Columbia denied Citizens United's motion for a preliminary injunction to enjoin the Federal Election Commission ("FEC") from enforcing these provisions of the BCRA against Citizens United. The questions the Supreme Court will have to decide are (1) whether BCRA's disclosure requirements imposed on "electioneering communications" are to be upheld against all as-applied challenges' (2) whether BCRA's disclosure requirements are overly burdensome and fail a strict scrutiny test as-applied to The Movie; (3) whether The Movie is a "clear plea for action to vote," subjecting it to the "electioneering communications" corporate prohibition; and (4) whether The Movie constitutes an advertisement, making it subject to the BCRA's disclosure and disclaimer regulations.
1. Whether all as-applied challenges to the disclosure requirements (reporting and disclaimers) imposed on "electioneering communications" by the Bipartisan Campaign Reform Act of 2002 ("BCRA") were resolved by McConnell's statement that it was upholding the disclosure requirements against facial challenge "for the entire range of electioneering communications' set forth in the statute." Mem. Op. I, App. 15a (quoting McConnell v. FEC, 540 U.S. 93, 196 (200)).
2. Whether BCRA's disclosure requirements impose an unconstitutional burden when applied to electioneering communications protected from prohibition by the appeal-to-vote test, FEC v. Wisconsin Right to Life, 127 S. Ct. 2652, 2667 (2007) ("WRTL II"), because such communications are protected "political speech," not regulable "campaign speech," id. at 2659, in that they are not "unambiguously related to the campaign of a particular federal candidate," Buckley v. Valeo, 424 U.S. 1, 80 (1976), or because the disclosure requirements fail strict scrutiny when so applied.
3. Whether WRTL II's appeal-to-vote test requires a clear plea for action to vote for or against a candidate, so that a communication lacking such a clear plea for action is not subject to the electioneering communication prohibition. 2 U.S.C. § 441b.
4. Whether a broadcast feature-length documentary movie that is sold on DVD, shown in theaters, and accompanied by a compendium book is to be treated as the broadcast "ads" at issue in McConnell, 540 U.S. at 126, or whether the movie is not subject to regulation as an electioneering communication.
Citizens United ("Citizens") is a non-profit corporation with the stated purpose of being "dedicated to restoring our government to citizens' control [t]hrough the combination of education, advocacy, and grass roots organization." See Citizens United. Prior to the 2008 primary elections, Citizens produced a documentary titled
Is the City of Austin’s sign code, which distinguishes between on- and off-premises signs, an unconstitutional content-based regulation of speech?
This case asks the Supreme Court to consider whether a city sign code’s differential treatment of on-premises and off-premises signs constitutes a content-based regulation of speech. The City of Austin’s sign code permits on-premises, but not off-premises, signs to be digitized, and bans the construction of new off-premises signs. Austin argues that this distinction is a lawful, content-neutral regulation. Reagan National Advertising of Texas counters that Austin’s on- versus off-premises distinction constitutes an unlawful, content-based restriction under Reed v. Town of Gilbert and the Court’s First Amendment jurisprudence. The outcome of this case has important implications for governments considering roadway safety measures and for entities who advertise through off-premises signs like billboards.
Whether the Austin city code’s distinction between on-premises signs, which may be digitized, and off-premises signs, which may not, is a facially unconstitutional content-based regulation under Reed v. Town of Gilbert.
Respondents Reagan National Advertising of Austin, LLC. (“Reagan”) and Lamar Advantage Outdoor Company, L.P. (“Lamar”), are involved in the outdoor advertising business. Reagan National Advertising of Austin, Inc. v. City of Austin, at 699. In April and June 2017, Reagan applied for permits to convert their existing off-premises signs into digital signs.
The State of Washington and several Washington educational employees brought suit against the Washington Education Association alleging that the union impermissibly used non-union member “shop fees” to finance political activities in violation of Wash. Rev. Code § 42.17.760's requirement that the union receive affirmative authorization from nonmembers before using their fees for political purposes. The Washington Supreme Court sided with the union and struck down § 760 as unconstitutional. Washington argues that the union does not have a First Amendment right to use shop fees for political purposes. The union responds that § 760 essentially blocks its ability to assert a collective political voice and must survive strict scrutiny to pass constitutional muster. The Supreme Court's decision will determine the balance of First Amendment protection granted to a labor union relative to the protection afforded to dissenting nonmembers who pay shop fees.
The Washington Employment Association (WEA) is the exclusive bargaining agent for 70,000 Washington state educational employees. Washington State Public Disclosure Commission v. Washington Education Association (WEA), 130 P.3d 352, 354 (2006).
Whether Washington’s Public Records Act (“PRA”), which makes signatures on referendum petitions part of public records, violates the First Amendment.
The dispute in this case centers on Washington's Public Records Act ("PRA"), which requires state and local governments to make public the identities of referendum petition signers. Petition signers challenged the constitutionality of this disclosure, but the Ninth Circuit held that disclosure of petition signers’ identities serves an important government interest and promotes government accountability. Specifically, petitioners, John Doe #1, et al. ("Doe #1"), argue that petition signing is core political speech and, therefore, is subject to First Amendment protections. Respondents, Washington Secretary of State Sam Reed, et al. ("Reed"), contend that petition signing, especially the signing of referendum petitions, is not political speech. Rather, Reed asserts that signing a referendum is a legislative act and a "quintessentially public" exercise. Thus, in Doe #1 v. Reed the Supreme Court must decide 1) whether petition signers’ First Amendment rights to privacy in political speech, association, and belief requires strict scrutiny when a state compels public release of identifying information and 2) whether compelled disclosure of petition signers’ identities is narrowly tailored to further a compelling state interest.
The district court granted a preliminary injunction protecting against public disclosure, as opposed to private disclosure to the government only, of those signing a petition to put a referendum on the ballot ("petition signers"). The Ninth Circuit reversed, concluding that the district court based its decision on an incorrect conclusion of law when it determined that public disclosure of petition signers is subject to, and failed, strict scrutiny. The questions presented are:
1. Whether the First Amendment right to privacy in political speech, association, and belief requires strict scrutiny when a state compels public release of identifying information about petition signers.
2. Whether compelled public disclosure of identifying information about petition signers is narrowly tailored to a compelling interest, and whether Petitioners met all the elements required for a preliminary injunction.
On May 18, 2009, the Governor of Washington signed SB 5688. See Doe #1 v. Reed, 586 F.3d 671, 674-75 (9th Cir.
Equal protection means that a government must apply its laws fairly and cannot treat people differently without a valid reason. Individuals in similar situations should be treated alike under the law.
Does the University of Texas at Austin’s use of racial preferences in its admissions process violate the Equal Protection Clause of the Fourteenth Amendment?
In this case, the Supreme Court will consider whether the University of Texas at Austin (“UT”)’s admissions policy, which considers race, is constitutional under the Equal Protection Clause of the Fourteenth Amendment. Abigail Fisher applied to UT for admission to its 2008 freshman class. Fisher v. University of Texas at Austin, et al., 758 F.3d 633, 637 (5th Cir. 2014). As part of its admission process, UT computes and considers Personal Achievement Index (“PAI”) Scores, which include various personal characteristics of applicants, including their race. UT does not assign a numerical score or value to the elements of an applicant’s PAI. See id. at 638. Ultimately, UT denied Fisher admission based on her PAI scores, and Fisher would not have received a seat in the 2008 class, even with a perfect PAI score, regardless of race. See id. at 639. In Fisher I, Fisher alleged that UT’s admission policy violated the Fourteenth Amendment. The Supreme Court ultimately remanded that case to the Court of Appeals for the Fifth Circuit, so the appeals court could consider whether UT’s admission policy survives strict scrutiny under Grutter v. Bollinger, 123 S. Ct. 2325 (2003). See Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013). The Fifth Circuit held that the policy did survive strict scrutiny. On appeal to the Supreme Court, Fisher argues that UT’s pursuit of intra-racial diversity is not a clearly articulated compelling government interest, and its admissions scheme is not narrowly tailored to achieving that interest. See Brief for Petitioner, Abigail Noel Fisher at 25, 30, 38. UT argues that the Court has already held that a university’s interest in diversity is compelling, and that UT’s admissions policy is narrowly tailored, because race-neutral approaches are insufficient to achieve its interest. See Brief for Respondents, University of Texas at Austin, et al. at 25, 40, 42. The outcome of this case will affect the admissions schemes and racial demographics of universities.
Can the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher v. University of Texas at Austin?
Abigail Fisher applied to the University of Texas at Austin (“UT”) for admission to its fall 2008 class. Fisher v. University of Texas at Austin, et al., 758 F.3d 633, 637 (5th Cir.
A “forum” in First Amendment law refers to the place in which a “speaker” speaks. The First Amendment's protections regarding the right to speak and assemble will vary based on the speaker's chosen forum.
What level of judicial review is required for a court to evaluate a law that intends to protect minors from pornographic content but, as a result, burdens adults’ access to such content?
H.B. 1181 is a Texas law seeking to regulate commercial entities that publish sexual material. When more than one-third of the entities’ published material is sexually explicit, H.B. 1181 requires those entities to implement age verification systems. Free Speech Coalition argues that H.B. 1181’s age verification provision burdens adult access to constitutionally protected speech and thus the Supreme Court should apply strict scrutiny when reviewing it. Free Speech Coalition further argues that it meets the requirements for a preliminary injunction on the enforcement of H.B. 1181’s age verification provision. Paxton, on the other hand, argues that rational basis review should apply to the age verification provision because it is not content-based or speaker-based discrimination. Paxton further counters that Coalition has not proved it meets the requirements for a preliminary injunction on the enforcement of the age verification provision. The Supreme Court’s decision in this case will influence how future statutes impacting protected speech may be reviewed by courts, how state governments can regulate pornography distributors to protect minors, and how the data privacy and cybersecurity of adults who use pornography websites will be weighed by the courts.
Whether the court of appeals erred as a matter of law in applying rational-basis review, instead of strict scrutiny, to a law burdening adults’ access to protected speech.
H.B. 1181 is a Texas law intended to apply to commercial entities that publish sexual material. Free Speech Coal. v.
The authors would like to thank Professor Nelson Tebbe for his insights into this case.
Intermediate scrutiny is a test courts often use in the field of Constitutional Law to determine a statute's constitutionality.
