CONSTITUTIONAL LAW II

Spring Semester 2004

Stephen Hunt, Jr.

MMMMMDCLXXVI. Due Process

A.

Procedural Due Process (tested in MC section)

The due process clause has its roots in the Magna Carta and is designed to protect a persons
life, liberty and property interests from governmental invasion unless the government has used
due process of law which means that there must be some sort of administrative or judicial
procedure in the form of a hearing.

9284. Life, liberty, or property: There cannot be a procedural due process problem unless the
government is taking a persons life, liberty or property. There is no general interest in having
the government behave with fair procedures.
9285. Property: Most procedural due process problems involve the issue of whether the timing being
taken constitutes property.
9286. Government benefits may or may not constitute property rights. Generally, if one is just
applying for benefits, one does not have a property interest in those benefits. But if a person has
already been getting the benefits, usually hes got a property interest in continuing to get them,
so the government cannot terminate those benefits without giving him procedural due process.
The same analysis generally applies to government jobs: if youre just applying for the job, you
dont have a property interest in it, but if you already have the job, then you may have a
property interest, which entitles you to fair procedures before the job can be taken away.
9287. Process required: Once you determine that a persons interest in property or liberty is being
impaired, you have to determine exactly what procedures the person is entitled to get.
9288. Non-judicial proceeding: Usually, the issue arises in a non-judicial proceeding (e.g. taking
away someones government job or government benefits). In general, in a non-judicial
proceeding, the state does not have to give the individual the full range of procedural safeguards
needed for a court proceeding. Instead, the court conducts a balancing test to determine the
required procedures the strength of the plaintiffs interest in receiving a particular procedural
safeguard is weighed against the governments interest in avoiding extra burdens from having to
give that safeguard. Thus, in a particular situation the government may or may not have to give,
say, a hearing depending on the strength of the plaintiffs interests and the burden to the state in
giving the hearing.
The requirement that the government act with procedural due process derives from the Fifth
Amendment (federal government) and the Fourteenth Amendment (states). Both clauses
prevent the government from depriving any person of life, liberty, or property, without due
process of law. Only when life, liberty or property are being taken is the government
required to act with procedural correctness. If none of these interests is implicated by a
particular government act, the government may act as arbitrarily or unfairly as it wishes.
* Note: There is only an equal protection clause in the fourteenth amendment.
5th Amendment Federal Government
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No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases arising in the land or navel forces, or in the
Militia, when in actual service in time of War or public danger; nor shall nay person be subject
for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for public use, without just
compensation.
14th Amendment - States
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside. No state shall make or enforce any
law which shall abridge the privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws.
Test for due process:
mmmmmmclxxxviii. Has the government action impaired a liberty or property interest?
If not, procedural due process is not an issue.
mmmmmmclxxxix. What procedural requirements must be satisfied?
The two principal tools are notice and hearing. However, they can range from a
full, adversarial prior hearing, to a promise of a prompt post-deprivation evidentiary
hearing, to a notification of charges and an opportunity to respond. The requirements
are determined by weighing: The importance of the property or liberty interest in
question and the risk an erroneous deprecation in a particular procedure would create
(considering the probable value of any additional safeguards) vs. the importance to the
government of the function in question, and the administrative and fiscal expense of a
particular safeguard. Matthews
Defining the Interests Protected by Due Process
A persons mere expectation of maintaining benefits (or a job) isnt sufficient to create a property right;
the person must have a legitimate claim of entitlement to continued benefits, and this in turn
requires a government created expectancy, pursuant to applicable law.

ZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZ
Property
Government benefits may or may not constitute property rights. Generally, if one is just
applying for benefits, one does not have a property interest in those benefits. But if a person has
already been getting the benefits, usually hes got a property interest in continuing to get them,
so the government cannot terminate those benefits without giving him procedural due process.
The same analysis apples to government jobs: if youre just applying for the job, you dont have
a property interest in it, but if you already have the job, then you may have a property interests,
which entitles you to fair procedures before the job can be taken away.

AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
Liberty
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Government actions that alter someones legal status under positive law implicate a liberty
interests, but some government actions that may not do so are nonetheless such massive
invasions of liberty that due process attaches.
Liberty has been assumed to include just about every interest with significance to an individual
if the interest involved is not deemed fundamental, only a very small state justification is
necessary to support its impairment.
Examples of liberty include:
- Right to drive
- Right to receive a license to practice a profession
- Right to raise a family, due to charges of child abuse and neglect
3 phases of what constitutes liberty and property:
1. Before 1970
The court traditionally took the view that benefits flowing from the public sector, including
government employment and monetary benefits (ex. welfare) were a privilege and not a right,
so not protected under the due process clause.
2. 1970 1972 Governmental Benefits as entitlements: Either liberty or property. Any
governmental benefit that was essential to a persons livelihood or simply an important interest
was a form of liberty or property to which due process attached. The importance of the interest
was determined as a matter of federal law, not state law.
Goldberg v. Kelly (1970)
The court held that a welfare recipient must be given an evidentiary hearing before his benefits may be
terminated. Welfare payments, for a person statutorily entitled to receive them, were not mere
charity, but were a right protected by the constitution against arbitrary withdrawal. A pertinent
factor is that welfare recipients are dependant on each check, and the value is calculated per
case. The Goldberg principle was quickly extended to apply to claims made by government
employees, licensees, students, prisoners, and debtors, to name a few.
* Note: See Matthews for balancing test
As the relationship with the government evolved and there was much employment tied to the
government, this attitude changed and society moved from viewing government relationships as
a privilege to an entitlement that could only be revoked by due process procedures.
Board of Regents v. Roth 1972 p. 235 h.b.
Non-tenured employment at state univ.
Facts: P was given a non-tenured one-year contract to teach at Wisconsin State University. The
University declined, without giving reasons, to hire him after the one-year period. Under WI
law, decisions to rehire are left totally to the discretion of the University officials.
Issue Does the plaintiff have a liberty or property interest in his non-tenured one-year contract?
Held No
The importance of the interest was irrelevant, but it was the nature that was important. The
court said that the Ps interest was not one in liberty, because the states decision not rehire the P
did not include charges which might damage his reputation, nor was he barred from a broader
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class of employment. Had this occurred, liberty would have been affected and should have due
process.
P had a unilateral expectation of a property interest. P did not have a property interest because he did
not have a legitimate claim of entitlement to it. Whether the P had a legitimate claim of
entitlement to the benefit was to be determined by reference to state law. Since it was
discretionary, he had no entitlement.
Dissent Marshall every citizen who applies for a government job is entitled to it unless the
government can establish some reason for denying the employment and that this was an
entitlement that deserved due process.
Perry v. Sindermann 1972 Non-tenure employment found to be liberty/property
Facts The P was untenured professor at university. However, he taught for ten years, and alleged that
the college where he worked had a de facto tenure program, and that the college
administration had created an understanding that he had tenure under that program.
Issue Does the plaintiff have a liberty or property interest in his non-tenured employment?
Held Yes
There was a mutually explicit understanding between the P and the state supporting a claim of
entitlement. Entitlement created by rules and understanding.
Note The breadth of public benefit denied is likely to be considered by the Court, especially in public
employment cases For instance, a governmental decision not to hire or rehire a person for one
particular government job is much less likely to be held to be violative of a liberty or property
interest than is a decision that the individual may not hold any government job.
* Perry shows that informal practices or customs may be sufficient to create a legitimate claim of
entitlement to a benefit (a proprietary interests).
3. Post 1972 Modern Approach
The expansionary approach in early 1970 posed a real risk: more and more transactions by state
and federal governments might be deemed to impair liberty or property interests, until the entire
day-to-day activities of those governments were rendered completely subject to constitutional
review (and until the judicial system was drowned by due process claims). Consequently, after
the early 1970s the Burger court began to curtail the types of public benefits, which would be
deemed to create an interest in liberty or property.
Property interests are created by rules and understanding.
* Key question to ask: Is the benefit in question significant to the recipient?
Today, the issue of whether an interest is a "liberty" or "property" interest to which due process is due is
largely an issue of state law. The "importance" of the interest to the claimant is no longer the
talisman for deciding whether due process attaches. Instead, the "sufficiency of the claim of
entitlement [to a protected liberty or property interest] must be decided by reference to state
law." Bishop v. Wood, 426 U.S. 341 (1976).
Arnett v. Kennedy 1974 - Procedures detailed in giving property right constitute what should be
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followed as due process. If employee can only be removed for cause:

termination hearing.

Notice + post-

Determining the Process that is Due

To determine the amount of due process due to a P once a liberty or property right has been identified,
the Court has applied a balancing test.
3 prong test as to statutory benefits cases set forth in Matthews::
i.
The private interest that will be affected by official action
ii.
The risk of an erroneous deprivation of such interest through the procedures used and the
probable value, if any, of additional or substitute procedural safeguards and
iii.
The governments interest, including the function involved and the fiscal and administrative
burdens that the additional or substitute procedural requirement would entail.
Matthews v. Eldridge(1976)
Facts P was receiving social security benefits for a disability and the benefits were revoked after the P
filled out a questionnaire, which made him ineligible from his answers. He was informed by
letter and allowed to give a written response. He did so, and a final determination was made
that his benefits were to be ceased. P claimed he had a property right and this violated his due
process right.
Issue Was the Ps right to due process violated in the termination of his benefits?
Held No. The essence of due process is the requirement that a person in jeopardy of serious
loss [be given] notice of the case against him and opportunity to meet it.
In holding that disability benefits could be terminated without a prior evidentiary hearing (a
sharp contrast with the holding of Goldberg, the court used the balancing test as set forth above.
8308. Unlike welfare payments at issue in Goldberg, the disability payments were less likely to be the
individuals sole source of income, so his stake was lower than in Goldberg.
8309. The value of an evidentiary hearing was less than in Goldberg, because the disability issued
turned upon a medical assessment of the workers physical or mental condition, which
assessment could probably be evaluated through written documents rather than oral testimony
The burden of supplying a full administrative hearing was likely to be substantial, and the cost of it
may in the end come out of the pockets of the deserving since resources available for any
particular program of social welfare are not unlimited
Cleveland Board of Education v. Loudermill 1984
Facts P was under state law, a classified civil servant, who could only be terminated for cause. The
statute setting out this tenure provided for administrative review following discharge but did not
allow for any kind of hearing before termination. P had lied on his application that he had never
been convicted of a felony and he had been convicted of grand larceny. They dismissed him
and the D did not give him an opportunity to avenge his dismissal. P sued in federal court
claiming lack of due process.
Issue Must a state provide pretermination notice and opportunity to be heard for a public employee
who may be discharged only for cause?
Held Yes
P possessed a property interest in his employment because he could only be dismissed for cause,
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so he had a property interest in his continued employment. The statute created a property right
in Ps employment, but the statute cannot violate the constitutional right to due process by
entailing own procedures. Here, the statute violated due process because of procedural
requirements.
The court used the Matthews balancing test to determine the type of procedure to be followed to ensure
the P receives due process. The court weighed a tenured employees interest in retaining his
employment against the governments interest in having a quick way to fire unsatisfactory
employees; the Court also factored the risk of erroneous termination. The court concluded that
although some kind of hearing was required prior to the discharge of the plaintiff, that hearing
was required only to include only oral or written notice of the charges against him, an
explanation of the employers evidence, and an opportunity to present his side of the story. It
did not include the right to a full evidentiary hearing of the sort imposed in the welfare benefits
context in Goldberg.
Rule 1. Property rights may be created by statute
2. Statute cannot have procedural process, which denies P constitutionally granted due process.
Common areas of procedural due process:
1. Welfare benefit termination
Notice + prior evidentiary hearing + promise of post-termination quasi-judicial hearing
(Goldberg v. Kelly)
2. Disability benefit termination
Notice + promise of post-termination evidentiary hearing. (Matthews v. Eldrige)
3. Public employment termination
If for exercising constitutional right (speech e.g): prior hearing Perry v Sindermann
If not, it depends on whether the employee can only be terminated for cause. If employee
can only be removed for cause: Notice + post-termination hearing. Arnett v. Kennedy
If employee neednt be removed for cause (at will employee): no property right so not
procedural due process problem.
4. Public school suspension for disciplinary reasons
If students presence in school is dangerous or disruptive: Removal immediately followed by
notice of charges + opportunity to explain. If it is not dangerous or disruptive, and suspension is
for a substantial length of time: notice + explanation of charges + opportunity to explain must
all precede removal. Goss v. Lopez. If not dangerous or disruptive and suspension is brief (twothree days): ex parte review by school official suffices. Bethal School District v. Fraser
5. Public school suspension for academic reasons
Prior notice + opportunity to respond (no hearing is required) Board of Curators v. Horowitz
6. Pre-judgment garnishment of wages by creditors
Notice + prior hearing Sniadach v. Family
7. Pre-judgment seizure of property by creditors
No prior notice or hearing so long as: creditor applies to judge for prejudgment seizure,
application includes affidavit based on personal knowledge of specific facts justifying seizure,
creditor posts sufficient surety bond, provision made for prompt pot-seizure hearing, where
creditor must prove probable cause for seizure. Mitchell v. W.T. Grant
8. Drivers license suspension
If probable cause to believe conditions of license have been violated: Prompt post-suspension
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hearing.
9. Involuntary commitment to mental institution adult
Adult: Clear and convincing evidence of need to commit. Addington v. Texas
Child: Pre-commitment inquiry, but not prior adversary hearing if inquiry is sufficient. Parham
v. J.R.
10. Termination of parental status
Prior hearing where parental unfitness must be proven by clear and convincing evidence
Santosky v. Kramer

Substantive Due Process (tested as Essay open book)

One function of the Due Process Clause is to limit the substantive power of the states to regulate certain
areas of human life. That is, certain types of state limits on human conduct are held to so
unreasonably interfere with important human rights that they amount to an unconstitutional
denial of liberty. Thus, there are some rights that are so fundamental that they are substantively
protected under the Due Process Clause.
There are some rights so fundamental that cannot be deprived due process:
Tender cases making people use paper money
Wynehamer v. People statute came out that liquor was illegal to drink or own, even
applied to previously owned liquor. The court said that this statute was a violation of due
process and an arbitrary exercise of state power.
A number of cases hold that an act of the state legislatures so arbitrary that due process
right is violated.
The Incorporation Doctrine
Evolution of Court: From No Incorporation to Selective Incorporation to Total Incorporation
1.
Selective incorporation
This approach denies that the entire Bill of Rights is made applicable to the states via the 14 th
Amendment. Instead, the term liberty as used in that amendment is to be interpreted by judges
without regard to the Bill of Rights. Only those aspects of liberty that are in some sense
fundamental are protected by the 14th amendment against state interference.
The argument for selective incorporation is that it is an argument for substantive due process that there
are rights that are so essential that they would constitute a violation of due process to deny these
rights.
Test: Palko Cardozo: The test is being whether the Bill of Rights guarantee in question is of the very
essence of a scheme of ordered liberty and whether it is one of those fundamental principles of
liberty and justice which lie at the base of all our civil and political institutions.
With the enactment of the 14th amendment, bill of right guarantees are applied to the state. But, not all
of the amendments apply to the states:
i.
Second Amendment: States can have gun control statutes
ii.
Third Amendment: States can have quartering of solders
iii.
Fifth Amendment: States can formulate charges against a defendant through other
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iv.
2.

procedures
Seventh Amendment: Jury trial requirement doesnt apply to states

Total incorporation
All of the guarantees specified in the Bill of Rights are made applicable to the states by the 14 th
Amendments Due Process Clause.

Barron v. Baltimore
Facts Barron sued the Mayor and the city for permitting street construction that had the effect of
depositing silt in front of his wharf, making it inaccessible.
Issue Does the bill of rights accord citizens of the United States protection from state actions?
Held No
1. The Bill of Rights had been intended by the framers to restrain federal power alone.
2. When the Constitution restrains state power it does so expressly.
The court said that the bill of rights and the takings clause do not apply to the states and only
restrains the federal government.
Had the framers of the Bill or Rights intended them to be limitations on the powers of the state
governments, they would have . . .. expressed that intention. .. in plain and intelligible
language. (If the constriction wanted to include states, they would have).
14th Amendment
Later, the enactment of the 14th Amendment reversed this case, adding 3 major
limits on state powers:
11916. No state may abridge the privileges or immunities of citizens of the United States
11917. Deprive any person of life, liberty, or property without due process of law
11918. Deny to any person within its jurisdiction the equal protection of the laws
Slaughter-House Cases 1873
Facts LA granted a state corporation the exclusive right to operate facilities in New Orleans for the
landing, keeping, and slaughter of livestock. The P sought an injunction against the monopoly
on the grounds that they were prevented from practicing their trade unless they worked at the
monopolist corporation and paid its fees. The P claimed that it (i) abridges the privileges and
immunities of citizens of the U.S. (ii) that it denies equal protection and (iii) deprives them of
their property without due process of law
Issue Do the civil war amendments grant the U.S. citizens broad protection against the actions of the
state governments?
Held No
Although one of the dissenters argued that a state prohibiting a large group of citizens from
pursuing a lawful employment deprived them of both liberty and property without due process
of law. It does not violate the due process clause b/c the due process clause only protects
against procedural unfairness.
1. Equal protection was to prevent discrimination against blacks
2. Court said that a job is not property, no due process.
3. Constitution does not control power of states.
Rule Selective incorporation fundamental rights the 14th amendment privileges and immunities
clause doesnt incorporate the bill of rights separately.
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The privileges and immunities clause of the 14th amendment bars a state from abridging
privileges or immunities incident to national citizenship, not state citizenship.
Palko v. Connecticut (1937)
The right at issue was the ban on double jeopardy, which was found not to be sufficiently fundamental
as to apply to states.
Twinings v. N.J.
The court held that inference from failure to testify is not a violation of due process. (Later overruled
and incorporated to apply to states)
Adamson v. CA (1947)
Dissent argued that since the prosecution would not be permitted to comment on the accuseds failure to
take the stand in a federal criminal trial, thus, Justice Black contended that the procedural
guarantees applied to the federal government by the Fifth Amendment were automatically
rendered applicable to the states via the fourteenth amendment.
Duncan v. LA (1968)
The Court held that the Fourteenth amendment guaranteed the right to a jury trial in state criminal
prosecutions for which the potential sentence was two years in jail. This indicated a move to
selective incorporation from no incorporation. The court asked if this is a right that would be
hard to imagine a civilized society without this right. Is the right in question essential to a free
society? The court proceeded to apply a jot-for-jot principal.
The Rise and Fall of Economic Rights as Substance of Due Process
A.
Substantive Due Process - Before 1934 - Lochner and Freedom of Contract
The following cases show the Supreme Court using due process as a substantive limit on legislation
interfering with vested property rights.
Scott v. Sanford (1857) The Dred Scott Decision
Involved the restrictions of a state to deprive a person of use and enjoyment of property rights. The
rights of a slave owner were called into question. Dred Scott had been taken by his owner into a
free state. Do these laws apply?
An act of Congress, which deprives a citizen of the United States of his liberty of property, merely
because he came himself or brought his property into a particular Territory of the United States,
and who had committed no offence against the laws, could hardly be dignified with the name of
due process of law.
If the US legislature adopted a statute depriving an individual of his property, it is deprivation of Due
Process of the Fifth Amendment. So, the court held that depriving a slave owner of his property
rights is a deprivation of due process.

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Hepburn v. Griswold (1870)

The court declared that congress could not make paper money legal tender. The court reasoned that
contracts were property; a requirement that creditors accept paper money instead of coin
deprived them of property. (later overruled by the legal tender cases)
Wynehamer v. People (1856)
The NY court of appeals relied on the NY constitutions due process clause to invalidate a liquor
prohibition statute that made it a crime to possess liquor owned prior to the laws enactment.
Since the law annihilates the value of property, the owner of property is deprived of it
[within] the spirit of a constitutional provision intended expressly to shield private rights from
the exercise of arbitrary power.
Then, the courts began to hint that the police powers of the state governments might be bounded in due
process.
Munn v. Illinois (1877)Court using due process to regulate private contracts
The court upheld against a due process challenge Illinois regulation of grain storage rates, concluding
that governments could regulate private property when it is affected with a public interest or
used in a manner to make it of public concern, and affects the community at large. The Court
intimated that such regulations might be unreasonable and void when applied to mere private
contracts, relating to matters in which the public has no interest.
Mugler v. Kansas (1887)
The legislation of states valid only if they do not violate rights secured by the fundamental law
The Court upheld a Kansas law prohibiting alcoholic beverages against a challenge brought by a brewer
who contended that the law deprived him of his property without due process. In dicta, the
Court observed that laws having no real or substantial relation to a states legitimate police
powers, or which are palpable invasion[s] of rights secured by the fundamental law will be
struck down.
The era of striking down economic regulations as violative of substantive due process began with
Allgeyer in 1987 and died in the New Deal revolution. This period is often called the Lochner
Era. The court occasionally struck down laws impinging on the individual liberty of contract
broadly described in Allgeyer. The period from about 1900 to 1937 was characterized by
widespread invalidation of economic legislation on substantive due process grounds.
Allgeyer v. LA (1897) Court using substantive due process review to invalidate a state statute
The Court held that a LA statute that required insurance contracts to be made with an insurer to do
business in LA, violated liberty aspect of insured under Due Process. This was not analyzed
under the dormant commerce clause because the commerce clause is only involved if you have
commerce (insurance is not commerce). Justice Peckham said that the term liberty in the due
process clause embraces the right of the citizen to be free in the enjoyment of all his faculties;
to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood
by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into
all contracts which may be proper, necessary and essential to his carrying out to a successful
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conclusion the purposes above mentioned. * note that the court in Munn and Mugler stated that
it is okay if coupled with a public interest.
Lochner v. New York (1905)
The 40 years after Allgeyer saw an enormous SC trend towards striking down state legislation on due
process and similar constitutional grounds. Between 1899 and 1937, 159 SC decisions held
state statutes unconstitutional under the due process and equal protection grounds. Lochner
broadened the scope of economic due process.
Facts D was convicted of permitting an employee to work for him more than 60 hours a week (baker).
D appealed saying that the law violated his freedom to contract under the 14th Amendment Due
Process Clause
Issue May a state generally prohibit private agreements to work more than a specified number of
hours?
Held No
The general right to contract in business is clearly part of the individual liberty protected by the
fourteenth amendment. However, the right to hold both property and liberty are subject to such
reasonable conditions as may be imposed by a government pursuant to its police powers.
The state defended the statute on two grounds:
12948. It was a valid labor law
12949. That it protected the health and safety of the workers
The court rejected saying:
13464. Police power only extends to public welfare, this is not public welfare
13465. The bargaining between bakers and employees is not of public concern
13466. The court did not find bakers to be an endangered group and working long hours did not affect
public health and safety
A key point is that the court refused to defer to legislative findings of fact. This is illustrated by the
court stating in our judgment it is not possible in fact to discover the connection between the
number of hours a baker may work in the bakery and the healthful quality of the bread made by
the workman
Test:
13980. It required a very close fit between the statute and its objectives. There had to be a real
and substantial relationship between the statute and the goals, which it was to serve.
13981. Only certain legislative objectives were acceptable. Regulation of health and safety was
permissible, but readjustment of economic power or economic resources was not.
Holmes dissent: Liberty, as the term is used in the 14 th amendment, should be formed to be violated
only when a rational and fair man necessarily would admit that the statute . . . would infringe
fundamental principles as they had been understood by the traditions of our people and our
law, thus the statute should be valid.
The fourteenth amendment does not enact Mr. Herbert Spencers Social statistics. Federal and state
statutes and decisions cutting down the liberty to contract by way of combination [in restraint of
trade] are familiar to this court.
Harlans dissent: There was enough evidence that the statute would promote the health and safety of
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bakers that the legislatures judgment on this issue should have been accepted.
Muller v. Oregon
The court sustained a law barring the employment of women in a factory or laundry for more than ten
hours a day; the decision viewed women as members of a weaker class disadvantaged in the
struggle for subsistence and therefore needing special protection.
* Note: Stand out case
Adkins v. Childrens Hospital (1923)
The Supreme Court struck down a minimum wage law for women. The court did this even though it
had previously accepted maximum-hour laws for women. This rationale was freedom of
Contract.
* One explanation for the apparent inconsistency between the two cases above is that maximum hour
rules could be seen as promoting a legitimate health objective, whereas it was hard to see
minimum wage rules as promoting anything other than a lessening of economic inequality.
Lochner: 1934 to present
Lochner, and the judicial philosophy behind it (courts opinion over legislature) were subjected to
intense criticism in the three decades, which followed that case. In addition to this criticism, the
election of Franklin Roosevelt, and his new deal programs, convinced many people of the need
for aggressive legislative programs to ensure the nations economic survival. Such large-scale
government intervention in economic affairs was clearly at odds with the Lochner freedom of
contract philosophy.
New Rule: Where a state statute regulates a purely economic matter, and does not involve any
fundamental right, all that is required is that the means chosen be rationally related to a
legitimate governmental objective.
Nebbia v. New York (1934)
The court sustained a New York regulatory scheme for fixing milk prices. The court did not explicitly
reject the Lochner philosophy. However, the majority noted that due process required only
that the law shall not be unreasonable, arbitrary or capricious, and that the means
selected shall have a real and substantial relation to the object sought to be obtained. A
state was free to adopt whatever economic policy may reasonably be deemed to promote
public welfare, and to enforce that policy by legislation adapted to its purpose. Test of means
establishing the ends, as seen in Lochner, but the court did not impose its own views upon the
legislature.
West Coast Hotel Co. v. Parrish (1937) overruled Adkins
The court overruled one of the major Lochner precedents. The court upheld a state minimum wage law
for women, overruling Adkins. The court mentioned the states interest in protecting the health
of women. But it gave substantial weight to the states interest in redressing womens inferior
bargaining power as well. The court conceded that the minimum wage law interfered with
freedom of contract, but the decision concluded that a readjustment of economic bargaining
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power in order to enable workers to obtain a living wage was a legitimate limitation on that
freedom to contract. The law was not arbitrary or capricious and furthered a legitimate
public purpose of worker health and created a burden for their support upon the
community.
U.S. v. Carolene Products (1938) - extreme deference
A presumption of constitutionality would be applied in the case of an economic regulation subject to a
due process attack. The court sustained against a due process attack a federal prohibition on the
interstate shipment of filed milk. The existence of facts supporting the legislative judgment is
to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be
pronounced unconstitutional unless . . . 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.
The court used the rational basis test if there is a rational basis for the states determination, the
legislation is valid.
Scrutiny
Strict
Intermediate
Minimal

Objective Purpose
Compelling Gov. Interest
Important Gov. Interest
Legitimate Gov. Interest

Means
Narrowly Tailored
Substantially Related
Rationally Related

Note
Suspect Classification or Fundamental Rights

Ex: Gender Illegitimacy

Default

Rational Basis Test

14496. Used when the statute on its face is not conflicting with the 14th amendment
14497. Legislation is presumptively valid.
14498. Unless there is some reason to doubt that presumption the challenger has the burden of proving
that the law, regulation, or executive act is not rationally related to a legitimate government
objective.
14499. So long as the governments reason for acting is legitimate within the granted powers of the
government in question and not violative of some constitutional restraint on the exercise of
those powers almost any means of achieving it will be accepted as rationally related to the
objective.
Strict Scrutiny Test
15012. Used when the statute is conflicting with the 14th amendment on its face
15013. Legislation is presumptively invalid.
15014. Deals with a fundamental right.
15015. The defender of the government action ahs the burden of proving that the law or executive act is
necessary to accomplish a compelling government objective.
15016. Example: $2 admission for whites, $3 for blacks
15017. Footnote 4:
There may be narrower scope for operation of the presumption of constitutionality when legislation
appeals on its face to be within a specific prohibition of the Constitution. [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 [that] are most other types of legislation. [Nor] need we enquire whether
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similar considerations enter into the review of statutes direct at particular religious, or national,
or racial minorities; 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 scrutiny.
Even when something comes against fundamental right, may get the benefit of the rational basis test.
Intermediate Scrutiny Test
15524. Between the two extremes lies an intermediate level of review, which is triggered when the
government action comes with some taint of presumptive invalidity but not quite enough to
invoke strict scrutiny.
15525. Involves quasi-suspect classes such as sex.
15526. The defender of the government action has the burden of proving that the actual purpose of the
statute or action is important and that the statute or action is substantially related to the
accomplishment of that actual purpose.
Substantive Due Process and the Right to Privacy
There are two standards of review:
16040. Rational Basis
The court must find a rational relation between the statute and a legitimate state objective.
This test is used when a non-fundamental right is involved. The Courts deference to the
legislative judgment is so extreme that there is virtually no scrutiny at all.
16041. Strict Scrutiny
Used when the Court finds that a statute impairs a fundamental right, the court applies this
test:
mmmmmmmmmmmmmmmmdcviii.
The states objective must be compelling, not
merely legitimate and
mmmmmmmmmmmmmmmmdcix.
The relation between that objective and the means
(the means-end fit) must be very close, so that the means can be said to be
necessary to achieve the end.
The rights, which have been found to be fundamental, include:
i.
Sex (see cases)
ii.
Marriage
iii.
Child-bearing
iv.
Child-rearing
v.
Freedom of association of speech, assembly, the press, or religion
vi.
Freedom of family dwelling
Generally, the court has treated most of the interests it has found to be fundamental as falling within the
broad category of the right to privacy. A more descriptive term may be personal autonomy
Early Cases of applying substantive due process to non-economic rights
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Meyer v. Nebraska (1923)

The Court struck down a state law, which prohibited the teaching of foreign languages to young
children. The Court held that the term liberty as used in the 14th Amendment included many noneconomic, but nonetheless important rights: the right of teachers to teach and that of students to
acquire knowledge were among these. The court appears to have applied the mere rationality test and
concluded that the statute was without reasonable relation to any end within the competency of the
state.
* This echoes the dissent in the Slaughterhouse Cases
Pierce v. Society of Sisters (1925)
The Court struck down a state statute requiring children to attend public schools, thus preventing them
from attending private and parochial ones. This decision rested on the liberty of parents and guardians
to direct the upbringing and education of children under their control.
Griswald v. Connecticut (1965) Origins: Contraceptive Use
Recognized marital interest in sex without procreation
Facts D and an associate were convicted as accessories to the crime of using contraceptives in
violation of a Connecticut statute prohibiting all such use. They were convicted of counseling
married persons in the use of contraceptives. No users, married or single were charged in the
case. The conviction was upheld in all the state courts. While the manufacture is open public,
the use takes place in private.
Issue Does a constitutional right of privacy exist that prohibits states from making use of
contraceptives by a married couple a crime?
Held Yes
(Douglas)
The specific guarantees in the Bill of Rights have penumbras, or peripheral rights, that make the
specific rights more secure. A right of privacy has been noted in earlier cases, and ought to
especially protect marriage relationship. (see Meyer and Pierce which did not involve specifics
from text, but involved penumbra).
Examples of penumbra given by the court:
First Amendment, by its explicit protection of the freedoms of speech and of the press,
has emanations, which create a penumbra; it is this penumbra, which protects the
freedom of association, a freedom not explicitly mentioned in the Constitution.
Similarly, the Court found the Fourth Amendments ban on unreasonable searches has a
penumbra, which protects privacy interests, as do the fifth (zone of privacy, no self
incrimination), third (no quartering in war unless consent), and ninth (uses the text that
these are other rights that exist other than those expressed) amendments. Collectively,
these amendments establish a zone in which privacy is protected from governmental
intrusion.
Justice Harlans concurrence: Lecher was a bad decision because it had no textual basis, rather holds
that the right to substantive due process exists as a matter of right of free people. Relied on his
dissent in Poe v. Ullman addressing the same statute where he contended that the same
Connecticut statute violated the due process interest in martial privacy.
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This concurrence stopped carefully short of finding a general right of privacy for sexual relations. He
explicitly rejected the idea that adultery, homosexuality, fornication and incest were protected
by the same right to privacy. He distinguished these from the martial relations situation by
noting that the state allows the martial relation, and should therefore not be permitted to sue the
criminal law to regulate the intimate details of that relation.
Dissent: Stewart and Black:
No general right of privacy is enumerated in the constitution, so this court is going down the
Lochner road where the court held that there was a general right of privacy existing for free
people.
Significance
Addresses importance of fundamentality not in text.
Recognized right for married couples to use contraceptive
* Note: Poe v. Ullman addressed the same statute and the court said that the plaintiff has not suffered
an imminent injury (did not have standing) because nothing had happened yet.
2 views:
17064. Griswold recognized a fundamental liberty interest in marital sex against government
invasion from procreation but said nonmaritial sex could be prohibited. (narrow view)
17065. Griswold recognized a fundamental liberty interest of marital sexual partners to engage in
sex without sexual partners to engage in sex without significant risk of procreation. (broad)
* Problem is identifying the fundamental interest getting protected. Under the broad view, see that
Eisenstadt applies to unmarried as well, and Roe applies to married and non-married abortions.
Under the narrow view, Eisenstadt, contraception is not rationally related to nonmaritial sex and
that Roe is a big extension from this narrow view.
Eisenenstadt v. Baird (1972) Recognized right of married or single to use contraceptives
The Court invalidated a statute, which, by permitting contraceptives to be distributed only by
registered physicians and pharmacists and only to married persons, discriminated against the
unmarried. The majority invoked equal protection as well as substantive due process grounds.
The Court observed that whatever the rights of the individual to access to contraceptives may
be, the rights must be the same for the unmarried and the married alike...If the right to privacy
means anything, it is the right of the individual, married or single, to be free from unwarranted
government intrusion into matters so fundamentally affecting a person as the decision whether
to bear or beget a child

Abortion
The right of privacy, which the Court found to exist in Griswold, has been extended to the abortion
context. The case recognizing the right to privacy limits a legislatures freedom to proscribe or regulate
abortion was the landmark case of Roe v. Wade, which has been interpreted in a long series of decisions
and curtailed by Planned Parenthood v. Casey.

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Roe v. Wade 1973 Recognized the right of a woman to control her own body big extension of
Eisenstadt
Facts Roe, unmarried and pregnant, sought declaratory and injunctive relief against Wade to prevent
the enforcement of Texas criminal abortion statutes.
Issue May a state constitutionally make it a crime to procure an abortion except to save the mothers
life?
Held No
The right to privacy generally relates to marriage, procreation and contraception and to abortion
when the state has a compelling interest, may a state regulate.
Because the of the issue of mootness, the court decided the case on capable of repetition yet evading
review.
The state had the following interests:
- To discourage illicit sex
- Abortion as a medical procedure has risks
- Protects prenatal life
The court is supporting its conclusion discussed the Pierce, Meyer and Griswald holdings which
recognize the right to privacy as a fundamental right
The court weighed the right of privacy against the states interests and used a compelling interest test
18092. First Trimester:
During the first trimester, the state may not ban, or even closely regulate abortions. The
decision to have an abortion and the manner in which it is to be carried out, are to be left to the
pregnant woman and her physician.
* Rationale is that the state does not have a compelling interest in protecting the mothers health
by regulating abortions because the mortality rate for mothers having abortions during the first
trimester is lower than the rate for full-term pregnancies.
18093. Second Trimester
During the second trimester, the state may protect its interest in the mothers health, by
regulating the abortion procedure in ways that are reasonably related to her health. * Note
that the state may protect the mothers life during this time, but not the fetus.
18094. Third Trimester
At the beginning of the third trimester, the Court stated that the fetus typically becomes viable
and thus, the state has a compelling interest in protecting the fetus. Therefore, after viability, the
state has a compelling interest in protecting the fetus, and may therefore, regulate or even
proscribe abortion. Abortion must be permitted where it is necessary to preserve the life or
health of the mother.
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Dissent: This is the Lochner view of due process which is judicial legislation rather than
determination of the intent of the drafters of the 14 th Amendment. Because the court used a
compelling state interest test rather than the tradition test of whether the law has a rational
relation to a valid state objective.
Webster v. Reproductive Health Services 1989
The Court held that a state may prohibit all use of public facilities and publicly employed staff in
abortions. The statess refusal to allow public employees or public hospitals to participate in abortions
leaves a pregnant woman with the same choices as if the State had chosen not to operate any pubic
hospitals at all.
Planned Parenthood of Southeastern PA v. Casey 1992 - Affirmed Roe in recognizing the right of a
woman to use her own body, but allowed state intervention
Facts The plaintiff challenged a PA law requiring:
18608.
Woman must wait 24 hours after given info about abortion
18609.
The woman must give informed consent prior to abortion
18610.
If a minor, the woman must obtain informed consent of her parents unless a judicial
bypass option is followed
18611.
If married, she must certify she informed her husband
18612.
Facilities providing abortion services must make certain reports about each abortion
Planned Parenthood challenged these that they violated a womans right to an abortion and they
violate strict scrutiny. The state argued that these provisions were valid and should survive
strict scrutiny.
Issue May a state impose consent and notification requirements as prerequisites for obtaining an
abortion?
Held Yes for consent requirements, No for notification requirements
Parts of Roe reaffirmed:
19124. The womans right to have an abortion before viability without undue state influence
19125. The states power to restrict abortions after fetal viability so long as there are exceptions
to protect a womans life or health
19126. The states legitimate interests from the outset of the pregnancy of protecting the health
of the woman and the life of the unborn child.
Parts of Roe overruled:
19640.
The trimester approach of Roe is overruled and replaced with a line drawn at
viability. Under this approach, a law that serves a valid purpose not designed to strike at the
right of abortion itself may be sustained even if it makes it more difficult or more expensive to
obtain an abortion unless the law imposes an undue burden on a womans ability to make an
abortion decision.
19641.
The states inability to regulate first trimester abortions was overruled.
19642.
Roes decision that an abortion is a fundamental right is overruled.
The court held that the consent requirements do not put an undue burden on the womans right
to choose, nor does the 24-hour waiting period.
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The court held that the spousal notification requirement does impose an undue burden on a
womans choice to undergo an abortion and cannot be sustained.
Dissent
Rehnquist, White, Scalia, and Thomas
Roe was wrongly decided. The Courts undue burden standard is unjustified constitutional
compromise that allows the court to closely scrutinize all types of abortion regulations despite
the lack of any constitutional authority to do so. The court should have used the rational basis
rather than the undue burden because this is more like a rational basis. Abortion is not a
fundamental right because it is not protected by the constitution.
Rule States may restrict abortions so long as they do not place undue burdens on a womans right to
choose.
This case certainly seems to ensure that as long as the present composition of the court does not change,
that a womans right to decide whether to terminate her pregnancy will be an interest that receives
special constitutional right protection.
Consensual Sexual Choices
Bowers v. Hardwick 1986
Facts Plaintiff was charged with committing sodomy with another adult male in plaintiffs bedroom in
violation of a state law forbidding sodomy by any person.
Issue Does a person have a fundamental constitutional right to engage in consensual homosexual
sodomy?
Held No
Prior cases have recognized a right of privacy in matters of child rearing and education, family
relationships, procreation, contraception, and abortion. None of these rights bears any
resemblance to the right P claims to engage in homosexual sodomy. The precedent does not
recognize a constitutional right to engage in any kind of private sexual conduct between
consenting adults.
The plaintiff cited Griswold, Eisenstadt, and Roe, saying that the statute violated the fundamental rights
of the respondent.
20668.
Griswold applied to married couples, keep government out of it
20669.
Eisenstadt involved contraceptives to coeds of the campus, the unmarried has a right
against government intrusion
20670.
Roe married and unmarried right to an abortion
20671.
Casey unmarried right to contraception
*The court of appeals took the broad view of these cases and held that sodemy was a
fundamental right.
The Supreme Court disagreed and took the narrow view. They held that the precedents do not
recognize a constitutional right to engage in any kind of private sexual conduct between
consenting adults, as opposed to the minority who recognized a broad right from the precedents.
The court held that the rights that qualify for heightened judicial protection are those
fundamental liberties implicit in the concept of ordered liberty, such that neither liberty nor
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justice would exist without them, and those that are deeply rooted in the countrys history and
tradition. A right to homosexual sodomy falls within neither category. Sodomy is a common
law offense that is still forbidden by 24 states, the court must be prudent in expanding the
substantive reach of the Due Process Clause.
The fact that an offense takes place in the home does not make it immune from criminal
sanction.
Dissent: The court failed to acknowledge the breath of the earlier decisions.
Hypo: What if a married couple challenged this?
The married couple would challenge this based on due process. If all of the procedures are followed,
the only way it can be a violation is of substantive due process and argue it was a fundamental liberty
through broad view of precedents. (could be an equal protection issue only if it is upheld against
homosexuals.)
Lawrence v. Texas 2003 (Supp. P. 48)
Facts Lawrence and his partner were convicted of deviate sexual intercourse with a member of the
same sex. The Texas Court of Appeals found Bowers v. Hardwick to be controlling and
affirmed the conviction.
Issue Whether a state statute prohibiting two persons of the same sex from encaging in intimate
sexual contact is a violation of equal protection and due process under the Fourteenth
Amendment.
Held Yes, it is a violation. The state cannot demean [the petitioners] existence or control their
destiny by making their private sexual conduct a crime. The SC started by looking at the
substantive reach of liberty by analyzing the case under Griswold and then pointed out the
erosion of the historical basis upon which Bowers was decided. The Court noted that the Texas
statute furthered no legitimate state interest to justify the private intrusion and the statute
therefore violated the Due Process clause. This overruled Bowers.
Dissent Justice Sandra Day O'Connor filed a concurring opinion, agreeing with the invalidation of the
sodomy law but not with Kennedy's rationale. O'Connor disagreed with both the overturning of
Bowers (she was in the Bowers majority) and with the court's invocation of due process
guarantees of liberty in this context. O'Connor instead preferred the more limited equal
protection argument which would still strike the law because it was directed against a group
rather than an act, but would avoid the inclusion of sexuality under protected liberty.
Justice Scalia wrote a sharply worded dissent, in which Chief Justice William H. Rehnquist and
Justice Clarence Thomas joined. Scalia objected to the Court's decision to revisit Bowers,
pointing out that there were many subsequent decisions from lower courts based on Bowers that,
with its overturning, may now be open to doubt. Scalia also claimed that "State laws against
bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication,
bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws
based on moral choices."
Scalia claimed that with this decision, the Court "has largely signed on to the so-called
homosexual agenda." While Scalia said that he has "nothing against homosexuals, or any other
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group, promoting their agenda through normal democratic means," Scalia argued that the Court
has an obligation to decide cases neutrally.
Justice Thomas, in a separate short opinion, wrote that the law which the Court struck down was
"uncommonly silly" but that he voted to uphold it as he could find "no general right of privacy"
or relevant liberty in the Constitution. He also added that if he were a member of the Texas
Legislature he would vote to repeal the law.
Family Relationships
Village of Belle Terre v. Boraas
The village had a zoning provision with respect to classification as a single family. A group of people
lived together and challenged the constitutionality of the statue. The SC did not find a fundamental
liberty interest in people sharing the same residence. Because there was no fundamental interest, they
used the rationally basis test and Ided public interests such as property value and minimizing traffic.
The court concluded that this was constitutional.
Moore v. City of East Cleveland 1977
Facts D lived with her son and two grandsons who were cousins. The city filed a criminal charge
against the D for her violation of the city ordinance restricting occupancy of a dwelling unit to
members of a single family, defined by certain categories, none of which included Ds
arrangement.
Issue May a local ordinance restrict occupation of dwelling units to certain specified categories of
related individuals?
Held No
The court found that when the government intrudes on choices of family living arrangements,
the legitimacy of the governmental interests and the effectiveness of the regulations must be
carefully examined. This statute cannot stand such scrutiny.
The Court found that family dwelling arrangements are fundamental interests by looking at
history. The court said that history recognizes the importance of an extended family living
together and he extended this right to an extended family, so that it is a fundamental liberty for
people to live together. The extended family has a strong tradition in our history, and the U.S.
Constitution prohibits P from forcing people to live in certain narrowly defined limits.
Dissent: Stewart, Rehnquist The constitutionally protected freedom of association relates to
promotion of speech, assembly, the press, or religion, not to an interest in the gratification,
convenience, and economy of sharing the same residence. Ds interest in sharing the dwelling
cannot be equated with the fundamental decisions to marry and to bear and raise children, as the
majority has done.
It is unclear at what the Court would do if someone unrelated lived there.
hypo: Suppose the D was a school teacher who had taken in an orphan child not related to her at all
is this a protected liberty under the 14th Amendment or is this only for relations by blood?

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Troxel v. Granville 2000

A birth parent has a fundamental due process interest in controlling the care and custody of their child.
A state court judge ordered the mother of two minor girls to give monthly visitation privileges to the
girls paternal grandparents. The judge did so under a state statute that allowed a court to order
visitation rights for any person when visitation may serve the best interest of the child. The Supreme
Court overturned this and found that the interest of parents in the care, custody, and control of their
children is perhaps the oldest of the fundamental liberty interests recognized by this court. Cited
Meyer, Pierce.
Quillion v. Walcott 1978
Court found that a birth father not living with his child and who had not formed a substantial
relationship with the child did not have a fundamental right to block the childs adoption.
GA law did not give birth fathers of a child born out of wedlock the right to block the childs adoption.
A birth father challenged the adoption of his child by the husband of the childs mother. The Supreme
Court rejected the challenge and found that the statute did not violate the Due Process clause. The
Court reasoned that the state had a legitimate interest in preserving existing family units; since the
plaintiff had never lived with the child, or sought custody of him, the statute as applied here preserved
existing families and was therefore arguably in the best interest of the child. Here, the child never lived
with the child and did not form a significant relationship. It is unclear whether a father who lived with
the child and has developed a significant relationship has a substantive due process right to maintain the
relationship. Importance is this case recognized the rights of natural families.
Stanley v. Illinios 11972
Recognized fundamental liberty interest in natural father not married to mother in the relationship with
his children if the father could establish an existing functional relationship with his children.
The constitutional liberty interests of families are not confined to families blessed by the marital
sacrament.
The Staleys lived together for 18 years, were never married, but had kids. The mother died and the
statute held that the children of a mother who dies unwed are wards of the state. The Court used strict
scrutiny and struck down the statute. At least where the natural father could establish an existing
functional relationship with his children, his interest in the companionship, care, custody, and
management of [his] children warranted heightened scrutiny.
The Right to Die
Cruzan v. Director 1990
Facts P was injured in a car accident and announced to be brain dead and was in a persistent
vegetative state. Ps parents asked that the medical procedures be terminated, which could
cause the Ps death. The hospital employees refused to do so without a court order, and Ps
parents sued on behalf of the P. The parents presented some evidence that this is what she
would want them to do.
Issue Does MI continuation of the life-sustaining procedures violate the Ps 14th Amendment rights?
Held No
The Court said that it must have clear and convincing evidence that the P wanted to end her life
should she be in a vegetative state. The Court said that a competent person can make this
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Rule

decision, but that the state of MS has a sufficient interest in preserving life and assuring that it is
the persons decision rather than the decision of loved ones. So, the clear and convincing
evidence standard protects the individuals interest in life.
But for purposes of this case, we assume that the U.S. Constitution would grant a
competent person a constitutionally protected right to refuse lifesaving hydration and
nutrition.
This case establishes two major propositions:
22720. A competent adult has a constitutionally-protected 14th amendment liberty interest
in declining unwanted medical procedures
22721. Where the patient is incompetent, the state may constitutionally refuse to allow
these medical procedures to be terminated except where there is a clear and convincing
evidence that this is what the patient would have wanted.

Where the patient is incompetent to express present wishes, the first question to ask is: has the patient
previously expressed clear wishes either: (a) that she does not want medical treatment under the
circumstances like those now existing; or (b) that she wishes some designated other person to make
such decisions for her in the event of incapacity? If the answer to this question is no, then we know
from Cruzan that the state may refuse to discontinue the procedures even though all concerned agree
that the best interest of the patient would be to discontinue the treatment.
WA v. Glucksberg 1997
Facts WA had a ban on promoting a suicide attempt The state defined this crime as knowingly
causing or aiding another person to attempt suicide and made it a felony. Plaintiffs brought a
declaratory judgment action protecting this statute.
Issue Is there a protected liberty interest in assisted suicide?
Held No
The Court looked at the history and tradition. Held that only rights or interests that were
deeply rooted in this Nations history and tradition could be fundamental. In view of the
nearly universal past and present prohibition of suicide or assisting suicide, that asserted interest
in committing suicide did not come close to meeting this deeply rooted test.
Rule There is no fundamental right to commit suicide.

Economic Rights: The Takings and Contracts Clause

The Takings Clause
5th Amendment: No private property should be taken for public use without just compensation
Eminent Domain: Nothing in the Constitution explicitly confers this eminent domain power upon
either the federal government or the state governments.
But the 5th amendment applies if a
government does take private property, it must pay a fair price for the property.

Factors:
i.
Property must be taken for public use
vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv
- 23 -

Must be rationally related to a conceivable public purpose

wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww
See Hawaii.
ii.
The taking must substantially advance legitimate state interests and
iii.
It must not deny an owner economically viable use of his land
The Public Use Requirement
Hawaii Housing Authority v. Midkiff 1984
Allowed the government to use its eminent domain power as long as it is rationally related to a
conceivable public purpose.
Facts The state used its eminent domain power to acquire lots owned by large landowners, and
transferred them to the tenants living on them, or to other nonlandowners There was inequality
in the land ownership with 72 private land owners owning 47% of the land and 49% left to
government ownership, leaving only 4% to everyone else.
Issue Is this a violation of the takings clause?
Held No
Where the exercise of the eminent domain power is rationally related to a conceivable public
purpose, the government can do this.

Rule

Here, the states statute was a rational attempt to remedy the public interest of inequality in land
ownership.
Two prong test for public use:
24780.
States action must be rationally related
24781.
To a conceivable public purpose
Hypo: WA statute allowing renters of lot in mobile home community to purchase lots. Is this a
taking? Look to two-prong test to determine if this is a justifiable taking where compensation
must be awarded. Argue each way
Hypo: City doesnt like the way a sports team is ran. City tries to take the team from its owners
and sell it to winners. Is this a conceivable public to allow the government to take private
property? Use the two-prong test and argue each way.

Regulatory Takings: When Does Regulation Become a Taking

Sometimes a regulation results in a taking that requires compensation. This regulation may be a result
of police power acting on behalf of its citizens. A regulation may go too far and result in a taking for
which the landowner must be compensated.
To determine if a regulation is a taking, use the following tests
a. Must not deny an owner economically viable use of his land if so, it is a taking, compensation
b. Government takes physical possession of property taking, compensation
c. Government takes action to abrogate a nuisance no taking, no compensation
* If none of these apply, use the balancing test to determine if the regulation substantially
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advances a legitimate state interest.

* If the regulation meets both of these tests, it is not a taking. If the regulation doesnt meet
both or even one of these tests, it is a 14 th amendment taking, and the landowner must be
compensated.
PA Coal Co. v. Mahon 1922
Facts In 1878, P received title to the surface rights of a parcel of land from the PA Coal Co, which
reserved the rights to remove the coal from under the surface. P also waived all claims for
damages resulting from the removal of the coal. D gave notice of intent to mine, P, knowing
that Ds activity would cause a subsidence of the surface and of Ps house, sought an injunction
based on a state statute that forbids coal mining in such a way as to cause subsidence of any
human habitation.
Issue May a state exercise its police power to destroy previously existing property and contract rights
without paying compensation?
Held No
The general rule is that property may be regulated to a certain extent, but if regulation goes too
far, it may be recognized as a taking.
The Court said that this regulation went too far, it is more than an exercise of police power, but
is a taking for which PA coal company must be compensated.
Applying the test:
25808.
The statute totally divested the D of property rights
25809. The economic detriment of having to leave columns for 1 house outweighed public
concern of single homeowners. So there was no threat to personal safety since adequate
notice was given.
So, this regulation was a taking and could not be carried out without compensation to the coal
company.
When private persons or communities take the risk of acquiring only surface rights, they ought
not be given greater rights than they bought merely because their risk has become an actuality.
Miller v. Shoeone 1928
The Court upheld a VA law that provided for the destruction of ornamental trees affected by a disease
that could also damage apple orchards. The state paid for the price of cutting down the trees and for
cedar logs. Owners were compensated only for the cost of removing their trees. The state had to choose
between preserving the trees or orchards, and could properly determine that the public interest required
the preservation of the orchards.
Lucas v. South Carolina Coastal Council 1992
Facts P purchased two residential lots for $975,000 intending to build single-family homes. Two
years later, SC enacted the Beachfront Management Act, which required P to obtain a permit
from the SC coastal council before changing the use of his land. This effectively barred P from
building homes on the land.
Issue Must the government compensate a private landowner if the governments regulation prohibits
all economically productive or beneficial uses of the land?
- 25 -

Held Yes
The court looked at three tests to see if taking occurred:
26324. Physical Invasion if the state physically takes over the land, this constitutes per se
taking
Ex. take land to build highway, physical possession was of a modest nature where
landlord places cable boxes is taking, chicken farm where airport
26325. The owner is denied all economic benefit
26326. Merely abating a nuisance
There was not a physical invasion, nor an abatement of a nuisance. But, the plaintiff was not left with
any economically viable use. But the court remained this case to find background principles of
nuisance and property law that prohibits use.
D cannot take land without compensation merely y reciting a noxious use or nonbenfiting rationale. D
could avoid paying compensation only if the nature of Ps estate shows that the proscribed use interests
were not part of his title to being with i.e. that his bundle of rights did not include an expectation that
the state would eliminate all economically valuable use.
If the P has truly been deprived of all economically viable use of his property, a taking has occurred. It
is up to the SC courts to decide whether P has really been deprived of all economically viable use. If he
has been, a taking exists even though the state is trying to protect the health and safety of residents
(unless the state already had, under the background principles of the states property law and nuisance
the right to prevent the particular use by P, an issue to be decided by the state courts on reprimand).
RuleIf owner is deprived of all economically viable use, then the state must compensate the owner
unless the state can prove it was merely abating a nuisance.
Penn Central Transportation Co. v. New York City 1978
Facts P owned the Grand Central Station, which was designated a landmark under the City
Landmarks Preservation Law, which prohibited the destruction of designated landmarks. P was
denied permission to alter the terminal solely because of the landmarks law, which P then
challenged as an unconstitutional taking.
Issue May a city restrict the development of individual historic landmarks, beyond applicable zoning
regulations, without a taking requiring payment of just compensation?
Held Yes
The Court applied the balancing test, because the per se tests did not apply. It was not a
nuisance, physical presence, or deprivation of all economic benefit.
The Court looked at the following factors in conducting the balancing test:
26840. The extent of the economic impact
26841. Extent of interference with distinct investment backed expectations
26842. The character of the government action.
The Court found that:
27356. P still had value of surrounding area
27357. This was probably not thought of at the time the P bought the property, so it doesnt
interfere with investment based expectations.
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27358. The character of the landmark program was to promote a common good. This promotes
a legitimate interest in preserving special buildings.
The Court also said that the P was not prohibited from making any improvements, but only these drastic
proposals.
Conditional Regulatory Takings
2-part test:
mmmmmmmmmmmmmmmmmmmmmmmmmmmcmxxviii.
The means chosen by the local
government unit must substantially advance a legitimate aim
mmmmmmmmmmmmmmmmmmmmmmmmmmmcmxxix.
Any give up required of a property
owner must be roughly proportional to the harm caused by the new land use.
Nollan v. CA Coastal Commission 1987
The Court required that the means chosen by the government (the land use regulation) substantially
advance the governmental objective being pursued and does not deny an owner economically viable
use of his land.
The land use restriction prevented the plaintiffs from rebuilding their house on their beachfront property
unless they first gave the public an easement across a sandy strip of the property adjacent to the ocean.
The Commission was concerned that the view of the ocean would be blocked, private use of the shore
front would be increased, and this construction, coupled with other nearby construction, would make it
harder for the public to get to and from public beaches north and south of the Ps property (beaches
which would be connected if the Ps gave the public the required easement. The Court found that it
lacks any substantial advancing of a legitimate state interest. A mere belief that the public interest
would be served is insufficient.
Rules:
1.
If the government had simply required the Ps to give the public an easement over their property,
this would clearly have been a taking, since it would be a permanent physical occupation
2.
An outright refusal by the government to grant the permit would
not constitute a taking if
it substantially advanced a legitimate state interest and did not deny an owner economically
viable use of his land
3.
The conditions attached to the permit must be evaluated by the same standard, so that only if
those conditions substantially advanced the legitimate state interests being pursued would the
conditions be valid.
Dolan v. City of Trigard 1994
Facts P owned a plumbing and electric supply store, and the lot bordered a creek and was thus in a
floodplain. P applied to D for a permit to double the size of her store and pave the lot. D
granted the permit subject to the condition that 15% of the lot must be open space and there
must be a pedestrian bikeway.
Issue May a city condition the approval of a building permit on the dedication of a portion of the
property for public purposes?
- 27 -

Held No
There must be an essential nexus between the permit condition exacted by the city and the
legitimate state interest being pursued. But, the court held that there was not a sufficient degree
of connection between the limitation and the projected impact of the proposed development. A
bike path has nothing to do with object, but the city could have succeeded on the 15% of land
for flood prevention.
The Contracts Clause
Contracts Clause: Article I, section 10, No state shall . . . pass any . . . Law impairing the Obligation
of Contracts
The Contract Clause was enacted principally for the purpose of protecting creditors against debtor relief
laws, by which the obligations of debtors were often postponed or even completely lifted.
Fletcher v. Peck 1810
Concerned the conveyance of the Yazoo lands. The people who conveyed the lands were in cahoots
with the GA legislature. The new GA legislature said that this was bad business and sought to resend
the conveyance. The SC held that GA could not resend its conveyance of the property even though the
original sale contracts had been procured by massive bribery of a corrupt legislature.
Trustees of Darmouth v. Woodward 1819
The Court ruled that New Hampshires revocation of Dartmouth Colleges royal charter, which
transformed it from a private to a public institution, abrogated the public contract implicit implicit in
the charter, even though the Court offered its dictum opinion that the motive for the contracts clause
was almost certainly to protect private contracts from state impairment.
From these two cases, the courts saw use to:
mmmmmmmmmmmmmmmmmmmmmmmmmmmmcdxliv.
state is a party
mmmmmmmmmmmmmmmmmmmmmmmmmmmmcdxlv.
debt-relief law

Limit state action where the

To restrain state action in

Sturges v. Crowninshield 1827

The Court upheld a NY bankruptcy law that applied only to contracts made after its enactment,
reasoning that the law in effect at the time a contract is formed is the law of the contract and thus the
law did not impair the obligation of such contracts.
Charles River Bridge v. Warren Bridge 1837
An important indication of the Courts willingness to balance private rights and pubic necessity in the
case of public contracts. In 1785, MA had granted to the Charles River Bridge Co. the right to contract
and operate a toll bridge across the Charles River. In 1828, MA chartered another company to construct
a competing toll-free bridge. The Court rejected the Charles River Bridge Co.s contention that MA
had impaired its charter. MA had never promised not to establish a free bridge at the place where the
Warren bridge was erected, nor had it promised an exclusive franchise to the Charles River Bridge Co.
- 28 -

MA may have destroyed the economic value of the bridge companys charter, but it had not impaired
the legal rights granted under it. In any case, the Court thought that states, through public contracts,
could not surrender their power to control matters bearing on public health or welfare.
Stone v. Mississippi 1880
The Court upheld a MI statute outlawing lotteries even though a prior legislature had granted to a
private party the right to run a lottery. The Court said that the legislature couldnt bargain away the
policy power.
Manigualt v. Springs 1905
By the end of the 19th century, it was well established that the contracts clause did not bar the legislature
from enacting laws intended for the public good.
Home Building & Loan Association v. Blaisdell 1934 - Landmark Case
Facts A Min. statute, enacted at the height of the Depression, which allowed local courts to give relief
from mortgage foreclosure sales. The law permitted extensions of the period of redemption
from a foreclosure and sale of real property under a mortgage. The plaintiff (loaner) challenged
the extension as improper state interference in a private contract; The state defended the law as
needed emergency legislation to deal with the Depression.
Issue May a state alter existing contractual obligations in order to respond to emergency conditions?
Held Yes
An emergency does not create power, but it may justify the exercise of existing power, As
maintenance of government is essential to having enforceable contracts, circumstances may
arise when exercise of the police power to alter contracts is justified in order to maintain
effective government.
Legislation impairing contracts may be upheld when:
29416. The state legislature declares that an emergency exists
29417. The state law is enacted to protect a basis societal interest, not a favored group
29418. The relief is appropriately tailored to the declared emergency
29419. The imposed conditions are reasonable
29420. The legislation is temporary (limited to the duration of the emergency) (642)
The statue at issue here meets all five of the requirements and is therefore constitutional.
* Controversial statement is that they feel the constitution did not mean what it did when framed, and
so the Court construed this test. (642)
Dissent A provision of the Constitution does not mean one thing at one time and an entirely different
thing at another time.
Rule

The test for legislation as a violation of the contracts clause:

Reasonable given the severity
- Temporary
- Sociality interest (broadly construed)

Public Contracts After Blaisdell

- 29 -

United States Trust Co. v. New Jersey 1977

The first time in 4 decades that the SC invalidated a state law on Contract Clause grounds
Facts NY and NJ formed the NY and NJ Port Authority by interstate compliance. In 1962, both states
passed statutes prohibiting financing of passenger railroad facilities with revenues pledged to
pay the authoritys bonds, unless the facility was self-supporting. In 1974, the states
retroactively repealed the 1963 covenant in order to permit greater subsidies of mass transit. US
Trust Company, trustee and holder of Authority bonds, challenged the 1974 law on Contract
Clause grounds.
Issue May a state impair the obligation of its own contracts, based on its own determination of
reasonableness and necessity?
Held No
A state may only impair its contracts obligations; it must be reasonable and necessary.

Rule

Allowing a state to reduce its financial obligations whenever it wanted to spend money for what
it regarded as an important public purpose would negate all Contract Clause Protection. For this
reason, complete deference to legislative assessments of reasonableness and necessity is
inappropriate. After independently examining the existence of less drastic alternatives, the court
held that Ds repealing the acts are excessively harmful to Ps contractual obligations. * There
were less drastic alternatives
A state is not free to impose a drastic impairment when evident and more moderate course could
serve its purposes equally well.
Are there less drastic alternatives?
Is this necessary?
Questions to ask yourself:
31068. Does this constitute a contract?
31069. Is this contract a violation of the contracts clause?

Private Contracts after Blaisdell

Allied Structure Steel Co. v. Spannaus (1978)
Energy Reserves Group, zinc. v. Kansas Power & Light Co.

Equal Protection (tested as essay open book)

Minimal Scrutiny
Intermediate Scrutiny
Strict Scrutiny

The means chosen are rationally related to a legitimate government end

There must be an important government objective and the means must be
substantially related to the achievement of those objectives
Must be a compelling government interest and the means used are
the most narrowly tailored (least restrictive) to achieve the compelling
interest

Intermediate Scrutiny Classifications:

- 30 -

 Age
Gender
Illegitimate birth
Strict Scrutiny Classifications:
mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmcmlxxx.
Protected by Bill of
Rights
mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmcmlxxxi.
Discrete and Insular
Minorities
zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz
Religious
aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa
National (LAWFUL ALIENS)
bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb
Racial minorities
mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmcmlxxxii.
Democratic
Processes
.
Voting
.
Political speech
3 things the courts look at to determine if strict scrutiny is used:
Immutable
History of Discrimination
Discrete and insular minority.
Minimal Scrutiny Classifications:
Famous Footnote #4: United States v. Carolene Products Co. Justice Harlan
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. [Prior cases employing heightened scrutiny involved] restrictions upon the
right to vote, [restraints] upon the dissemination of information, [interferences] with political
organizations, [and] prohibition of peaceable assembly. Nor need we enquire whether similar
considerations enter into the review of statutes directed at particular religions, or national, or racial
minorities; whether prejudice against discrete and insular minorities may be a special condition, which
tends seriously to curtail the operation of those political process ordinarily to be relied upon to protect
minorities, and which may call for a correspondingly more searching judicial inquiry.
Over inclusive: A statutory classification which includes more people or things than necessary to
achieve the objective.
Ex. A juvenile curfew requiring minors to be off the streets from midnight to 6 am, which has been
enacted for the sole purpose of preventing nocturnal crime by minors. The classification is over
inclusive because minorities who are criminals are completely included in the group of people affected
- 31 -

by the statutory classification, but many minors are not criminals. More people than necessary are
included in the statutory classification than is necessary to accomplish its objective.
Under inclusive: A statutory classification which includes fewer people or things than necessary to
achieve the objective.
Ex. Sport utility vehicles impede driver visibility and produce air pollution but constitute only a small
fraction of the vehicles and other objects that impede driver visibility and produce air pollution. Fewer
things are included in the statutory classification than is optimal to accomplish its objective.
Overview of attacking exam on equal protection:
.
Anytime you see a legislative classification a placement of people or businesses into two
or more groups think about the possibility that the classification might violate equal
protection. If the issue is whether the government has correctly placed an individual into the
right group or class, you have a problem of procedural due process, not equal protection.
(Example: if the government says all fire fighters must retire at 55, there is an EP problem
because the issue is whether the government can set up the classes in this way. But if the
government says that any firefighter too weak to do the work will be discharged, and the
government then says Norman, you are too weak, the issue of whether Norman has been
treated fairly is a due process issue, not an equal protection issue, because the issue is
whether the government has given Norman procedural regularity in deciding which class he
falls into.
.
For there to be an equal protection problem, there must be discrimination against members
of one of the classes, i.e. one class must be treated intentionally less favorably than the
other.
.
Look to see if the EP attack is on the face of the statute or as applied.
.
Examine whether the discrimination is being practiced by a state/local government, or by
the federal government. If its the state or local government, then youre using the 14 th
amendments EP clause. If its the federal government, youre using the 5 th amendments
due process clause.
.
Once you identified the EP problem, there are three levels in evaluating the EP situations:
.
Mere rationality gays, mentally ill, aliens, age, poor
.
Intermediate gender and illegitimacy
.
Strict scrutiny suspect class, fundamental right
.
Mere rationality
.
If the classification is economic, you will almost certainly be using mere
rationality. Example: The state says no one can put a sign on a rooftop, but gives an
exception for a sign advertising goods produced by the owner of the building, or if the
state taxes one group more heavily than another.
.
Most types of social welfare classifications will also be judged by the mere
rationality standard. Examples include age, discrimination against aliens, discrimination
against the issuance of licenses or permits, discrimination against out of staters,
discrimination against the poor
.
Unequal treatment of gays and mentally ill fall into this.
.
sd??
- 32 -

Minimal Scrutiny
Railway Express Agency v. New York 1949 Discrimination based on advertising on vehicles
The City of New York passed a traffic regulation that prohibited advertising on vehicles except
for business notices upon business delivery vehicles or in other owner advertising. Railway
express sold the space on its trucks for advertising by other businesses, and was convicted for
violation of Ps regulation. Railway express said that this imposed discrimination between
companies that advertise on their own trucks and those, which advertise on others. The court
upheld the conviction. The states interest was in traffic safety and the state said that people
who advertise on their own trucks do not present the same traffic problem in view of the nature
or extent of advertising they use. Additionally, the classification has relation to the purpose for
which it is made and does to contain the kind of discrimination against which the equal
protection clause affords protection. This was under inclusive because it limits advertising on
working vehicles, but not self-owned vehicles.
Rule: An equal protection claim if successful, doesnt restrict government agency from doing
something, it just says that you must treat everyone the same
Massachusetts Board of Retirement v. Murgia 1976 Mandatory retirement age of state police officers
The Court upheld a Mass. statute requirement that all uniformed state police officers retire at
age 50. The Court rejected the idea that there was any fundamental right to pubic employment
and the notion that classifications by age ought to be treated as suspect. Accordingly, the court
used minimal scrutiny. The purpose of the mandatory retirement age was to assume a
physically fit and vigorous cadre of police officers. Even though some officers over age 50 are
fit and some are not, the Court regarded the retirement age as rational at least in relation to the
goals of the regulation.
* Usually we use intermediate scrutiny with age classifications.
United States Railroad Retirement Board v. Fritz - 1980 - Changing benefits of retirement system
Facts In 1974, Congress fundamentally altered the railroad retirement system that had been in effect
since 1937. Congress acted to place the system on a sound financial basis by eliminating future
accruals of windfall benefits resulting from concurrent qualification for railroad retirement and
social security. The new system established several classes of employees whose benefits would
be computed differently. Fritz represented a class of employees who had between 10 and 20
years of railroad employment but who would be denied windfall benefits because they had no
concurrent connection with the railroad industry in 1974 or as of the date of retirement. P
claimed that new system denied equal protection.
Held The issue was whether the ends are appropriate, Here, the government is trying to prevent
insolvency of the entire RR benefit program, to make sure no vested employee was deprived of
his rights. The court reasoned that Congress may have been attempting to preserve limited
windfall benefits only for career railroad employees, and that persons still working in
railroading when the act went into force were more likely to be career railroad workers than
those who had left railroading before the act came into force. Since this was a plausible reason
for Congress action, it was sufficient to save the statute.
- 33 -

* Sometimes you look to the legislative history, but if it is different than the statute, then look to the
ends. Here, D advanced plausible reasons for Congresss action.
The plain language of the statute marks the beginning and end of our inquiry. Congress determined
that some of those who in the past received windfall benefits would not continue to do so. Because
Congress could have eliminated windfall benefits for all classes of employees, it is not constitutionally
impermissible for Congress to have drawn lines between groups of employees for the purpose of
phasing out those benefits. the only remaining question is whether Congress achieved its purpose in a
patently arbitrary or irrational way. The classification here is not arbitrary says appellant because it is
an attempt to protect the relative equities of employees and to provide benefits to career railroad
employees
United States Department of Agriculture v. Moreno 1973 - Constitutionality of food stamp act
This case concerned the constitutionality of the Food Stamp Act, which excludes participation in the
food stamp program any household containing an individual who is unrelated to any other member of
the household. The court found that the ends were not legitimate. The court found that this statute was
aimed at the hippie communes. The legislative history indicates that it was enacted to prevent hippies
and hippie communes from participating in the program, and thus, the court held that this was not a
legitimate end.
Romer v. Evans - 1996 - Statute preventing protection of gays
Colorado voters adopted an amendment to the Co. constitution that prohibited all legislative,
executive, or judicial action at any level of state or local government designed to confer a
protected statutes upon, or to allow claims of discrimination by any person based on
homosexual, lesbian, or bisexual orientation. The court found that this influenced the mere
rationality review because there was no legitimate statue interest in fact being served and the
means chosen by the state were not rationally related to the interest that the state asserted. The
court said that he actual effect of the amendment is to put homosexuals in a solitary class with
respect to transactions and relations in both the private and governmental spheres. It imposes a
special disability upon these persons by forbidding them to seek or enjoy the safeguards against
discrimination that other groups can enjoy. The amendment in this case has the peculiar
property of imposing a broad and undifferentiated disability on a single named group, and its
breadth is so discontinuous with the purported reasons for it that it cannot be explained by
anything but animus towards homosexuals. It lacks a rational relationship to legitimate state
interests. Animus toward a politically unpopular group cannot constitute a legitimate state
interest.
Dissent cited Bowers v. Hardwick where the court held that the constitution does not prohibit making
homosexual conduct a crime.
* Romer looks as though it will prove to be the first step in applying some kind of heightened equal
protection review to government action that disfavors homosexuals. Although the majority never
mentioned Bowers, the tone of the majority opinion and the fact that it commanded 6 votes suggests
that the Bowers days may be numbered. It would not be surprising if measures disfavoring gays
ultimately get the same intermediate review that regulations classifying on the basis of gender.
- 34 -

City of Cleburne v. Cleburne 1985 - City group ordinances against the mentally ill
Facts Under a city-zoning ordinance, group homes for the mentally retarded may operate only with a
special permit that requires the signatures of property owners within 200 feet of the property to
be used.
Issue Is mental retardation a suspect class for equal protection analysis?
Held No
Generally, under the Equal Protection Clause, legislation is presumed valid and will be upheld if
the classification drawn by the statute is rationally related to a legitimate state interest.
The court looked at the following factors to determine whether to apply strict scrutiny:
. Immutable
. Involuntary
. History of Discrimination
* Thus, if they satisfy these, then may be a suspect classification. But, the court did not apply
heightened scrutiny because they felt that the legislature has taken precaution for the mentally
infirm.

Rule

Under the rational basis however, the ordinance is defective. It does not apply to nursing homes
for the aged or convalescents, apartment houses, sanitariums, or boarding houses. Nothing in
the record explains how the permit requirement for only facilities for the mentally retired is
rationally related to any government purpose.
The SC has refused to treat mental retardation as a quasi-suspect classification requiring
heightened scrutiny. If quasi-suspect status were given to the large and amorphous class of the
mentally retarded, there would be no principled way to deny quasi-suspect status to a number of
other groups, including the aging, the disabled, the mentally ill, and the infirm.
Signifies the reluctance of the Court to adopt quasi-suspect classes.

Pyler v. Doe- 1982 - Discrimination based on illegal allienage

Facts Texas enacted a statute that withheld state funds for the education of illegal alien children and
that allowed local school districts to deny enrollment to such children. Doe challenged the
constitutionality of the stat
Issue May a state deny free public education to undocumented school-age children that it provides to
citizens and legally admitted children?
Held No
The 14th Amendment guarantees equal protection and due process to any person within a states
jurisdiction. Even illegal aliens are entitled to this protection.
Equal protection does not require that illegal aliens be treated as a suspect class just because
their illegal presence is not a constitutional irrelevancy. Education is not a fundamental right,
although it is more than a mere government benefit. (The court in San Antonio previously held
that education isnt a fundamental right). They are not a suspect category because the status is
voluntary, it isnt immutable because the laws may change, and they have put themselves into
this situation.
This statute poses a lifetime stigma on children who are not accountable for their disabling status.
- 35 -

Therefore, the discrimination cannot be allowed unless it fulfills a substantial state purpose. The state
interests protection against excessive illegal immigration, avoidance of the special burden of
educating such children, and the likelihood that the children will not remain in the state-are not
furthered by the means chosen, even assuming the policies are legitimate.
Significance The court held that the state of Texas must show that the denial of education furthers
some substantial state interest rather than a legitimate state interest as rational basis has held in the past.
Do these cases reflect use of a heightened scrutiny?
Rationally related to substantial interest to rationally relate to a legitimate interest.
Strict Scrutiny and Suspect Classifications
Suspect classifications are presumptively void, and this trigger strict scrutiny. There are three suspect
classifications:
.
Race
.
Ethnicity or national origin
.
Lawful resident alienate
1.
Race
Race is a suspect class. Therefore, any intentional discrimination based on race either in the face of
the statute/regulation, or in the way it is applied must be strictly scrutinized. That is, the classification
must be struck down unless it is necessary to achieve a compelling governmental interest. Must prove
that the government is acting with the purpose to discriminate, not just the effect.
DISCRIMINATION AGAINST A SUSPECT CLASS ONLY TRIGGERS STRICT SCRUNITY
IF INTENTIONAL
Washington v. Davis 1976
Set forth the requirement that intent to discriminate can be found before an equal protection
racial discrimination claim would be upheld
Facts Davis, a black police officer, challenged the promotion policies and recruiting practices of the
District of Columbia Police Department. Unsuccessful black applicants brought suit after they
had failed a written test of verbal ability and reading comprehension, which blacks failed four
times as frequently as whites. The plaintiffs claimed that this differential impact made the
hiring process violative of equal protection even though those who composed or selected the
test had not intent to discriminate against blacks, resulting in a violation of the 5th amendment.
Issue Does a qualification test which has not been established as a reliable measure of job
performance and which fails a higher percentage of blacks than whites violate the fifth
amendment due process clause?
Held No
Under Title VII, a disparate impact makes out a prima facie case of discrimination and the
employer must address the validity of the regulation. But the SC says the 5th amendment
challenge requires more than just a showing of disparate impact, but be intent.
- 36 -

Rule

A disproportionate impact on different races resulting from a general qualification test does not,
by itself and independent of any discriminatory purpose, establish a constitutional violation.
Government action is not unconstitutional solely because it has a racially disproportionate
impact; there must be a racially discriminatory purpose to justify invalidation. This purpose
doesnt have to be express, there only must be intent.
When a disproportionate racial impact is proven, the government must show that the law is
neutral on its face and serves proper government ends, but the burden is not high. The test
involved here has a reasonable relation to the need for competent policeman. Additionally has
made affirmative efforts to recruit black officers, indicating a lack of intent to discrimination.
A showing of discriminatory impact may support an inference of discriminatory purpose, which
then must be rebutted by the government.

Majority established that discriminatory intent is indispensable to shift a facially neutral

classification into the suspect category. (which would require strict scrutiny).
Arlington Heights v. Metropolitan Housing Development Corp. 1977
MHDC requested that Arlington Heights, a mostly white Chicago suburb, to rezone property to permit
construction of low-income housing, which would be occupied in part by racial minorities. Arlington
Heights refused. MHDC charged that the refusal was racially discriminatory and a violation of equal
protection. The SC said Official action will not be held unconstitutional because it results in a racially
disproportionate impact. But Davis does not require a plaintiff to prove that the challenged action
rested solely on racially discriminatory purposes. So, the court said it was invalid.
Rule: Although a discriminatory purpose is required for invocation of strict scrutiny, such a purpose
need not be the sole purpose of the statute. It is enough that the purpose was a motivating factor in the
legislatures decision to act.
Factors that establish racial discrimination:
2. Specific sequence of events leading up to challenge may be relevant
3. Departures from normal procedural sequence
4. Substantial departures from normal conduct
5. Legal or administrative history
6. Historical background of the decision
Official Road to Segregation
A.
Separate but Equal
Segregation = the maintaince of physical separateness between the races
Since 1954, officially sanctioned segregation not only in the public schools but also in other areas has
been treated as a clear violation of equal protection.
Plessy v. Ferguson 1896 Separate but equal doctrine
Originally, the SC said that separate but equal treatment did not violate the equal protection. The Court
upheld a LA law calling for separate but equal accommodations for white and black railroad
passengers. The court applied a king of rational basis test that the court was acting to promote public
good. The court stated It was a mere assumption that the enforced separation of the two races stamps
the colored race with a badge of inferiority. If this be so, it is solely because the colored race chooses to
- 37 -

put that construction upon it. Thus, the court said that blacks chose to put inferiority on riding in two
cars.
Dissent: Harlan argued that the law did violate equal protection. Although it appeared facially neutral
everyone knows that it had its origin in the purpose, not so much to exclude white persons from
railroad cars occupied by blacks as to exclude colored people from coaches occupied by or assigned to
white persons. Harlan also stated that the Constitution is color blind.
In the 1920s and 1930s, blacks formed the NAACP and other defense funds. There strategy was to try
to overturn Plessy. They chose the areas of education. Since 1986, the adoption of the 14 th amendment
education became the most significant thing offered by the state. The basic thought is that in the
separate but equal argument, the intangibles do count.
Missouri v. Canada 1938
Missouri required racially separate education. The white university system included a law school, the
black system did not, but Missouri would pay reasonable tuition at out of state law schools to enable
black students to attend law school. The Court found Missouris scheme to be a violation of equal
protection. The basis consideration is not what sort of opportunities other states provide, or whether
they are as good as those in Missouri, but opportunities Missouri itself furnishes to white students and
denies to others solely upon the ground of color.
Sweatt v. Painter 1950
The University of Texas refused to admit Sweatt, a black; to its law school in the ground that a public
blacks only law school was available. The Court found Texas refusal a denial or equal protection
because the black institution was quantitatively and qualitatively inferior. So, based on the intangibles
and what goes with education at a first rate school, the court found this to be discrimination.
McLaurin v. Okalahoma State Regents 1950
The University of OK admitted McLaurin, a black, to its education school, but made him sit in a blacks
only section in each classroom and gave him a special table in the library, and barred him from eating
with white students in the cafeteria, While McLaurin enjoyed the same physical facilities as whites, the
Court found the arrangement unequal because it impaired and inhibited his ability to study, to engage in
discussions and exchange views with other students, and in general to learn his profession. Thus, once
again, the court held that based on intangibles, he had been denied equal protection even though his
accommodations were the same as the others.
End of Separate but Equal
Brown v. Board of Education of Topeka 1954 This case is the culmination of the other cases
Facts Brown and other black schoolchildren were denied admission to schools attended by white
children under laws requiring or permitting segregation based on race. P challenged the law but
was denied relief under the separate but equal doctrine.
Issue May children be segregated in essentially equal public schools solely on the basis of race?
Held No
Granted that black and white schools are substantially equal in tangible factors, there exists an
individuals effect when black and white children are segregated. Namely, segregation creates a
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feeling on inferiority that may significantly affect a childs motivation to learn. Separate
educational facilities are therefore inherently unequal, and their maintenance by the government
authority denies equal protection of the law.
We conclude that in the field of public education the doctrine of separate but equal has no
place. Separate educational facilities are inherently unequal.
Rule The Court rejected the separate but equal doctrine at least insofar as public education was
concerned. Abrogation of separate but equal.
Walthall said that there were two approaches to racism:
.
Color blind approach where race should never be a determinative factor
.
Anti-subordination: use race to deal with past/present practices of racism and discrimination
* Here, it the court took a color blind approach, then read it as separate but equal, but if read it as
anti-subordination, you recognize it as integration. When courts began implementing Brown,
Courts used an anti-subordination approach.
Brown v. Board of Education II 1955
This case reaffirmed the fundamental principle that racial discrimination in public education is
unconstitutional and declared that all provisions of federal, state, or local law requiring or permitting
such discrimination must yield to principle. The Court remanded this case to the trial courts to enforce
Brown I rights. The Court did three things: (1) It gave the federal district Courts primary responsibility
for supervising desegregation because of their proximity to local conditions and the possible need for
further hearings, (2) The Court directed the district courts to use to use general equitable principles,
and the Court authorized the district courts to take into account the public interest in eliminating
desegregation in a sympathetic and effective manner.
Desegregation went very slowly, and 10 years later in many states, segregation was maintained in the
deep south (brown was met with great resistance). * Note that the 111 Amendment of the ALA
Constitution laid a basis that was never implemented that said that we could just close the schools.
Cooper v Aaron 1958
The AK governor called out the National Guard to block the integration of public schools in AK. All
nine justices refused to grant to the Little Rock Board of Education a 2.5 year delay in desegregation.
The Court refused to allow the constitutional rights of African American Children to be compromised
by actions of the governor and the legislature, even though the school board itself had made a goodfaith effort to desegregate. The Court cited Marbury, which held that the SC was the ultimate
interpreter of the constitution.
Prince Edward County
It is not in the discretion of the county to close the school rather than integrate it.
Green v. County School Board 1968
To remedy its prior deliberate racial segregation, a school district with two schools, approximately
equal numbers of black and white students, and little residential racial segregation adopted a freedom of
choice plan that permitted students to choose the school they wished to attend upon entering the system.
After three years, the formerly all white school was still about 85 percent white (and no whites
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transferred to black schools). The Court basically did nothing; the Court held that the plan did not
adequately desegregate the schools. Once a school system had been officially segregated, the
Constitution required that it be converted to a unitary, non-racial system of public education. The
Court attached importance to the effect of desegregation measures, and not merely to the intent with
which the measures were enacted. Once official segregation existed, good intentions on the part of the
school board were not sufficient; whatever affirmative measures were needed to bring about a unitary,
non-racial system must be implemented. The court said that boards have an affirmative duty to covert
dual system to unitary system. To accomplish this, the court said its necessary to use race to deal with
this problem. The court says you must take affirmative steps to undue this system. It is saying because
of the record of past discrimination, in order to remedy this, must assign number of blacks to schools
and number of whites to schools or something similar to this. Takes process and analysis, which takes
into account the race of students.
Swann v. Charlotte-Mecklenburg Board of Education 1971
Facts Charlotte, NC, initially desegregated its formerly officially segregated schools by adopting a
court-approved geographic zoning plan coupled with freedom of transfers. This left over held
the black students attending schools that were nearly 100 percent black.
Held 1.
The Federal Courts may not order a school board to adjust the racial composition of any
of its schools (no matter how great the racial imbalance as between schools) unless there has
been a finding that there was officially maintained segregation.
2.
Once official segregation is found, the court may in determining the appropriate remedy,
consider what the ratio is of black students to white students for the district as a whole. While
the court may not require that every school in the district have precisely that ratio, the district
wide ratio may be considered as a useful starting point in shaping a remedy.
3.
The school may assign kids to districts based on race by redrawing school lines
4.
The Court also approved busing as a means of bringing about desegregation.
* Remember that WA v. Davis said that you must show intent discriminate.
Does implementation of Brown require an inter district remedy?
Under Green and Swann, it was an obligation under Brown to achieve a unitary system.
Milken v. Bradley 1974
The SC held that unless there was a showing that there had been a deliberate structuring of district
lines, and then the remedy should be intradistrict with the city of Detroit rather than interdisctrict,
which covers city and suburbs. Justice Burger cited the scope of the remedy is determined by the
nature and extent of the constitutional violation. Thus, there could be a cross-district remedy only if
there had been a cross-district wrong, i.e. segregation in Detroit that caused an effect in the suburbs, or
vice versa.
The idea was to move to a unitary system and the implementation of Brown went on for four decades.
Board of Education of OK City Public Schools v. Dowell 1991
The Court held that as long as the school board had complied in good faith with the desegregation
decree (which it had apparently done for the six prior years), and as long as the vestiges of past dejure
segregation had been eliminated to the extent practible, the desegregation decree should be lifted and
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the school district allowed to revert to a system of neighborhood schools. This was true even though
evidence showed 33 of 64 elementary schools would then be either more than 90% black or more than
90% white. (If the present residential segregation was due to the prior official school segregation, then
obviously the SCs vestiges of past discrimination removed standard would not be satisfied. But if
the residential segregation was due primarily to peoples personal choices about where to live, then, the
SC indicated, the court desegregation order would have to be lifted and the district could revert to
neighborhood- and thus de facto segregated schools.)
The Court indicated a two-step test to determine if segregation had been achieved:
.
All vestiges of past discrimination have been removed and
.
The schools are in good faith compliance with existing court orders.
Freeman v. Pitts 1992
The Court applied Dowell in affirming a district courts partial termination of judicial supervision of the
Dekalb County, GA schools. Concluding that the schools were unitary insofar as pupil assignment and
physical facilities were concerned, the district court terminated its jurisdiction over those areas. The
Court, in an opinion by Justice Kennedy, clarified the meaning of Dowells insistence on removal of all
vestiges of past discrimination as a precondition to unitary status:
The vestiges of segregation that are the concern of the law in a school case [must] have a
causal link to the de jure violation being remedied. [But] desegregation [that] is a
product not of state action but of private choices [does] not have constitutional
implications. [Demographic] forces causing population change [do not necessarily] bear
any real and substantial relation to a de jour violation.
De jour segregation is intentional discrimination. De facto is unintentional.
Affirmative Action
The problem is what level of scrutiny do the courts use?
Affirmative action (reverse discrimination) is an attempt to remedy past discrimination.
Since classifications which disadvantage a racial minority will be strictly scrunized, and may be
justified only where they are necessary to fulfill a compelling governmental objective, strict scrunity is
required of affirmative action attempts based on race as its required of race-based classifications that
disadvantage a minority. This is the result of the City of Richmond v. JA Cronson Co.
Regents of the University of CA v. Bakke 1978
Facts The admissions procedure at the University of CA-Medical School reserved 16 seats in each
entering class of 100 for disadvantaged minority students. Only African-Americans, Chicanos,
and Asian Americans could compete for these places. The admissions officers attempted to
admit, for these 16 seats, only persons who were not only members of the specified minority
groups, but were also likely to have been the victims of racial discrimination. This was done by
scrutinizing each application to see whether it reflected economic or education deprivation.
Bakke, a white, sued the University the University, claiming that the admissions scheme
violated the EP clause, as well as Title VI of the 1964 Civil Rights Act. Bakke contended that
his grade point average and MCAT scores were higher than those of some persons accepted for
the minority slots. His equal protection claim was successful in the CA courts.
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Issue May a school use race as a factor in its admissions process?

Held Yes
Title VI of the Civil Rights Act of 1964 must be held to proscribe only those racial
classifications that would violate the EP Clause of the 5th Amendment.
Equal protection requires that racial and ethnic distinctions of any sort be examined by the most
exacting judicial scrutiny. It is incorrect to assert that the 14th amendment justifies benign
preference for one race over another due to past discrimination, since its language is
inconsistent with such an interpretation, and the kind of variable and social and political
analysis necessary to produce and enforce such rankings is beyond judicial competence.
The use of classification may be justified if the state can show that its purpose or interest is both
constitutionally permissible and substantial and that its use of classification is necessary to the
accomplishment of its purpose or the safeguarding of its interest.
Justice Powell was the swing vote. He agreed you need to get to the 14 th amendment. He said
the level of scrutiny for reverse discrimination is strict scrutiny, so they should have a
compelling state interest/purpose and the means selected must be necessary and they must use
the least restrictive means to obtain this goal, so the UC Davis setting aside of 16 seats was not
lawful. Thus, Powell felt that the state had a compelling interest to obtain diversity if it did so
like Harvard where they did not set aside seats, but minorities would be chosen among equally
qualified applicants.
Dissent
Concurrence and dissent felt that they should have used intermediate scrutiny, which
should serve an important purpose but is less than strict scrutiny. Thus, they held that it should
serve an important purpose, which is substantially related to the means. Unlike strict scrutiny,
which is, the least restrictive means that are necessary to achieving these means. And thus, the
court said that applying this intermediate scrutiny; the universitys plan passes the intermediate
test.
Justices
5 followed Powell and said strict scrutiny must be used.
4 followed Renquist and held that the policy is valid.
Rule Justice Powell believed that any racial or ethnic classification, regardless of class, is subject to
strict scrutiny.
* Walthall that strict scrutiny becomes the standard in employment discrimination cases.
** See pages 722 724 for strict scrutiny analysis.
Fullilove v. Klutznick 1980
Congress was not required to make specific findings of discrimination to engage in race-conscious
relief.
City of Richmond v. Cronson 1989
Facts Citing the authority of Fulllilove, the city of Richmond required prime contractors on city
projects to set aside at least 30% of its subcontracts to minority business enterprises, using the
Fullilove definition of minority group members. The program was adopted based on evidence
that minority businesses had received a significantly lower percentage of contracts (.67) than the
percentage of minorities living in the city (50). However, there was no evidence of racial
discrimination on Ps part or on the part of any of Ps prime contractors. P brought suit against
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JA Cronson to enforce the rule.

Issue May a city adopt a set-aside program-favoring minority owned contractors on city projects
when there is no evidence of direct discrimination on the part of the city or its prime
contractors?
Held No
P notes that under Fullilove, Congress was not required to make specific findings of
discrimination to engage in race-conscious relief. P asserts that if the federal government could
do this, a city such as P can as well. However, unlike the states and their subdivisions, such as
P, Congress has a specific mandate to enforce the 14th Amendment.
The Court held that the objective of the 14th amendment was to limit the states use of race as a
criterion for legislative action and to empower the federal courts to enforce those limitations.
The Court announced that the level of scrutiny to be applied is strict scrutiny and that the statute
failed strict scrutiny because though this is a compelling interest, these were the least restrictive
means of accomplishing this.
Courts analysis:
Ps factual predicate for its plan consists of a generalized assertion that there has been past
discrimination in the construction industry, attributable to a series of racial as well as nonracial
factors. P can do no more than speculate as to how many minority firms would exist absent past
discrimination. It cannot show how many minority members are qualified to act as contractors,
or how many minority members are eligible for membership in contractors associations. All P
can show is that minority businesses received less than 1% of prime contracts, even though its
minority population is 50% but statistical generalizations cannot substitute for evidence of
discrimination. Permitting a racial classification on such generalizations would enable local
governments to create a patchwork of racial preferences without ascertainable limits on size or
duration. Ps plan covers Spanish-speaking, Oriental, Indian, Eskimo, and Aleut persons,
against whom there is no evidence of discrimination in Ps constructions industry. This suggests
that Ps purpose was not to remedy past discrimination. The court said that there were other
things they could have done and that the P cannot use broad statistical requirements simply to
minimize the administrative burdens of remedying specific prior discrimination. Unlike the
plan upheld in Fullilove, P's plan does not provide for a waiver of the set-aside provision where
the minority contractors higher price was not attributable to the effects of past discrimination.
Rule Strict scrutiny is applied to city actions and that race-based regulations are subject to strict
scrutiny in all cases.
Adarand Constructors v. Pena 1995
Strict Scrutiny applies to test affirmative action programs based on race. When race based action is
necessary to further a compelling interest, it is permitted so long as it satisfies the narrow tailoring test
of strict scrutiny.
* If you have a past history of discrimination against a race and the benefited person was a victim of
defendants discrimination, as a remedy to benefit the personal victim in a suit against an entity that
discriminated him or her, the courts can compel the defendants entity to more than pay damages or
admit employee discrimination.
University of Michigan Admissions and Affirmative Action Cases
There is an express racial classification, so strict scrutiny is triggered
- 43 -

Both cases were 5-4 with OConnor as the swing vote

Compelling government interest?
o YES, diversity in itself is compelling, creates a better educational experience
o The compelling interest is NOT diversity of skin color, but diversity of viewpoint
o Narrowly tailored requirements: cannot unduly burden other groups

Grutter v. Bollinger (2003)

Univ. of Michigan law school has an affirmative action program set up that attempts to achieve a
critical mass in its student body. Grutter, a white female w/ 3.85 GPA + 161 LSAT. Denied
admission, but is in the iffy category.
Level of scrutiny: STRICT
(1) This is a race-based classification
(2) Strict scrutiny whether purpose of program is affirmative or negative
(3) Ct challenges strict in theory, fatal in fact
a. State government actor = public law school
b. State interest: Diversity w/in the student body
Thomas (dissent): Classifications are not benign.
(1) Fundamental premise is wrongthat programs bring people up instead of bringing them
down. Programs perpetuate notion that racial minorities are inferior
(2) Narrow tailoring question is problematicUmich did not adequately exhaust all raceneutral classifications
(a) Lottery idea
(3) Questions state interest in having an elite law school
Result:
(a) Increasing deference
(b) Strict scrutiny is NOT FATAL
(c) Diversity IS a compelling factor to ensure the free exchange of ideas in the classroom
Limitations of this holding:
(a) Does linking this situation to academic freedom limit extending the need to diversity to civil
service and other areas of government?
(b) How far can diversity be pushed from the academic setting?
Gratz v. Bollinger (2003) University of Michigan Undergraduate Case
Points for race system unconstitutional
Narrowly tailored?
NO, because assumes that diversity of race = diversity of viewpoint
Uses sledgehammer of race to achieve individual diversity
Numbers are scary: no ability to give and take
* A big practical problem here was that you got more points for race than for being the next Picasso
Remedy of Affirmative Action:
If someone in trial establishes discrimination based on race by state, the remedy may not declare
discrimination unlawful, but provide a remedy that makes up for prior discrimination. Legitimate end
remedying past discrimination.
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Plaintiff
1.
If you have a plaintiff who was wronged
2.
If you are a plaintiff who is in a class of persons who has been discriminated against
Defendant
1.
Proven wrongdoer based on judicial administrative findings
2.
Field is one in which there have been disparate impacts (legislative findings)
3.
General societal discrimination
P1 v. D1 is the paradigm case of affirmative action
P2 v. D2 is like the Alabama Department of Public Safety, may be too broad to have affirmative action
P2 v. D1 is like the City of Richmond no judicial record, but there was discrimination in the trade.
This is grounds for affirmative action.
P2 v. D3 the history of slavery and discrimination. 2 versions:
1. Color blind version
2. Race should be utilized to address racism
Other permissible ends to affirmative action:
.
Diversity
Hopewood woman was denied admission to Texas law school and she brought Bakke
claim that she would bring diversity to the UT lawschool student body. The 11 th circuit
held that diversity was not a legitimate end for reverse discrimination.
University of WA They ruled the opposite way and held that diversity is a permissible
end.
.

Role models
Is it significant that black students have before them black teachers?
Wygant held that role models are not enough to institute an affirmative action claim.

Race and the Political Process

The explicit use of race to alter the political process surely triggers strict scrutiny.
Rietman v. Mulkey 1967
The Court voided an amendment to the CA constitution on somewhat different equal protection
grounds. CA voters added Article I, section 26, to the state constitution, which prohibited the state from
interfering with the right of any person [to] decline to sell, lease or rent [his real] property to such
person or persons as he, in his absolute discretion, chooses. The Court subjected section 26 to strict
scrutiny and invalidated it because it was intended to authorize, and does authorize, [private] racial
discrimination in the housing market. Though equal protection does not require a state to ban private
racial discrimination, the CA amendment was seen to be a device by which the state adopted as its own
the private racial discrimination it insulted with constitutional protection. Nothing in the constitution
requires CA to adopt a fair housing act, but the SC did not address this.
Hunter v. Erickson 1969
Facts The City of Akron, Ohio enacted an ordinance to assure equal opportunity to all persons
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regardless of race, national origin. Before it was passed, the city voted that ordinances
regulating sale and lease of real estate on the basis of race, color, religion, national origin, or
ancestry, however, had to be approved by a majority of voters before becoming effective under
section 137 of the city charter. A Negro citizen said this violated equal protection because it
treats them differently.
Issue May a local government impose greater procedural hurdles for certain race-related ordinances
than it imposes for most of its other ordinances?
Held No
The effect of 137 is to make it more difficult to enact ordinances to end housing discrimination
based on race, color, religion, national origin, or ancestry. Even though it does not disadvantage
among the various racial or religious groups, it does disadvantage those who would benefit from
an end to discrimination.
Section 137s impact in fact falls on the minority, even though it is neutral on its face. It is a
reaction classification and is suspect and violates the equal protection clause.
Washington v. Seattle School District 1982
Facts The Seattle School District No. 1 (P) implemented several busing plans to eliminate segregation
in the schools. A group of opponents to the plans placed Initiative 350 on a statewide ballot.
The Initiative precluded school boards from busing students further than the next-closest school
to their places of residence. The Initiative set forth several exceptions, but the only exception
for racial purposes was in response to a color order. The Initiative passed,, effectively
transferring power to order busing from P to legislature.
Issue May a state use the racial nature of an issue to define its governmental decision making
structure?
Held No
The State is functioning as a school board, which involves itself in all aspects of educational
policy, which burdens all future attempts to desegregate.
A law which structures political institutions according to neutral principles is not subject to
equal protection attack even if it makes it more difficult for minorities to achieve favorable
legislation because it applies equally to every group. But if the political structuring is based on
racial considerations, it denies equal protection because it places a special burden on racial
minorities.
Although Initiative 350 is facially neutral, it clearly was aimed at racial busing. It restructures
the political process by requiring those who seek elimination of de facto school segregation to
seek relief from the state legislature or the statewide electorate. Persons seeking busing for
other reasons do not have such a high hurdle.
Dissent
A school is not required to implement a busing program for racial integration when there
is no constitutional violation. The majority holds that a local school district could adopt a
neighborhood school policy, but that a state cannot. This theory of a vested constitutional right
to local decision making is unprecedented.
Comments When you have a classification based on race, this is a scenario where strict scrutiny is
applied. But ordinarily when there is a disparate impact under strict scrutiny, you must have a
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showing of intent to discriminate. Walthall feels there should have been a showing of intent.
Strict Scrutiny and Suspect Classification: Lawful Resident Aliens
Classifications treating lawful resident aliens as different from citizens are said to be subject to strict
scrutiny, but the Court has recognized so many exceptions to this principle that in practice it means that
the only alienage classifications subject to strict scrutiny are those used by states, and then only with
respect to matters that do not implicate a states legitimate power to preserve the basic conception of a
political community.
* Rule: The Courts have said that legal alienage is a suspect category with respect to state and
locality designations.
Sugerman v. Dougall 1973
Facts The state of NY refused to accept aliens as civil servants, from menial labor jobs to policymaking positions. The exclusion did not extend to higher executive or elective positions,
however. Sugerman challenged the statute.
Issue May a state prohibit all aliens from all competitive state civil service positions?
Held No
Aliens are entitled to equal protection under the law.
The State claims that its generic classification based on alienate is justified because the identify
between a government and its citizens, and the need for undivided loyalty in civil servants. The
problem with this assertion is that the prohibition extends to jobs that have no relation to the
states interest in loyalty, yet does not cover high-level jobs where the states interest is greatest.
Equal protection requires greater precision than this.

Rule

When properly and carefully formulated, a state may adopt guidelines requiring citizenship as a
condition of employment for certain positions, especially those that include direct participation
in the creation, execution, or review of public policy. The statute challenged by P here is not
sufficiently precise. Thus, this goal is not narrowly tailored enough to accomplish this goal
because it applies to all civil servant jobs.
This court used strict scrutiny to look at alienage classifications employed by states.

Intermediate Scrutiny: Sex and Illegitimacy

Intermediate scrutiny:
Ends:
serve an important government objective
Means: must be substantially related to the achievement of those objectives
Early classifications based on sex used the rational basis test. See e.g.
Reed v. Reed 1971
Idaho law stipulated that men should be preferred to woman as court-appointed administrators of an
intestate descendants estate. The Court applied minimal scrutiny to the law but invalidated it as
irrational the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause
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despite the fact that the sex preference advanced the states objective of reducing the workload of
probate courts by eliminating contests between men and women over the administration of such estates.
The result, if anything said by the Court, hinted at a de facto higher level of scrutiny.
Frontiero v. Richardso 1973
Federal law permitted a male member of the armed services automatically to claim his wife as a
dependant, thus acquiring increased housing and medical benefits, but did not permit a female service
member to do so unless she could demonstrate that her husband was in fact dependant on her for over
half his support. The Court struck down the provision as a violation of equal protection but could not
muster a majority around any one standard of review. Four Justices, led by Justice Brennan, argued for
treating sex as a suspect classification, thus triggering strict scrutiny. To support this, conclusion,
Justice Brennan relied on a long and unfortunate history of sex discrimination and the fact that sex,
like race and national origin, is an immutable characteristic [that] frequently bears no relationship to
ability to perform or contribute to society. Four justices thought the provision violated equal
protection but were unwilling to declare that sex was a suspect classification. They did not specify
which standard of review they were employing but intimated that it was minimal scrutiny. Only Justice
Rehnquist dissented.
Generally, sex is like race:
.
Immutable
.
History of Discrimination
a.
Married women couldnt hold property
b.
Cannot vote
c.
Husband and wife are one and he is the one
.
Discrete and insular minority
However, footnote 4 says that they will apply strict scrutiny when there is a discrete and
insular minority. But, woman are not a discrete and insular minority, they are actually
the majority.
So, even though sex is immutable and there is a past history of discrimination, woman are not a
discrete and insular minority.
Craig v. Boren 1976
OK law prohibits the sale of nonintoxicating 3.2% beer to males under the age of 21 and to females
under the age of 18. The question to be decided was whether the denial to males 18-20 years of equal
protection. The Court applied intermediate scrutiny. To withstand constitutional challenge, previous
cases establish that classifications by gender must serve important governmental objectives and must be
substantially related to achievement of those objectives. The state identified traffic safety as an
important end. To support its means, the state used statistical evidence (0.18 women and 2.0 men were
arrested for drunk driving. The majority held that there was another 98% that are law abiding and this
2% is not much. The dissent on p. 771 pointed out that this number was 10 times that of women.
Rule: Intermediate scrutiny applies to gender classification.
Michael M. v. Superior Court of Senoma County 1981
CA had a statutory rape law where males can be guilty of statutory rape, but woman can never be guilty
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of having sex with underage males. The SC held that the statute did survive intermediate scrutiny
under this, and showed the statute serves important government objectives. The object was to prevent
teenage pregnancy and the court held that the means were substantially related because women have
concerns about having under age sex and the guy must have a disincentive. This probably would not
have survived strict scrutiny because the ends were not narrowly tailored enough to the ends.
Rostker v. Goldberg 1981
The question presented is whether the Military Selective Service Act violates [equal protection] in
authorizing the President to require the registration of males and not females. The ends are military
preparedness in case there was a war. The means are that women were not eligible for combat and no
need to draft women for these menial jobs. The Court used intermediate scrutiny and the statute
survived.
United States v. Virginia (VMI) 1996
VA supports a number of public colleges and universities and VMI was a male only school with a long
history and tradition. The State identified that VMI had a very harsh and very restricted educational
experience with hazing and physical hazing.
The State said there were two justifications for separation:
(1) diversity/benefits single education and
(2) VMIs adversative method could not be modified to include women. The Court used the
exceedingly persuasive justification for the action. The dissent argued that the court
should have used the intermediate scrutiny on sex which says that the ends must be an
important government objective and the means must be substantially related to achieving
this objective. Using this analysis, the dissent said the policy would be valid under
intermediate scrutiny. But, using the exceedingly persuasive justification, the court
held that this was invalid practice.
* Has the test moved from intermediate to strict scrutiny?
Reed and Frontero used minimal, Craig used intermediate and is VMI using something more towards
strict scrutiny? Walthall feels that the SC may be shifting to strict scrutiny and that in some
circumstances; the level of scrutiny used may depend on the judges.
(Possible exam question: Would a boys high school and a girls high school survive equal protection
under intermediate scrutiny after this case?)
Fundamental Rights: Strict Scrutiny Redux
In famous footnote 4, the Court indicated that when a statute deals with discrete and insular minority,
something more than minimal scrutiny may be called for when there is a fundamental right at issue.
Strict scrutiny called for by the existence of fundamental rights is separate and analytically distinct
from suspect classification.
For the purposes of strict scrutiny analysis, a fundamental right is:
.
An independently protected constitutional liberty or
Example: One independently guaranteed by constitutional provisions apart from the Equal
Protection Clause is the right of interstate migration.
- 49 -

It has been identified as fundamental for equal protection purposes even

though it
Is not independently protected.
Example: Rights which do not exist outside the Equal Protection Clause and therefore relies
entirely on that clause for its vindication. Examples include interferences with the right to vote.

Fundamental rights under substantive due process may not be a fundamental right under equal
protection.
If the classification burdens a fundamental right or a fundamental interest, the classifications will
be subjected to strict scrutiny regardless of the characteristics of the people who are burdened.
3 main areas of fundamental rights include:
.
The right to vote
.
The right to use the courts
.
The right to interstate migration.
.
Parental Rights (in civil litigation)
The Right to Vote
Reynolds v. Sims 1964 - Court held that mal-apportionment is basis for strict scrutiny
Facts Sims and others challenged the apportionment of the Alabama legislature, which was based on
the 1900 federal census and thus seriously discriminated against voters who lived in an area
where the population had grown disproportionately in the intervening years. The district court
ordered temporary reapportionment.
Issue Must a state apportion its legislative districts on the basis of population?
Held Yes
The right to vote is essential to a democratic society and is denied by abasement or dilution of a
citizens vote just as effectively as by wholly prohibiting the free exercise of the franchise. The
fundamental principle of representative government is one of equal representation for equal
numbers of people, regardless of race, sex, economic status, or place of residence within a state.
The EP clause guarantees the opportunity for equal protection by all voters in the election of
state legislators. Therefore, votes cannot be weighed differently on the basis of where the voters
happen to reside.
Each state district must contain as nearly an equal population as possible, although precision,
being impossible, is not required. Substantial equality of population must be the overriding
objective. States need not perpetually update their apportionment plans, but there must be a
reasonable plan for periodic readjustment.
So long as the divergences from a strict population standard are based on legitimate
considerations incident to the effectuation of a rational state policy, some deviations from the
equal protection principle are constitutionally permissible, but neither history alone, nor
economic or other sorts of group interests, are permissible factors in attempting to justify
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disparities from population based representation. But a state can rationally consider according
political subdivisions some independent representation in at least one body of the states
legislature, as long as the basic standard of equality of population among districts is
maintained.

Rule

There is not a suspect class triggering strict scrutiny, but there is a fundamental right involved
(not under substantive due process no history of voting equality) but equal protection voting is
very important.)
Mal-apportionment is basis for strict scrutiny.

Harper v. Virgina Board of Education 1966

The Court used strict scrutiny because of the fundamental interest involved in voting
Harper and other VA residents brought suit against the VA Board of Elections to have VAs poll tax
declared unconstitutional. The Court held that a state exacted poll tax as a condition for the exercise of
the right to vote was unconstitutional. Lines drawn by the affluence of the voter or by the payment of
any fee violate equal protection. Undoubtly, states may impose reasonable voter qualifications, but
these must pass careful scrutiny since the franchise is preservative of other basic civil and political
rights. Wealth or payment of a fee is an irrelevant factor in measuring a voters qualifications. The
right to vote is too fundamental to be conditioned on payment of tax. Dissent felt that the tax should be
upheld because they serve the compelling interest in weeding out those that dont care about policy.
Because the right to vote is a fundamental right, any classification defining the ability to exercise that
right will be reviewed under a strict scrutiny standard of review and must satisfy the dictates of EP
guarantee before the Court will uphold the measure as constitutional.
Davis v. Bandemer 1986 - Voting Gerrymandering
The complaintants were Indiana democrats. The state had a republican controlled state legislature,
which redrew the lines to minimize the number of democrats winning seats in the legislature. The issue
was first whether this claim was justifiable was it a political question? The SC said they did assert a
justiciable claim (but will be difficult to show that relief is granted), but the dissent said this was a
political left to the legislature. The Court said that an apportionment is only unconstitutional when the
plaintiff shows (1) intentional discrimination against an identifiable political group and (2) an actual
discriminatory effect on that group. The Court said The mere fact that a particular apportionment
scheme makes it more difficult for a particular group in a particular district to elect the representatives
of its choice does not render the scheme constitutionally infirm. A discriminatory effect can only be
found based on multiple elections, and on a showing not just of disproportional small
representation but also of strong indicia of lack of political power and the denial of fair
representation to the aggrieved group. Justice OConnor in her concurrence said that there is a self
correcting function in state politics and what will happen is that the dominant party will become too
ambitious and will eventually only have a minority.
Shaw v. Reno 1993
Racial Gerrymanders violate equal protection and if plaintiffs can show that the use of race was the
predominant factor in drawing the district lines, the districting scheme will be subject to strict scrutiny.
Case significant because allowed a COA for redistricting.
The Court held that if the plaintiffs can show that the districting scheme was so irrational on its
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face that it can only be understood as an effort to segregate voters into separate voting districts
because of their race, strict scrutiny would be triggered, and the districting struck down unless
it was shown the narrowly tailored to further a compelling government interest. Here the
majority seemed to focus on the shape of the district. The district at issue was strangely shaped and
non-compact. Because NCs African American population is relatively disperse, a long, narrow,
irregularly shaped district was the only way to create two districts that would be majority black in the
state, a goal that the legislature was will to achieve and the Voting rights act (allows changes to voting
districts which also functions to make sure blacks were not intimidated and could vote) may have
required. This district was 160 miles long, and in some places was only as wide as the interstate
highway.
Justice OConner delivered the opinion of the Court; she represented the color blind vote the fact that
this districting was done continues racial stereotypes and race as a decisive issue. (so, a COA is stated).
Souter in his dissent represents the other view that you must use race to address effectively the
problems of racial equality.
Shaw v. Hunt 1996
The original Shaw case came back to the Court, this time to decide whether the trial court had correctly
determined that North Carolinas redistricting plan was justified by sufficiently compelling state
interests. The Court reversed the trial court, finding that because neither the district shape nor racebased districting was required to conform to the Voting Rights Act, the state lacked a compelling
interest for its use of race.
The Right to Interstate Travel
We live in a federal system, one of the basic principles of which is that any American is free to travel
from state to state, and to change his state of residence or employment whenever he desires. This right
to travel freedom of interstate migration is not explicitly given by any one constitutional provision.
But the Court has treated it as fundamental. Consequently, whenever a state treats newly arrived
residents significantly less favorably than those who have lived in the state longer, strict equal
protection scrutiny may be triggered.
Shapiro v. Thompson 1969
This is the classic right to travel case. The Court invalidated the denial by two states and the District of
Colombia of welfare benefits to residents who had not resided in the jurisdiction for at least a year. By
requiring the one-year waiting period, the states were impairing the fundamental right of interstate
commerce movement. Furthermore, what was being denied to newly arrived residents were something
of extreme importance welfare aid upon which may depend the ability of families to obtain the very
means to subsist. Thus, the court applied strict scrutiny, requiring that the one-year waiting period to
be necessary to achievement of a compelling governmental interest. The states compelling state
interest was to preserve the welfare system of the state. The Court said this wasnt enough.

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Saenz v. Roe
The Court struck down welfare restrictions on benefits based on residency. The Court mentioned that
the benefit involved is of such significance to individuals that they are dealing with a fundamental right
to be tested by strict scrutiny.
Access to Courts / Parental Rights (in Civil litigation)
Classification based on wealth has never, by itself, been enough to trigger strict scrutiny. But where the
state imposes fees, which have the effect of preventing the poor from gaining access to a significant
constitutionally protected right, the Court has sometimes been willing to apply strict scrutiny.
Criminal Litigation
Griffen v. Illinois 1956
The Court held that the state must provide indigent criminal defendants with a trial transcript, if such a
transcript was necessary for effect appellate review. This case was decided on equal protection and due
process grounds. Equal protection due to lack of access to the courts for indigents and due process
because the plaintiff alleged that this was a fundamental right and it was not because the constitution
does not grant a fundamental right to an appeal. The Court held that a criminal defendant had the right
to the assistance of council on appeal, as least if: (1) this was the first appeal taken in the case and (2)
the appeal was granted as a matter of right (not judicial discretion) to all persons.
Civil Litigation
Generally, equal protection analysis does not apply to civil litigation, but some interests are so
significant that the state cannot withhold access to the appellate courts based on purchasing transcripts,
etc. Courts have been less willing to find that state-imposed economic obstacles to civil justice system
violate equal protection. In those cases, in which the Court has found equal protection to be violated,
the interest at stake was a constitutionally independent fundamental liberty interest.
Rule: So where the proceeding is nominally civil, an indigent has no general right to fee relief.
Thus, actions for bankruptcy and for review of welfare terminations fall into this general no
equal protection right to fee relief category. But an indigent does have an equal protection right
to feed relief in three situations within the family law area:
()
Actions for divorce
()
Determinations of paternity
()
Termination of parental rights
Action for divorce
Boddie v. Connecticut - 1971
The Court held that indigents could not be precluded from obtaining a divorce because they cannot pay
a filing fee. The parties seeking the divorce were welfare recipients who could not pay the $80 filing
fee. The SC agreed that denial of access to divorce was a violation of the plaintiffs due process rights.
Two factors found by the Court to be basic to this due process conclusion is that
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(1) marriage occupies a fundamental place in our societys basic scheme of values and
(2) the state has a monopoly on the means for dissolving this relationship.
Thus, access to divorce is quite different from use of the civil courts for the resolution of private
disputes, in the latter situation; other nonjudicial means of resolution are available.
Courts are particularly willing to grant fee relief to indigents in family law contexts:
Paternity suits
Little v. Streater 1981
The Court held on due process grounds, that an indigent defendant in a paternity action was entitled to
free blood-grouping tests. The Court stressed the unique exculpatory power of such tests, the States
prominent role in the litigation, and the quasi-criminal nature of the paternity proceeding.
Termination of Parental Rights
MLB v. SLJ 1996
The Rehnquist Court held that where a childs father successfully sued to have the childs mothers
paternal rights terminated to that the child could be adopted by the fathers wife, the state had to pay for
a trial transcript to be used by the mother on appeal. In that case, the decision seemed to turn more on
the quasi-criminal nature of the proceeding than on the fact that it involved family-law matters. But
the Court characterized the interests of parents in their relationship with their children as being
fundamental. This was not a due process issue because there is no fundamental right to an appeal.
But, this is an equal protection problem because the state cannot discriminate.
In making its decision, the Court said:
Choices about marriage, family life, and the upbringing of children are among associational rights this
Court has ranked as of basic importance in our society, rights sheltered by the 14th Amendment.
Thus, the Court applied strict scrutiny and found that the state could not do this.
Education is not a fundamental right to be protected by strict scrutiny under Equal Protection
grounds.
San Antonio Independent School District v. Rodriguez 1973
Plaintiff claimed that Texas system of financing public education violated equal protection, because it
relied principally on local property taxes. Although there were other state and federal funds which
remained available to each school district, districts with high property tax base per pupil consistently
spent more on education than those with a low tax base were able to do. The plaintiff tried to argue that
this was subject to strict scrutiny, but the court said no. The court recognized its value to society, but
said that it doesnt require strict scrutiny. The Court stated that education is neither explicitly nor
implicitly guaranteed. Additionally, Ds system was implemented to extend public education, not to
interfere with any rights. Finally, courts ought not interfere with state fiscal policies if not necessary. 2
rules to take from this case:
.
Education is not a fundamental right requiring strict scrutiny
.
Put a stop to activists trying to develop other strict scrutiny categories based on other
government functions.

Free Expression of Ideas (tested as MC)

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Overview of Free Expression

9888. Rationales of Free Expression
The basic divide in free speech is between government regulations that regulate speech on the basis of
its content and those that regulate speech on a content-neutral basis. A law prohibiting all political
speech in the public streets regulates the speech on the basis of its content. A law prohibiting all speech
in the public streets that is amplified by bull forms in a content brutal regulation under the law it
doesnt matter what is said but how the speech is delivered.
The First Amendment states:
Congress shall make no law . . . abridging the freedom of speech, or of the press, or the right of the
people to peaceably assemble and petition the government for a redress of grievances.
Approaches to free expression of ideas include:
1
Democracy assumes that we govern ourselves. Free expression is indispensable to the
unfettered exchange of ideas necessary for self-governance. The expression of competing
interest is mandatory. This is known as the Meiklejohn Free Speech approach.
2
Free speech is necessary to determine the truth. Free market of ideas. John Milton said Let
truth and falsehood grapple, whoever knew Truth put to the worst, a free and open encounter?
Milton stated [C]onflict [with] error is essential to a clear apprehension [of] truth. . . the
conflicting doctrines to a clear apprehension [of] truth.
3
Societal Tolerance and Self Restraint The practice of free expression cultivates the virtues of
tolerance and self-restraint. Promotes moral virtues by participating in dialogue that may open
up self for growth.
4
Personal Autonomy The purpose of freedom of expression derives from the widely accepted
premise [that] the proper end of man is the realization of his character and potentialities as a
human being. This is the singular view of the 1 st amendment. Express yourself and realize
your personalities.
9889. Distinction Between Content-Based Regulation and Content-Neutral Regulation
A.
Content Based - subject to strict scrutiny
Content-based regulations are generally presumed to be void. These regulations are
subject to strict scrutiny, which, of course, places on the government the burden of
proving that the law is necessary to achieve some compelling government interest.
B.

Content Neutral rational basis

These regulations are indifferent to the subject matter or viewpoint expressed. They
typically regulate speech based on the time, place and manner in which it occurs (ex.
no amplified speech in the park between 10pm and 7am). By contrast, content-neutral
regulations those that do not aim at the suppression of ideas are generally subject to
intermediate scrutiny. Such regulations are generally valid if they are reasonable, well
suited to the achievement of a significant government interest, and leave open ample
alternative channels of communication.
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Examples:
1.
Content Neutral Regulation says no bumper stickers
2.
Content Based Regulation No political bumper stickers
3.
Viewpoint Based No bumper stickers demeaning Congress
United States v. Playboy Entertainment Group, Inc.2000
Facts Congress adopted a statute, which required cable operators providing sexual oriented shows to
fully block, scramble, or to limit their hours of viewing when children wouldnt watch. There
was another mechanism called target blocking that could have been used to allow individual
consumers to decide when and what channels can be blocked.
Issue Does this regulation violate the 1st amendment?
Held This is content-based regulation so it is subject to strict scrutiny. The compelling state interest
is to protect families from having sexually oriented programming available to children without
consent of their parents. However, the means chosen were not the least restrictive when given
the other options such as target blocking.
Content Based Regulation of Speech
Some categories of speech receive no constitutional protection, and others receive only qualified
protection. The principal categories of unprotected speech are obscenity, child pornography, speech that
incites the immediate commission of a crime, and so-called frightening words.
Content-based regulation is generally permissible within a category of unprotected (or limited
protection) speech, so long as the basis for such regulation is consistent with the reason the category of
speech receives no (or limited) constitutional protection.
The rational denying free speech protection to some categories of speech is that they are so far removed
from the core purposes of free expression and simultaneously present such a significant danger to the
community, that these categories can safely be considered outside the purview of free expression
altogether or only deserving of limited protection.

Incitement of Immediate Crime

o Clear and Present Danger
Under this category, speech could be punished, as an attempt to commit an illegal act
if the speech created a clear and present danger that the illegal act would come
about.

Schenck v. United States - 1919

Facts In the 1917 Espionage Act, Congress made it a crime, inter alia, to willfully cause or attempt to
cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of
the United States or to willfully obstruct the recruiting or enlistment service of the United
States. The defendants were not charged with violating the act, but rather with conspiring to
violate it. The defendants had sent two draftees a document opposing the draft, calling it
despotism, and urging the draftees, do not submit to intimidation. But the document did not
explicitly advocate illegal resistance to the draft; it merely advocated peaceful measures, such as
petitioning for the repeal of the Conscription Act.
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Held The Court unanimously found that the defendants could constitutionally be convicted of
conspiracy to violate the statute.
Holmes wrote that the defendants might of been protected in time of peace. But the issue was
whether the words used are used in such circumstances and are of such a nature as to create a
clear and present danger that they will bring about the substantive evils that Congress has a right
to prevent.
Here the Court said that this was a clear and present danger of interfering with the draft. The
Court emphasized that this doctrine emphasized the likelihood of consequence.
Frohwerk v. United States - 1919
The Court upheld an Espionage Act conviction for conspiracy to cause
insubordination, disloyalty, mutiny, or refusal of duty in the armed services.
Abrams v. United States - 1919
Facts Involved sympathizers with Russian revolution who objected to sending troops to Russia to
fight with Red Army. They issued a leaflet urging workers not to make bullets, which would be
used not only against Germans but Russians as well.
Held The Court said this was not protected speech because it involved a clear and present danger
because they were trying to interfere with the war effort against Germany.
Homes Dissent: felt there was no clear and present danger because there was no intent. Rather
the only intent was to help Russia and stop American intervention against a particular
government, - not to impede the war effort.
It is only clear and present danger of immediate evil or intent to bring it about that warrants
Congress in setting a limit to the expression of opinion where private rights are not concerned
Thus, Holmes felt that the mere distribution of a pamphlet isnt enough, but rather American
foreign policy should be imperiled. Need more fact pasted analysis.
[But] when men have realized that time has upset many frightening faiths, they may come to
believe [that] the ultimate good desired is better reached by free trade in ideas that the best test
of truth is the power of the thought to get itself accepted in the competition of the market, and
that truth is the only ground upon which their wishes safely can be carried out.
* Holmes is indicating that the test should be whether people feel threatened.
Masses Publishing Co. v. Pattent - 1917
Judge Learned Hand enjoined the NY postmaster from refusing to mail the revolutionary journal The
Masses. For speech inciting lawless conduct to lose constitutional protection, Hand thought it must
constitute direct advocacy of illegal behavior, the speaker must expressly incite law breaking rather
than simply advocating dangerous ideas p. 861 quote.
1919, 1920 can be summed up with the feelings that Learned Hand said that there must be intent to
cause a clear and present danger, while Holmes felt that clear and present danger is determined by
consequence.
1920 1930 there was a shift and prosecutions were brought under criminal syndicalism acts, which
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were for communists and European radicals. The objective was to criminalize violent overthrows of
the government. These were state statutes. The 1st amendment was held to state statutes because under
the 14th amendment, freedom of speech was a fundamental right, so under selective incorporation, this
applies.
Criminal Anarchy and Communists: Clear and Not So Present Danger
As WWI faded and the US succumbed to the Red Scare, states began to enforce criminal anarchy or
criminal syndicalism statutes, which typically punished the advocacy of violent overthrow of
government.
Gitlow v. New York 1925 Court moved from clear and present danger to reasonable test
Facts The Court construed the NY criminal anarchy statute, which banned advocating orally or in
writing the overthrow of a government by assassination or other violent means. The defendant,
a socialist, was involved in the publication of the Left-wing manifesto, which advocated
establishment of a dictatorship of the proletariat through mass strikes and other revolutionary
mass action.
Held The court held that there was no showing at trial that the publication had posed any present
danger of governmental overthrow or other substantive evil. But the majority upheld the
conviction and deferred to the legislature because the legislature had made a finding that certain
types of language posed a risk that substantive evils would result (why they passed the statute).
It was not open to the court to dispute the legislatures judgment.
Sanford in the majority opinion deferred to the legislature and stated:
A single revolutionary spark may kindle a fire that smoldering for a time, may burst into a
sweeping and destructive conflagration. It cannot be said that the state is acting unreasonably
when it seeks to extinguish the spark without waiting until it has enkindled the flame or blazed
into the conflagration. It cannot reasonably be required to defer the adoption of measures for its
own peace and safety until the revolutionary utterances head to actual disturbances of the public
peace or imminent and immediate danger of its own destruction but it may, in the exercise of its
judgment, suppress the threatened danger in its incipiency.
This is the mere rationality test. Is it a legitimate end to protect itself from overthrow and is the
statute a means to reasonably protect that end? Also refereed to the bad tendency test where just
a small spark may result in a conflagration.
Dissent - Holmes
The criterion sanctioned by the full Court in Schenck applies. It is manifest
that there was no present danger of an attempt to overthrow the government by force on
the part of the admittedly small minority who shared the defendants views This view
requires an imminent consequence.
Whitney v. California 1927- The Court used a synthesis of the clear and present danger test and the
reasonableness test.
Facts The CA criminal syndicalism act forbade the knowing membership in any organization
advocating the use of force of violence to effect political change. D was convicted even though
she did not agree with the Communist partys advocacy of violent means of change. (but didnt
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deny being a member)

Held Majority upheld the conviction, believing that the legislatures conclusion that mere knowing
membership in an organization advocating criminal syndicalism was substantively dangerous
must be given more weight.
The Court didnt reject the clear and present danger test, but the Court said that when a danger is so
immense, the possibility of overthrow by violence, the government can taken more restrictive test.
Here, because they are inciting violent overthrow, the consequence is greater, but if they were
promoting jaywalking as a means of incitement, the consequences wouldnt be as great.
Then, concern shifted from WWI to communism and Congress adopted the Smith Act, which
prohibited advocacy or attempted advocacy of overthrow of the government by force of violence.
Dennis v. United States - 1951
The Court upheld convictions of the chief leaders of the American communist party for violating the
Smith Act, which prohibited the knowing advocacy, or attempted advocacy, of the duty, necessity,
desirability, or propriety of overthrowing [any] government on the United States by force of violence.
A four-justice plurality led by Justice Vinson concluded that speech could not be prohibited as posing a
clear and present danger of producing a substantive evil whenever the gravity of the evil discounted
by its improbability, justifies such invasion of free speech as is necessary to avoid the danger. Vinson
stated that the government need not wait until the putsch is about to be executed before acting.
Yates v. United States - 1957
The Court overturned the Smith Act convictions of several lesser Communists because there was no
proof that the defendants advocated action for overthrow of government by force and violence.
[Those] to whom the advocacy is addressed must be urged to do something, now or in the future, rather
than merely to believe in something.
The Contemporary Standard for Incitement
Brandenburg v. Ohio 1969
Facts D was a leader of an Ohio KKK group. He was charged with violating Ohios criminal
syndicalism statute, which forbade the advocacy of violence or crime as a means of
accomplishing industrial or political reform.
Held The Court struck down the statute. The Court implemented a new rule for the clear and present
danger doctrine. Speech advocating the use of force or crime could only be proscribed
where two conditions are satisfied: (1) the advocacy is directed to inciting or producing
imminent lawless action and (2) the advocacy is also likely to incite or produce such
action
Thus, this replaces the clear and present danger test for incitement, but Walthall feels this echoes
this test. It should be noted that Brandenburg overruled Whitney.
Obscenity and Pornography
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Obscenity, like defamation and fighting words, was listed in Chaplinsky as being a type of speech
unprotected by the First Amendment.
1.

Obscenity

Reasons why obscene material is not protected under the 1st Amendment:
o Avoiding offense
o Incitement of a crime
o Preservation of Morals (note Kingsley)
o Remote connection to the core purposes of free speech.
There is not a welfounded theory on why obscenity is outside the protection of the 14th amendment.
Regina v. Hicklin 1868
In this case, the Court judged obscenity by the effect of isolated passages upon the most susceptible
persons.
Roth v. United States - 1957
This is the first case to directly face the issue of whether obscene materials are protected by the First
Amendment.
The Court held that obscenity is not within the area of constitutionally protected speech or press. The
Court held that at the time of adoption of the 14th amendment, all states had laws against profanity and
the Court inferred that the 1st amendment didnt mean to include obscenity. The Courts definition of
obscenity was whether to the average person, applying contemporary community standards, the
dominant theme of the material taken as a whole appeals to prurient interest. Prurient means having
the tendency to excite lustful thoughts.
Memoirs v. Mass. 1966
The Roth test proved unworkable. The Court implemented the following test:
[T]hree elements must coalesce: it must be established that (a) the dominant theme of
the material taken as a whole appeals to a prurient interest in sex (b) the material is
patently offensive because it affronts contemporary community standards relating to
the description or representation of sexual matters, and (c) the material is utterly
without redeeming social value.
Justice Stewart in Jacobellis v. Ohio said I know it when I see it
Stanley v. Georgia - 1969
A state made it a crime to possess obscene material even in your own home. The Court said that this
statute went too far. Whatever may be the power of the state to control public dissemination of ideas
inimical to public morality, it cannot constitutionally premise legislation on the desirability of
controlling a persons private thoughts.
* Even if obscene under Miller, people can still posses in home because the state cannot regulate
thoughts just because they are obscene.
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Kingsley Pictures International Corp. v. Regents - 1959

The Court struck down a NY law banning films depicting sexual immorality as applied to Lady
Chatterleys lover. NY could not ban films because they advocate an idea that adultery is improper.
The 1st Amendments basic guarantee is of freedom to advocate ideas. The Court said that the state
cannot legislate viewpoints by installing a viewpoint, which differs from other accepted viewpoints.
Rule: VIEW POINT REGULATION IS NOT PERMISSIBLE
Miller v. California - 1973 - NEW VIEWPOINT
Miller was convicted under a CA statute of knowingly distributing obscene matter to unwilling
recipients. The Statue incorporated the Memoirs test for obscenity. The Court reiterated the basic
teaching of Roth that obscene material isnt protected. This case also did away with the Memoirs and
Roth tests and created a new test to determine if something is obscene. The test is as follows:
1.
Whether the average person, applying contemporary community standards,
would find that the work, taken as a whole, appeals to a prurient interest;
2.
Whether the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by applicable state law; and
3.
Whether the work, taken as a whole, lacks serious literary, artistic, political, or
scientific value.
Applying this test, the Court found that the conviction should not be upheld.
We (a) affirm that obscene material is not protected by the first amendment; (b) hold
that such material can be regulated by the states, subject to the specific safeguards
enunciated above, without a showing that the material is utterly without redeeming
social value; and (c) hold that obscenity is to be determined by applying contemporary
community standards and not national standards.
Paris Adult Theatre I v. Slaton - 1973
Slaton, a state district attorney, filed civil complaints against Paris Adult Theatre I seeking to enjoin
exhibition of films claimed to be obscene. The films were available only to consenting adults. The
trial judge dismissed the complaint, but the Georgia Supreme Court reversed, holding that the films
were without First Amendment protection. The Court held that a state may prohibit commercial
exhibition of obscene films to consenting adults, because obscene, pornographic films do not
acquire constitutional immunity from state regulation merely because they are shown to consenting
adults only. The right of privacy may preclude regulation of the use of obscene materials within the
home (Stanley) but you do not have an implicit privacy right to watch pornos in a place of public
accommodation, thus the state can regulate.
Jenkins v. Georgia - 1974
A GA grand jury concluded that Carnal Knowledge, involving sexual evolution of two men, the Court
said that nudity alone is not enough to make the film obscene. This result was a paradox because it
seems to say that local standards govern on prurient appeal and patent offensiveness so long as those
standards are not more prudish that some minimum constitutional threshold of prurience and
offensiveness.
2.

Pornography
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New York v. Ferber - 1982

Ferber produced and distributed a film that portrayed a child engaging in various sexual activity. Under
Miller, the film wasnt obscene. The Court held that a state may ban the distribution of materials
showing children engaged in sexual conduct, even though the material is not legally obscene. The
Court relied on the states compelling surpassingly important interest in preventing the sexual
exploitation and abuse of children who are photographed for the production of such materials. The
Court said:
1. The film required sexual exploitation of children and this is how the state tried to
suppress the activity.
2. The distribution of films may be related to sexual abuse of children. It may
encourage pedophiles to do this.
3. This ban would dry up the market.
4. There is only a deminimus value at the most they could have hired adult actors to
portray the children.
Rule: A state can adopt a statute that criminalizes production and distribution of porno material.
If given an exam question, go through this analysis to see if the state has these
important interests, etc.
Subordination of Women p. 895
American Booksellers Assn v. Hudnut - 1986
Facts An Indianapolis statute defined pornography as a practice that discriminates against women. It
defined porno to include graphic sexually explicit subordination of women that also includes
the presentation of women as sexual objects who enjoy pain or humiliation or who experience
sexual pleasure in being raped etc . . . The 7th Cir. said this was porno.
Held The Court of Appeals struck down this statute as not content neutral. Under this ordinance,
speech that subordinates women is forbidden. This is thought control.
3.
Fighting Words and Hate Speech
Fighting words do not receive 1st amendment protection. These are words that are likely to make the
person to whom they are addressed commit an act of violence.
Chaplinsky v. New York - 1942
Facts The D called the city marshal a GD racketeer and a damned fascist, and then got in a fight with
him on the sidewalk. He was convicted.
Held The SC believed that the defendants words were indeed ones, which would likely provoke the
average person to retaliate. The Court said that frightening words were not protected by the 1 st
amendment and defined these words as those, which by their very utterance inflict injury or
tend to incite an immediate breach of the peace. Such words are no essential part of any
exposition of ideas, and are of slight social value as to step to truth that any benefit that may be
derived from them is clearly outweighed by the social interest of order and morality.
Cantwell v. Connecticu t-1940
Facts A Jehovahs witness who played a record that attacked all organized religions as instruments of
Satan, and singled out Catholism as evil. He was convicted.
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Held The Court reversed the conviction. The Court said there was no assault or threatening of bodily
harm or personal abuse.
The Court has now narrowed the frightening words doctrine:
12340. Narrowed the scope of the category injury by the very utterance has been abandoned. the
fact that someone hurts your feelings doesnt take it out of the protection of the 1 st
amendment.
12341. Tendency to cause breach of peace speech doesnt lose its protection unless made with
immediacy to get a violent response
12342. If the offensive words are used merely about a group you belong to and not yourself
personally, then you are likely not to respond with violence.
* Significance that the frightening words doctrine has been narrowed and is now a slender exception.
General rule is laid out in Chaplinsky, but narrowed in Cantwell
Beauharnais v. Illinois - 1952
Statements made against group that would incite violence in individual may not be frightening words.
The Class of statements that are unprotected because they are libelous was even extended to include
those that defame groups as well as individuals. This is probably not the law today due to New York
Times v. Sullivan. This may be subject to challenge under the over breadth doctrine.
Collin v. Smith - 1978
The city of Skokie adopted an ordinance to prevent a planned march by the American Nazi party.
Although the wording of this ordinance was similar to the group libel law upheld in Beauharnais, the
Court of Appeals concluded that Beauharnais was a dubious precedent. The Court invalidated the
ordinance and said that only if offensive actions are directed to individuals and not a group with the
ordinance be upheld.
Arguments for regulating hate speech
First, hate speech is akin to defamation. Second, hate speech is a form of frightening words the
verbal equivalent of a slap in the face. Third, hate speech may be seen as a category of speech that has
such little connection to the core purposes of free speech and which is sufficiently pernicious that it
should be recognized as a new category of unprotected speech. Finally, hate speech might violate equal
protection, which is founded on anti-subordination.
Arguments against regulation of hate speech
The principal constitutional argument against hate speech regulation is that such regulation is nakedly
content based and is incapable of being bounded sufficiently to avoid serious over breadth problems.
The principal unconstitutional arguments are that hate speech regulation is either (1) unhelpful or (2)
downright harmful to the interests of the minorities it seeks to benefit. Other reasons include that Dr.
King demonstrated that one could escape social subordination through speech. Another reason is
grounded is psychological theory.
RAV v. City of Saint Paul - 1992
Facts The Ds made homemade crosses and burned them in the yard of a black family. They were
prosecuted under the St. Pauls crime ordinance, which prohibited burning crosses and
swastikas. Ds contended this ordinance violated the First amendment in two respects: (1) it
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was substantially overbroad and (2) it was impermissibly content-based.

Held The Court unanimously agreed that the ordinance violated the first amendment.
The Court was split as to why:
12856. Justice Scalia, Rehnquist, Kennedy, Souter and Thomas said that the law was
impermissibly content based, because it prohibits otherwise permitted speech solely on
the basis of the subjects the speech addresses. Not viewpoint neutral. We have held
long held, for example, that nonverbal expressive activity can be banned because of the
action it entails, but not because of the ideas it expresses so that burning a flag in
violation of an ordinance against outdoor fires could be punishable, whereas burning a
flag in violation of an ordinance against dishonoring the flag is not.
Fighting words are thus analogous to a noisy sound truck: [both] can be used to
convey an idea, but neither has, in and of itself, a claim upon the First
Amendment. As with the sound truck, however, so also with fighting words: The
government may not regulate use based on hostility or favoritism towards the
underlying message expressed.
12857. Justice White, Blackmun, OConner and Stevens said that the ordinance is overbroad
because it criminalizes expression protected by the First Amendment as well as
unprotected expression.
Rule

Hate legislation must be viewpoint neutral.

Wisconsin v. Mitchell - 1993

Facts D, a black teenage, was convicted of aggravated battery, a crime that in WI ordinarily carries a
maximum sentence of two years in prison. There was strong evidence he selected his victim
based on race. Under a WI statute, the term sentence for aggravated battery was increased to
seven years based on Ds race based selection of the victim.
Held The Court upheld the statute. D argued that the statute punished his beliefs (race based) and
was viewpoint oriented.
The Court rejected this argument. The ordinance struck down in RAV was based on expression
whereas here, the enhanced penalty was aimed at conduct, which is completely unprotected by
the first amendment. Thus, it did not fail the non-view point oriented test under RAV since it
was aimed at conduct rather than expression. The Court also rejected the defendants argument
of over breadth.
Summary
Chaplinsky said that fighting words are not protected. In RAV, the Court said that statutes
addressing offensive words must be viewpoint neutral and not overbroad.
Virginia v. Black (2003)
Opinion is rooted in the meaning of the symbol. Cross burning is intimidating.
(1) True threats are not protected
(2) Still considered a breach of the peace. It is an intentional utterance of words
designed to instill fear in others and in context, is likely to do so.
In a narrow context, this is considered harmful to society and the govt can regulate it
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4.

Offensive Speech

Cohen v. California - 1971

Facts D wore a jacket bearing the words F*** the Draft in a Los Angeles courthouse corridor. He
was convicted of violating a state statute that prohibited disturbing the peace by offensive
conduct.
Held The Court said the state may not prohibit as offensive conduct public use of an offensive
word.
The Court looked to see if the word was a fighting word, obscene, and a clear and
present danger.
13940. The Court used the Chaplinsky test of fighting words, which include those which by
their very utterance inflict injury or tend to incite an immediate breach of the
peace. The Court concluded that this was not language that would result in mayhem
breaking out. Since it did not tend to incite violence, it was not fighting words. Also, it
was not directed to the viewer. While the four-letter word displayed by Cohen in
relation to the draft is not uncommonly employed in a personally provocative fashion, in
this instance it was clearly not directed to the person of the hearer. No individual
actually or likely to be present could reasonably have regarded the words on appellants
jacket as a direct personal insult. Nor do we have an instance of the exercise of the
States police power to prevent a speaker from intentionally provoking a given group to
hostile reaction
13941. The Court used Miller to determine if the phrase was obscene. The Court determined
that it was to obscene.
Whether the average person, applying contemporary community standards, would find that the
work, taken as a whole, appeals to a prurient interest; Whether the work depicts or describes, in
a patently offensive way, sexual conduct specifically defined by applicable state law; and
Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
The Court said that the jacket was not in any way erotic.
3.
The Court applied the clear and present danger test and said that no one would regard
this as an insult. The Court said the fighting words must be accompanied by a clear and
present danger to warrant protection. . There is no showing that anyone who say Cohen
was in fact violently aroused or that Cohen intended such a result.
The Court stated while the particular four-letter word being litigated here is perhaps more
distasteful than most others of its genre, it is nevertheless often true that one mans vulgarity is
anothers lyric. Indeed, we think it is largely because governmental officials cannot make
principled distinctions in this area that the constitution leaves matters of taste and style so
largely to the individual.
Rule: When offensive speech isnt found to be offensive or fighting words it continues to be protected.
5.

Hostile Audiences

Terminiello v. Chicago - 1949

D made a race-baiting speech, he is a right-winger and there was a large crowd of left-wingers outside.
He called the left-wingers communists and snakes, while the left-wingers outside called them Nazis. D
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urged his audiences to stand up to them. The police were concerned about riots and arrested them. The
SC overturned the conviction and reasoned that speech, which stirs the audience to anger or invites
dispute is protected under the First Amendment and that, in fact, the most valuable expression may
well be that which, because it is provocative and challenging, produces these emotions. Therefore, the
statute was overbroad on its face. The court held that the danger of violence was not clear and present
danger of serious substantive evil.
Feiner v. New York - 1951
D was addressing a street meeting and attracted a crowd, but there was no disorder. One man told the
police officers that if they did not stop D, he would. The police asked the D to stop speaking and
arrested him when he refused to obey. The D was convicted of disorderly conduct and appeals. The
Court held that the police may act to suppress speech that in their judgment is causing a breach of the
peace. The Court applied the clear and present danger doctrine and this was met. Black in his dissent
said that the speaker should have been protected and the hostile audience was not to be allowed to
sensor the speech. Rule: Fighting words must be accompanied by a clear and present danger of
hostility to lose protection of the 1st amendment.
6.
Captive Audiences
FCC v. Pacifica - 1978
Facts A NY radio station owned by Pacifica broadcast a monologue by George Carlin that contained
several indecent words. A listener complained to the FCC, which issued a declaratory order
finding the monologue indecent as broadcast and therefore subject to regulation. This is a
captive audience situation.
Held The federal government has power to regulate a radio broadcast that is indecent but not obscene.
The Court focused on several factors:
14400. Was the language obscene under Roth and Miller? No it is not erotic, but is
designed to make people laugh.
14401. This wasnt fighting words, so the court didnt use this analysis.
14402. The Court said that the broadcast radio medium is intrusive and there is not a
mechanism for separating them out geographically or by the age of the hearer in
contrast to buying a record or being a bouncer at the club. You dont know that it
is offensive until you hear it. So, the court said that there is more leeway to
regulate.
14403. Because the FCC has a limited resource parceled out by the government, there is
more of a sense that it is held out in public trust and thus is subject to regulation.
14404. The Court also noted that the only punishment to radio station was that a letter
was put in their file, unlike other defendants in Terminello and Fiener who were
put in jail.
Concurrence Focused on the difficulty in separating the audience and there is a competing public
interest in protecting kids from material that is obscene to children.
Hypo: How about accessibility on the Internet of patently offensive or material not obscene to adults
but to kids?
An initiative attempting to deal with this is the CDA of 1936, which prohibits the transition of indecent
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messages, which included obscene messages. It also prohibited transmission of messages that were
patently offensive to persons under 18 years old and it was accompanied by two affirmative defenses
that you wouldnt be convicted if you had taken precautions to restricts the access to minors or to take
credit cards, etc. (Obscenity is included, but goes beyond obscene only applying where recipient is
under 18). Issue is this an enforceable restriction on speech or does it run afoul of 1 st amendment?
How could it be amended or re-written to have a better chance of surviving the 1st amendment scrutiny.
Indecency and the New Mass Media
Reno v. American Civil Liberties Union - 1997
Facts The Communications Decency Act made it a crime to use a telecommunications device to
transmit any communication, which is obscene or indecent while knowing that the recipient is
under 18 years old. It also made it a crime to use any interactive computer service to display in
a manner available to a person under 18, any communication that uses patently offensive
language or images.
Held This was unanimously struck down. The state argued Pacifica and said that the prohibition was
at all times and not just at night, and the radio stations in Pacifica were always treated in trust
for all so this was more strict. The Court rejected this argument. The Court contrasted this with
a zoning analogy of movie theaters and showing your id to get in. The Court said this was too
difficult. Rather, the Court said that the internet could screen for age through the use of a credit
card or by requiring a person adult id #.
Congress responded to Reno by the application of two statutes to prevent access to minors of
indecent material. The legislature enacted COPA, which had some regulations as Reno statute,
but just applied it to vendors and congress also said that they could spend money to support
libraries and would condition future federal contribution upon the adopting of screening
mechanisms of computer screening. This is being decided in the SC today.
Significance of this case:
Broad protection of the Internet the Internet seems to be afforded the same very broad First
Amendment protection as books and newspapers.
Protection of the Rights of Adults - Some regulation probably allowable.
Ashcroft v. FCC (2002)
Virtual child porn by computer drawings & morphing adults into kids. Held: This is ok.
Under Ferber rationaleno support for banning this porn b/c no actual children used

But Ferber still permits prosecution for things that involve children.

Thus, if no child actors then no harm

Govt also argues that the state also has an interest b/c it may excite pedophiles or give them the idea
that this is permissible or enables pedophiles to convince kids that this is ok behavior
Kennedy: No: there are other ways to lure kids.
In order to allow this test, must pass the Brandenburg test (imminency of lawless behavior)
Also, no statistics to show that watching this leads to this behavior
Ct is skeptical of other claims of harm
BALANCING TESTfalls on 1st Amendment liberty
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Defamation and Other Civility Torts

Before Sullivan, fighting words and obscenity both fell into the category of unprotected speech.
New York Times Co. v. Sullivan - 1964 - Defamation and Public Officials
Sullivan was the commissioner of Montgomery. The NY Times carried a full-page advertisement that
included several false statements about the repressive conduct of the police department. Sullivans
name wasnt mentioned, but it could be concluded who he was. The Court held that a state may not
allow a public official to recover for damages for a defamatory falsehood relating to his official conduct
without proof of malice.
The Court held that defamatory statements, even if untrue, may be protected by the 1 st
amendment if made about public official unless the official can show actual malice. Actual malice
requires a showing with respect to the factual misstatements that: (1) they knew the statements
were false or (2) acted in reckless disregard that the statements were false. Significance was that
Sullivan re-wrote the defamation law so that it was tilted towards protection of freedom of speech in
contrast to other laws aimed at protecting the individual.
Curtis Publishing Co. v. Butts, AP v. Walker - 1967
Expanded Sullivan to include defamation of public figures as well as of public officials. Butts was the
GA football coach who was accused in the paper of fixing games for spread. Butts sued and the Court
said that Sullivan applied and he must show that the newspaper acted with actual malice. Walker was a
retired general who thrust himself in issues supposedly led to a revolt against segregation. The Court
said that a public figure was someone who must have some voluntary thrusting into the public.
General rule: A statement is protected if made about public figures or public officials and in
circumstances involving a public issue, but statements are not protected if made with a showing
of malice. Gertz said that involvement in a public issue, by itself, does not bring a private
individual within the class covered by the Sullivan rule.
Gertz v. Welch - 1974
Gertz was an attorney who represented the family of a victim murdered by a police officer. Welch, the
publisher of a magazine, printed an article, concededly untrue, that discredited Ps motives. P sued.
The Court held that a member of the press, who published defamatory falsehoods about a person who is
neither a public official nor a public figure, but who is involved in a public issue, cannot claim a
constitutional privilege against liability for injuries. Private individuals do not have the access to the
media to counteract falsehoods that public figures and officials may have. Thus, Sullivan doesnt
extend to private individuals. The permissible recovery for defamation against a broadcaster, etc. is for
actual injury only, unless a showing of actual malice. States may not permit recovery for presumed or
punitive damages in the absence of proof of actual malice.
Hypo: See judicial cannons handout. No candidate can publish false information on a candidate or
may be liable. See judicial cannons handout to answer. Must include actual malice wording in the
definition such as knowingly false and made with reckless disregard. Must make the cannon
conform to Sullivan.
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Commercial Speech
Advertising speech that invites a commercial transaction, receives second-class constitutional
protection.
Valentine v. Chrestensen - 1942
The free speech guarantee, said the Court, places no restraint on government as respects purely
commercial advertising.
Virginia Board of Pharmacy v. Virginia Citizens Consumer Council - 1976
A state statute making it unprofessional conduct for a pharmacist to advertise prescription drug
prices. The VA board had a rational justification on ban of advertising. They said that if drug stores
would advertise the price of drugs, consumers, would be led to use pharmacist offering the lowest
prices, and this may drive pharmacists out of business. The Court said that this ban violated the First
Amendment. The Court held that wholly commercial speech was protected by the First Amendment.
In reaching this decision, the Court focused on societys interest in the free flow of commercial
information. The Court said that VA can set standards for pharmacists, but they cannot keep the public
in the dark on the price of prescription drugs. In his dissent, Rehnquist predicted what was happening
now such as alcohol and cigarette advertising.
Rule: The Court recognized that commercial speech enjoys some form of commercial protection.

Central Hudsen Gas Electric Corp. v. Public Service Commission - 1980

Facts The NYPSC banned all promotional advertising by electric utilities. The stated purpose was to
conserve energy during the energy crises. This is a ban on content advertising.
Held The Court introduced a four-part test for determining whether a given regulation abridges
the First Amendment.
15428. Is the speech protected by the First Amendment?
The Court said that all commercial speech receives at least partial protection except for:
jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj
Speech that is misleading
kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk
Speech that concerns an unlawful activity
Speech that falls into one of these categories may be regulated by the government.
15429.
Is the asserted governmental interest substantial?
The government interest doesnt have to be compelling, just substantial. If not, the
regulation will be struck down.
15430. Does the regulation directly advance the governmental interest asserted?
There must be a link between the regulation and the governments interest.
15431. Is the regulation more extensive than necessary to serve that interest?
Is the regulation not more extensive than necessary to serve the substantial interest and
is this the least restrictive means possible to achieve this goal.
This test is intermediate scrutiny.
The Court said that though 1 3 were satisfied, this regulation failed the fourth prong because it was
more extensive than necessary to achieve the goal of energy conservation
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Dissent
Did not like the fourth prong, felt that any suppression of speech is invalid unless
deceptive, and this wasnt deceptive, so it shouldnt be suppressed.
Rehnquist felt that the Court was taking the Lochner approach substituting the Courts view for the
legislatures view. New Yorks order here [is] more akin to an economic regulation to which virtually
complete deference should be accorded by this Court.
This test seems to be Held up, except for the fourth prong.
SUNY v. Fox - 1989
The Court said to not take the fourth prong of the test too literally. SUNY had a regulation barring
commercial enterprises on campus, which included barring Tupperware parties on campus. The issue
was whether this suppression of commercial speech was the least restrictive means of protecting these
interests. The Court said that it doesnt have to be the absolutely least restrictive means, just that there
must be a good fit between the regulation the interest sought to be advanced. [What our decisions
require is a fit between the legislatures ends and the means chosen to accomplish those ends [that] is
not necessarily perfect, but reasonable, that represents not necessarily the single best disposition but
one whose scope is not in proportion to the interest served
Ohralik v. Ohio State Bar - 1978
Lawyer Advertising Private Financial Gain
The Court upheld Ohraliks suspension from law practice for his direct solicitation of two young
accident victims when they were at and came home from the hospital. This case prevents attorneys
from soliciting clients who had just been injured in an accident. The Court held that the state may
forbid in-person solicitation for pecuniary gain.
In re Primus 1978
Lawyer Advertising Public Interest
An ACLU lawyer solicited the representation of a woman who had been sterilized in order to receive
public medical assistance. The Court ruled that a state must prove actual harm before it could impose
discipline on an attorney soliciting a client on beheld of a public interest case rather than for pecuniary
gain.
Posadas de Puerto Rico v. Tourism Co. - 1986
Commercial Advertising and Regulation of the Activity Solicited - The Greater includes the
lesser theory
The Court upheld a PR law prohibiting legal gambling casinos from advertising to PR residents.
Rehnquist declared: The greater power to completely ban casino gambling necessarily includes the
lesser power to ban advertising of casino gambling.
* The Court has held that states can regulate the truthfulness of advertising or what an advertiser is
required to say. Ex. requiring cigarette packages to contain information on health effects of tobacco.
Edge Broadcasting - 1993
The Court upheld a NC ban on the advertising the lotteries within the state. Since NC did not have a
lottery, and the state has the power to regulate advertising of lotteries. The Court held this was
narrowly tailored to achieve the states substantial interest in fostering state gambling policies.
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44 Liquor mart v. Rhode Island 1996

Suggests that a majority of the present Court would not longer endorse this greater includes lesser
theory
Facts RI statute forbade the advertising of liquor prices. The state defended the statute on the grounds
that price advertising would lead to lower prices, and lower prices would lead to increased
consumption of alcohol, and this would be at odds with the states interest in temperance.
Held The Court said that this violated the 1st Amendment all nine justices agreed, but had different
reasons for doing so.
16460.
Four justices explicitly said that the Posadas greater includes the lesser theory should be
overhauled
16461.
The Other four suggested that they didnt like the theory much. They said that strict
scrutiny should be used. But, as a result, Hudsen is still used.
The state also cannot satisfy the requirement that its restriction on speech be no more
extensive than necessary. It is perfectly obvious that alternative forms of regulation that would
not involve any restriction on speech would be more likely to achieve the States goal of
promoting temperance. Higher prices can be maintained by direct regulation or by increased
taxation. Per capita purchases could be limited as is the case with prescription drugs.
* The Court is using the Hudsen test, but note that other cases have stated not to apply the
fourth prong as rigidly.
Content Neutral Regulations of Speech
When the government regulates speech without reference to its content, a form of intermediate scrutiny
generally applies.
When the regulation is content neutral rather than content based, it is possible to regulate the time,
place and manner of the speech. Use OBrien if the speech is content-neutral, use strict scrutiny if it is
an attempt to suppress expression. This is determined by the facts and circumstances.
Time, Place and Manner of Speech
United States v. OBrien 1968 - Time, place and manner
Facts OBrien and others burned their draft cards in public, which violated a federal law. The Ds
claimed that their action was intended to influence others to adopt their anti-war beliefs. Ds
were convicted, but the court of appeals held that the statute was unconstitutional abridgement
of freedom of speech.
Issue When a conduct contains both speech and nonspeech elements, may an important governmental
interest in regulating the non-speech element justify incidental limitations on First Amendment
Freedoms?
Held Yes. The Court said when an act contains speech and non-speech elements, then if it is an
important government interest and the statute is rationally related to the interest, that even
though there are incidental limitations, this is okay.
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The Court said that a government regulation is justified if:

18000. It is within constitutional authority
18001. It furthers an important governmental interest
18002. The interest is unrelated to the suppression of freedom of expression
18003. The incidental restriction on First Amendment freedoms is no greater than is
essential to the furtherance of that interest.
The governments draft card laws meet this test. Thus, the defendant may be properly prosecuted for
his illegal activity.
Ward v. Rock Against Racism - 1989
The City adopted regulation with respect to concerts in central park. They required the sound
equipment and engineer be supplied by the city because of sound complaints. The Court
applied the test from OBrien:
18516.
Regulation must be justified by power of federal government
18517.
Furthers an important/substantial government interest
18518.
The restriction on 1st amendment freedom is no greater than is essential to further
that interest.
(The regulation of time, place and manner must not only be serving a significant government
interest, but must be narrowly tailored to serve that interest. However, this narrowly tailored
requirement does not mean that the state must chose the least restrictive or least intrusive
means of achieving its objectives. Instead, the state must merely avoid choosing means that
are substantially broader than necessary to achieve the governments interest.)
Symbolic Speech
Symbolic cases are merely a variety of content-neutral regulation of speech. In every case, the
government regulates conduct and by doing so, burdens expression that is clearly communicated by
conduct.
OBrien
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.
If the government interest isnt unrelated to the suppression of speech, strict scrutiny applies.
Texas v. Johnson - 1989
Facts Texas had a law that prohibited desecration of the flag. (Speech by conduct).
Held If the regulation comes within the OBrien test, it s protected and if it is not, then the Court must
use the strict scrutiny test and it is unlikely it will be upheld. Look at the prongs of the test, if it
is content neutral and serves a government interest other than suppressing freedom of
expression, then may have a chance of validity under the test.
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Texas argued that the statute served other purposes such as (1) controlling the peace because observers
may be mad if they see flag burning (2) burning the flag tends to diminish it as an emblem of out
nationhood.
Despite these interest, the Court pointed out that Texas was suppressing freedom of expression. So the
Court used strict scrutiny and struck down the statute.
* Federal Flag burning statute struck down in 1989.
Secondary Effects Doctrine
The essence of the secondary effects doctrine is that governments may regulate speech (even by
apparent reference to its content) if its purpose for doing so is wholly unrelated to the content of the
speech but is instead designed to ameliorate some phenomenon closely associated with speech but not
produced by the content of the speech. See Young v. American Mini Theatres where the city said they
were concerned with the effects adult theaters may have on the community, so they dispersed the
theatres in order to break up the effects.
Young v. American Mini-Theaters - 1976
Facts Ordinance required theaters specializing in adult movies to be geographically dispersed from
each other and from adult bookstores. The city defended the ordinance on the grounds that it
was merely a zoning law, which grew out of the tendency of red-light districts to have high
crime rates and low property values.
Held The Court found that this ordinance did not violate the 1 st amendment. The Court indicated that
some speech was less deserving of protection than others.

Rule

Moreover, event though we recognize that the First Amendment will not tolerate the total
suppression of erotic materials that have some arguably artistic value, it is manifest that
societys interest in protecting this type of expression is of a wholly, different, and lesser,
magnitude that [its] interest in untrammeled political [debate]. Even though the First
Amendment protects [non-obscene erotic] communications from total suppression, we hold that
the State may legitimately use the content of these materials as the basis for placing them in a
different classification from other motion pictures.
Court indicated that there are certain types of expression, while not directly suppressible on the
grounds of their content, are inherently less valuable and may therefore be regulated more
extensively than speech closer to the core of first amendment values, such as political speech.

City of Renton v. Playtime Theatres Inc. - 1986

The plurality of the Court upheld a municipal zoning ordinance that prohibited
Adult movie theatres from locating in about 94% of the citys land. The City defended the ordinance
with the secondary effects doctrine. The Court said this is another kind of time, place and manner
restriction and not suppression of expression. The Court said it could be upheld as long as it was
designed to serve a substantial governmental interest and allows for reasonable alternative avenues of
communication.
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City of Erie v. Paps - 2000

Facts The City of Erie passed an ordinance that required live dancers to wear at least pasties and a Gstring. The city claimed it was not attacking the expressive content of nude live entertainment,
but rather its secondary effects, such as violence and sexual harassment, intoxication,
prostitution and the spread of sexually transmitted disease.
Held This issue before the Court was whether the requirement of minimal cover corresponds to
toning it down, or does the regulation constitute a regulation that is content based which is
meant to not restrict time and manner, but to restrict and suppress the message.
The Court upheld the ordinance. The Court found that the secondary effects doctrine applied (the Court
discussed American Mini Theatres and Renton) and therefore looked at the OBrien test. The Court
found that even though the regulation to non-speech impact is merely incidental is okay as long as there
was not goal of the city council to express suppression.
4 justices concurred. Scalia said that nude dancing wasnt protected speech, but rather, the court was
trying to clean up Erie. The traditional power of government to foster food morals, and the
acceptability of the traditional judgment (if Erie wishes to endorse) that nude public dancing itself is
immoral, have not been repealed by the First Amendment. (Regulate good morals)
Dissent
Even if it is time and place and manner is only an incidental affect, the regulation was a
viewpoint of the city. It wasn't time, place and manner viewpoint neutral, but they are really concerned
with nude dancing. Thus, strict scrutiny should have applied.
Regulation of Speech when the government is both sovereign and proprietor
Public Forum
When may the public speak on its property under government control and when it may not.
There are three categories of public forum
19544.
Unlimited public forum
Open to all subjects and speakers to the fullest degree protected by the First Amendment.
Some are defined by tradition.
19545.
Limited Public Forum
Open to those subjects and speakers that the government wishes to permit, provided that
the limiting criteria are to viewpoint-based or otherwise offensive to some other
constitutional guarantee (e.g. a public forum limited only to those of a govern race is
presumptive equal protection violation). These are places or facilities created by the
government for speaking, but the government may provide some limitation on the
speech.
See Heffron v. Intl Society for Krishna Consciousness (1981)
The Court upheld a MI State Fair rule prohibiting the sale or distribution of merchandise
or literature, except from booths available for rent in a non-discriminatory way. The
Court found this regulation viewpoint neutral and concluded that it served the Fairs
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significant interest in protecting the safety and convenience of the fairgoers. The Rule
was well suited to this end and it was quite improbably there were alternative means of
accomplishing this goal.
19546.
Non-Public Forum
Not a public forum at all and may be closed to all or some speech so long as the closure
is reasonable.
See Adderly v. Florida (1966)
The Court sustained the tresspass convictions of demonstrators blocking a jail entrance
normally used only by sheriffs deputies: The State, no less than a private owner or
property, has power to preserve property under its control for the use of which it is
lawful dedicated. The part of the jail grounds on which the demonstration occurred
was reserved for jail uses and was not open to large public gatherings. It was neither a
traditional or designated public forum.
Perry Education Assn v. Perry Local Educators Assn - 1983
SETS FORTH TESTS TO BE USED IN EACH TYPE OF FORUMN SITUATION.
Facts In a contest of two collective bargaining unions, one won and became the representatives and
one lost. The one that won negotiated with the school and had access to the schools internal
mailbox system. Also, they negotiated to where no other union would have access to these
mailboxes. The loser sued and said this violated their First Amendment rights.
Held This issue was what kind of forum is this?
The Court upheld this rule. The fact that the officials teachers union, as well as a number of
other outside organizations were permitted to use the mail system was not enough to convert it
to a public forum.
20060.
Unlimited public forum
The government cant prohibit any type of communicative activity. It can adopt content
neutral regulations as to the time, place and manner of the regulation as long as it is not
intended to suppress regulation and is narrowly tailored.
20061.
Limited public forum
The state can enforce certain exclusions created from a limited purpose and no other issues are
to be discussed as long as the regulation is reasonable and is not an effort to suppress
expression. Reasonable time, place and manner regulations are permissible and content-based
prohibition must be narrowly drawn to effectuate a compelling state interest.
20062.
Non-public forum
The government has no constitutional obligation to let public use the property.
The Court concluded that the mailboxes were a non-public forum and the exclusion of the labor group
wasnt a violation of the 1st Amendment.
Public Education
Much of the speech that occurs in public education is highly regulated. Some is content based.

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Tinker v. Des Moines School District - 1969

Facts Students came to school wearing black armbands, opposing the war. The school had a
regulation against this.
Held The Court said that this regulation wasnt enforceable, because it wasnt disruptive and didnt
interfere with the operation of the school, but rather just sent a message.
* Emmanuels it is clear that school authorities have strong and valid interest in maintaining school
discipline and carrying out their educational mission; pursuit of these goals will sometimes entitle the
authorities to regulate speech in a way that would not be permissible outside of the school context.
Bethel School District v. Fraser - 1986
Facts A high school student was addressing a high school assembly and gave a lewd speech
(containing sexual metaphors). The students were subject to disciplinary action.
Held The Court upheld the disciplinary actions over the students claims that they violated freedom of
expression. The undoubted freedom to advocate unpopular and controversial issues in schools
and classrooms must be balanced against societys countervailing interest in teaching students
the boundaries of socially appropriate behavior.
When balanced this way, the schools interest in prohibiting vulgar and lewd speech
outweighed whatever First Amendment interests the students might have had, especially since
the penalties were unrelated to any political viewpoint. The Court additionally stated that
the First Amendment does not prevent school officials from determining that to permit a vulgar
and lewd speech would undermine the schools basic educational mission.
Hazelwood School District v. Kuhlmeier - 1988
Facts A school journalism class newspaper was going to run a story about parental divorce and
student pregnancy. The principle was concerned that the story would have an adverse impact on
students and fathers mentioned in the stories would have no way to protect themselves.
Held The Court found that the school newspaper was not an unlimited public forum. We do not
hold that educations do not offend the First Amendment by exercising editorial control over the
style and content of student speech in school-sponsored expressive activities so long as their
actions are reasonably related to legitimate pedagogical concerns. This content based
regulated was permitted.
* Under Hazelwood, the administrator will almost always be able to show that the censorship
was reasonably related to some legitimate pedagogical interest.
Healy v. James - 1972
This case involved the validity of a public universitys refusal to recognize Students for a Democratic
Society as a campus organization because it was a radical group advocating violence and disruption.
The Court remanded the case, instructing lower courts the mere expression of [such] repugnant views
would not justify the denial of first amendment rights.
Public Employment
Private employers are constitutionally free to impose speech restrictions on their employees as a
condition of employment. The current position for public employees is that the government may limit a
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public employees speech on issues of public concern when the limitation is reasonably necessary to
maintain efficiency in the performance of the public task for which the employee is engaged. The
governments action escapes any constitutional scrutiny if the employees speech does not involve
matters of public concern, and the Court should weigh heavily the employers interest in good working
relationships and disruption of the office.
* This further shows that the government may not deny a benefit because a person exercises a
constitutional right. Shows that a person doesnt have a right to public employment, but do have a
fundamental right in constitutional guarantees.
Pickering v. Board of Education - 1968
The Court ruled that a public school violated the First Amendment in dismissing a teacher for writing a
letter to a local newspaper criticizing the way school officials had spent money raised on prior bond
issues.
Rule: As long as her rights against free speech do not interfere with the performance of her duties and
32364.
The matter against which she is speaking is of public concern, her speech is
protected.
Connick v. Myers - 1983
Cases concerned a lawyer who was transferred from the DAs office. She complained about the transfer
and created a questionnaire consisting of questions that were inherently critical of the work of a person
serving as DA. She was fired and raised a First Amendment violation. The Court applied Pickering
and said the issues she raised involved private importance and not public importance. Thus, the Court
upheld the firing, because this was direct insubordination.
Emmanuels said that factors to consider when determining whether this interferes with a working
relationship are:
30036.
Whether the specific circumstances involve a great need for confidentiality
30037.
Whether a working relationship could be undermined by criticizing a close
superior
30038.
Whether the criticism is harmful, false, and relates to daily operations of which
only a few are known, thus making rebuttal difficult
30039.
Whether the employees duties and workplace are impeded thereby and
30040.
Whether the employees fitness could be questioned because the statements made
were without foundation.
Public Sponsorship of Speech
A government is free to pay for speech it agrees with and to refuse to pay for speech with which it
disagrees, but a government cannot withhold some unrelated benefit from private speakers who happen
to use their own resources to say things the government dislikes.
Speiser v. Randall - 1958
The Court held that CAs denial of a property tax exemption to veterans who refused to state that they
did not favor the forcible overthrow of the government was an unconstitutional penalty imposed on free
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expression.
FCC v. League of Women Voters - 1984
The Court struck down a portion of a federal law forbidding any public radio or television station
receiving federal grants from engaging in editorializing.
* These two cases indicate a subsidy v. Penalty the government wasnt acting as the sponsor
of the speech, but was regulating what others had to say by withholding benefits.
Rust v. Sullivan - 1991
Title X of the Health and Human services act provides federal money for family planning. The
Department of Health Services said that if you are a government that receives federal funding, you must
explain choices for family planning, except you cannot give any information regarding abortions. Issue
was whether such a restriction imposed on speech to agencies that receive federal funding violates the
First Amendment? The Court said that the government may do this because the government was
subsidizing a particular viewpoint, but wasnt penalizing that viewpoint.
Legal Services Corp. v. Velasquez (2001)
Held unconstitutional a Congressionally imposed restriction that forbade LSC-funded attorneys from
challenging the legality or constitutionality of existing welfare laws, distinguishing Rust on grounds
that the LSC funds were not being disbursed in order to transmit a governmental message but rather to
facilitate private speech and because indigent LSC clients would not have access to alternate counsel
who could raise these issues.
Rosenberger v. Rector and Visitors of the University of Virginia - 1995
UVA used mandatory student fees to pay the printing costs of a variety of student publications but
refused to pay the printing costs for a Christian newspaper. UVA argued that (1) its refusal to pay Wide
Awakes printing costs was no penalty on speech but a permissible refusal to subsidize speech and (2)
the refusal was justified as necessary to avoid violation of the First Amendments establishment of
religion clause. The Court rejected these arguments. It does not follow.... that viewpoint-based
restrictions are proper when the University does not itself speak or subsidize transmittal of a message it
favors but instead, expends funds to encourage a diversity of views from private speakers. The
distinction between the Universitys own favored message and the private speech of students is evident
[here]. The University declares that the student groups [it funds] are not the Universitys agents, are not
subject to its control, and are not its responsibility. Having offered to pay the [printing costs] on behalf
of private speakers who convey their own messages, the University may not silence the expression of
selected viewpoints.
Overbreadth
A statute is overbroad if, in addition to proscribing activities which may constitutionally be forbidden, it
also sweeps within its coverage speech or conduct which is protected by the guarantees of free speech
and free association.
Statutes are often found to be overbroad based on standing and a statute is found to be void on its face.
Rule: The regulation is tested as being invalid on its face. People whose speech is unprotected
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have standing to challenge under the overbroad doctrine.

Reasons for over breadth doctrine:
31064. Avoid chilling effect/ Self censorship
The existence of the statute is that the statute may have a chilling effect on free speech
because some people whose speech the statute could not constitutionally reach might simply
be intimidated into not exercising their right to speak.
31065. Selective enforcement
A highly overbroad statute is highly vulnerable to selective enforcement by the authorities. It
might result in the violation of the constitutional right of one person and not of another.
* To avoid the implications of an overbroad statute, re-write the statute to make it more narrow
and content neutral.
Broadrick v. Oklahoma - 1973
Facts Plaintiff challenged a statute under the over breadth doctrine. The statute prohibited civil
servants from engaging in certain political activities.
Issue Is the statute overbroad?
Held No

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The Court said this statute did not call for over breadth treatment because it was primarily
directed at conduct and not at pure speech.

Rule

The statute was not substantially overbroad since it applied to a substantial spectrum of
conduct that could be constitutionally subject to state regulation.
This case signifies that courts are reluctant to use this doctrine because it is a meat ax rather
than a scalpel.
Look to see if it can be applied in a constitutionally permissive way.
Hypo: Suppose you have a regulation that says that first amendment activities within the
central terminal area at LAX are unprotected. This is overbroad because it covers incitement,
obscenity but also covers the whole range of speech that is protected (such as asking a person at
an information desk when the last plane arrives.). The statute is overbroad because it covers all
first amendment activities. If this were enforced, no one in the LA airport would say anything.
There would be a chilling effect.

Ashcroft v. Free Speech Coalition - 2002

Facts The government implemented the Child Porno Act in 1996 which extends the federal protection
against child porn which:
9060. Appears to be
9061. Morphed pictures
9062. Advertised in a manner that conveys an impression that it portrayed a minor engaged in
explicit sexual activity
Plaintiff claimed this was a violation of the First Amendment.
Issue Is this a violation of the First Amendment?
Held Yes
The Court found the statute invalid on its face based on the over breadth doctrine. The Court
found the wording appears to be and advertised to be overbroad. Appears to be is
overbroad because it includes adults that look young, but arent. The Court also said that it
covers material that may have artistic, literary, or scientific value (while distasteful to some, it is
a fact of life). Advertised is overbroad because it gets people who not only handled the
material, but also to anyone who had it at all.
The Court examined the precedents:
9564. Miller
Test:
i.
Material must appeal to a prurient interest (must be exotic)
ii.
Offensive in light of community standards
iii.
It must lack serious literary, artistic, political or scientific value
Analysis
The Court pointed out that just because something is offensive, it isnt
necessarily obscene.
Under this test, the regulation isnt invalidated under Miller because it may have
literary, artistic value to some. The Court said that hits could include a

painting that appears to be a minor engaging in sexual activity, could also

include a scene from portrayal of Romeo and Juliet.
9565. Ferber
This case held that child porno. materials, even if not obscene could nevertheless be prohibited
without contravention of the 1st amendment. Here, the materials involved children themselves
and held that children themselves may be harmed by distribution and the regulation may cause a
chilling effect of abuse if the court banned this (it was intrinsically related to child abuse).
Thus, even if not obscene, the state had a sufficiently compelling interest in protecting kids.
The Court said that if this could be done throughout use of actors who appeared to be young
maybe okay. Thus, this case left a question as to whether virtual child porn is okay.
Analysis
Ferber doesnt invalidate this statute. The critical thing in Ferber was to protect
underage actors. This statute deals with the situation where actual kids are portrayed.
The morphed picture was not at issue, what was at issue was the appears to be and
advertising. Ferber did not touch on this because the present situation doesnt involve
child actors. They may have been 19-years old that looked young.
Dissent
muster.

Court could have construed the statute to a narrow application to pass constitutional

Courts are generally reluctant to use the over breadth doctrine. The Solicitor general used the over
breadth doctrine in an attempt to extend Ferber and obscenity to this by making comparisons to Ferber,
so he was trying to carve out a new category of speech. In doing so, he could have made a different
argument of a more conservative nature such as applying this statute to what is constitutional rather
than deciding a new constitutional avenue.
When the SC tells Congress that a statute is overbroad, Congress can do two things:
22652. Forget it
22653. Narrow it
Suggestions to narrow the statute include:
i. Eliminate possession and make this only apply to distribution
ii. Have a statute that says you are outlawing material from material that is criminally prohibited
iii. Could lower the age to which the material is proscribed. (ex. 18 --> 12)
General Rule: Prior restraint such as licensing before speaking is almost always invalid.
Forsyth
The Court found this was invalid because it tended to cost more to put on a parade or expression, which
was disagreeable to most.

Free Expression and Political Process (tested as MC)

Buckley v. Vaeo - 1976
Facts The Federal Election Campaign Act of 1971contained the following provisions:

23168.
The Act limitation on individual political contributions to $1000 to any single candidate
per election (with a corollary $25,000 limit on aggregate contributions by any one individual in
any year)
23169.
Established limitations on expenditures, which restricted how much a candidate could
spend. (How much a candidate may spend of their own money).
23170.
If a person took money from the government for campaigning, they must agree to
expenditure limitations.
Issue Does this act violate the 1st amendment?
Held Yes and No
Provisions 1 and 3 were constitutional, but provision 2 wasnt because the Court said that these
expenditures were part of a conduct, which is speech.

Rule

The Court basically held that the contributions themselves were regulate(able) and do not have
first amendment protection, but that expenditure were a form of speech. Expenditures are a
form of the candidates expression of views, which is the core of the First Amendment. The
Court stated, Interest in equality of speech was not only insufficient but inimical to the First
Amendment.
The government can regulate contributions but not expenditures. The regulation of
expenditures are subject to strict scrutiny.

Loopholes to the Campaign financing regime:

23684. Contributions to an entity other than candidate (partys) that then ran ads favoring
candidates, but they didnt expressly say vote for that candidate.
2.
Issue ads to an independent entity.
Bi-partisan campaign finance reform act:
This act addresses these areas by placing a limit on contributions to national parties (addresses
loopholes). It provided a lengthy definition on when issue ads become campaign ads. The act stated
that you couldnt regulate the ads themselves, but regulate the ads for the particular candidate. The
constitutionality of this act is being reviewed today. The NRA and others are suing contended this is a
violation of freedom of speech. Walthall feels that issue ads are most vulnerable to constitutional
challenge because it may be viewpoint oriented.
Kennedy, Thomas, Rehnquist --> dissent in Buckly
while OConner was the swing vote.

First Amendment 2 Clauses Protecting the Freedom of Religion (tested as MC)

1. Establishment Clause
This clause prohibits any law respecting an establishment of religion. The main
purpose of the Establishment Clause is to prevent government from endorsing or
supporting religion.
Generally, the government shall make no establishment of religion. Historically, there
have been different readings. One reading is to prevent congress from establishing a
national religion. Then, formal religions were abandoned in every state.
Would a public sponsored class studying transcendental meditation violate the

Establishment Clause?
The Establishment clause has the effect of eliminating financial and coerced activity in
religious associations.

1. Free Exercise Clause

This clause bars any law prohibiting the free exercise of religion. The main purpose
of the Free Exercise Clause is to prevent government from outlawing or seriously
burdening a persons pursuit of whatever religion. This clause flatly forbids the
outlawing of any religious belief.
Both the clauses have been incorporated into the 14th Amendments due process clause and
therefore apply with equal force to the federal government and the states.
Both the religion clauses are intended to overlap and work together, but they often conflict with
each other.
Establishment----------1----------2----------3----------4----------5----------Free Exercise
Zone of impermissible accommodation
Zone of required accommodation
The two sides of the argument are the strict Jefferson separationists with their wall between church and
state and the accomodationists.
The Establishment Clause
Purpose: to protect religion from state corruption and to protect the state from religious incursions.
Emmanuels identified some of the major types of government actions that violate the
establishment clause:
No official church
No coercion
Punishment for beliefs
No preference
No participation
Everson v. Board of Education 1947 - Applied the Establishment Clause to the states
In NJ, a local community had authorized local school districts to pay transportation costs for
them to go to schools (both public and private religious). All the transportation would do is to
carry the children to the front door of the school, with no involvement. A taxpayer brought an
action to challenge this practice based on the Establishment Clause. Justice Black said that as
long as the law was neutral to both believers and non-believers, there was no violation of the
establishment clause. The Court said that the school must pay for agonistics and Christians as
well. The Court said that relevant factors include whether the state was actively involved in
promoting the religious faith. (Walthall noted that but for the government buying the kids
tokens to travel to the schools, no one would go. But the Court said that since it was neutral,
there was no violation.)
Rule: Must be neutral to all faiths
Lemon v. Kurtzman, 1970
The Original Lemon Test: used to determine if a state action violates the Establishment Clause:

24200. It must have a secular legislative purpose

24201. Its principal or primary effect must be neutral
24202. It must not foster an excessive government entanglement with religion.
Mueller v. Allen, 1983
MN plan allowed state taxpayers to claim a tax deduction for various expenses incurred in
educating their children, expenses for tuition, books and transportation incurred in sending
children to any elementary or secondary school were the major deductible items. Over 90%
attended religious schools. The Court upheld the deduction because it was neutral and available
to parents of all kids. Rehnquist delivering the majority opinion stated:
1. The deduction was neutral it was available to all parents, including those with children
in public and sectarian private schools.
2. The relationship was strictly between the state and parents- aid was given to parents, not
directly to the parochial schools, thus preventing any imprimatur of state approval
from being conferred on any particular religion.
3. The Court felt there was an important secular purpose because parents paid tuition,
which lessened the burden on public schools. Thus, it was improving public schools by
subsidizing attendance of private schools.
The Endorsement Test Lynch v. Donnelly 1984
Where the court found that a nativity scene mixed in with a seasonal display of Christmas
decorations (which included an explanation of Kwanzaa and a Menorah *did it?) funded by the
city and the merchants association was not a violation of the Establishment Clause. The court
referenced the Lemon test. We are satisfied that the city has a secular purpose for including the
kresh. They also found that there was no excessive entanglement. In reaching their
conclusion, the court looked at the history of the recognition of religion as significant to the
culture. Cited In God We Trust, and the pledge of allegiance.
The Government may not intend to send a message of endorsement or disapproval
of religion.
The objective meaning of the governments statement in the community can not
have the effect of endorsing or disapproving of religion.
Dissent Recognition of one religion will provoke other faiths to want inclusion and will result
in excessive entanglement.
OConnors concurrence introduces the endorsement test. She said that the display is ok as long
as the display does not represent an endorsement of religion. An example would be state
sponsored museums that display works of art with religious significance or symbols. OConnor
develops the endorsement test from the secular purpose prong and the neutral effect prong of
Lemon.
Supplement case p. 207
This case involves the pledge of allegiance and the phrase One nation under God. The requirement
of elementary school children to recite the pledge was challenged as a violation of the establishment
clause. The Ninth Circuit used the coercion and endorsement concepts along with the Lemon test to
find that there was a violation under the effects prong. The SC reversed. The case was brought by the
father of a child, who was the non-custodial parent and therefore lacked standing. As a result, the

question is still undecided by the SC.

Release Time Cases introduced idea of coercion
McCollum 1948
Involved issue of release time at school where kids could go to church related classes. Violated
the establishment clause.
Zorach 1958?
Involved voluntary release time also, but was down the street and not in the same building. The
court determined that since the school did not provide the facility for the religious instruction, it did not
violate the establishment clause.
Prayer in School
Engel v. Wiseman
Involved voluntary official prayer in school. Court ruled it a violation of the First Amendment.
Schempp v.
Involved reading of the Bible without comment. Was a violation of the establishment clause
because the court found no secular purposes and it had the effect of advancing religion. PreLemon.
***The Moment of silence passed the Lemon Test, but Alabama screwed it up the legislature in
Wallace v. Jaffree amended the statute to read moment of statute or moment of prayer.
Therefore, the court noted that the purpose was to bring prayer into the school and found that
violated the First Amendment. Tested under Lemon, there is an explicit sectarian purpose by
the legislature. Brings up the dichotomy between endorsement and coercion. In Wallace there
was a major presence of endorsement by the state.
Evolution in School
Darrow evolution case. Tenn. SC ended it on procedural matters.
AK case p. 1175 the Court struck down a statute that prohibited the teaching of evolution as a
violation of the establishment clause.
The pendulum switched then to Edwards v. Aguilar, where schools sought to teach creationism as
well as evolution. Turned on the first prong of Lemon. The court found the secular purpose of
academic freedom did not pass the smell test and that it was simply a way to get creationism and
religion into the schools. In his dissent, Scalia points out that it is impossible to determine a
legislators real purpose and whether it is secular.
Good News Club Resembles Regents Virginia p. 1040 n. 2 Limited Public Forum context.
The Coercion Test Lee v. Weisman 1992
In Weisman, a school prayer led by a school official was found to violate the establishment
clause even though the prayer was non-denominational and the school event was voluntary.
Unlike the principles of separation of church and state, coercion of religious orthodoxy involves
government preference of one set of religious beliefs over another. The Court emphasized that,
for the non-believer, the innocuous, nonsectarian prayer may appear to be an exercise of the

machinery of the State to enforce a religious orthodoxy rather than a communal expression of
shared values. Ct. found that there was psychological coercion because the students would feel
compelled to participate. They also found government sponsorship in that the school
recommended the type of prayer.
The Modified Lemon Test - Agostini v. Felton 1997 GET FACTS
Reformulated the Lemon test. Kept the First secular purpose prong, but divided the second
Neutral Effects prong in to three components and combined the third prong into the components
of the second Lemon prong:
1.
Secular Purpose
2.
Neutral Effects
a. No government endorsements
b. No classification by reference to religion
c. No excessive entanglements
School Vouchers
Muller v Allen 1983
The Court upheld a Minn. law that allowed residents to deduct up to $700 of school related
expenses from attending public or private schools. The Court noted that primary effect prong
of Lemon was satisfied by facial neutrality, even if the law indirectly benefited religious
institutions.
Zelman v. Simmons Harris Supp. - court upheld vouchers
Clevelands school voucher program did not violate the Establishment Clause.
1. There was a secular purpose
2. Since private persons decided whether to use the voucher and what type of school the voucher
went to, there were neutral effects. The court looked at the amount of money that actually went
to religion.
Dissent: Pointed out that 90% of the funds went to religious schools. Thought that the religious
substructure of the religious schools would be eroded.
Free Exercise Clause
This clause bars any law prohibiting the free exercise of religion. The main purpose of the
Free Exercise Clause is to prevent government from outlawing or seriously burdening a persons
pursuit of whatever religion. This clause flatly forbids the outlawing of any religious belief.
Since religious beliefs are protected by free speech, the free exercise clause provides limited
protection to religious practices.
Reynolds v. U.S. - 1878 Conduct v. Belief
The federal governments right to make bigamy a crime in federal territories was upheld here
over a Free Exercise objection of a Mormon who claimed that polygamy was his religious duty.
The Court say the practice of religiously-related polygamy as no different from the practice of
religious-motivated human sacrifice, each was conduct in violation of social duties and
therefore prohibit able by the state. See quote on p. 1125.

Rule: The Court cannot regulate beliefs, but can regulate conduct.
Braunfeld v. Brown, 1961 Sunday Closing Law v. Free Exercise
The Court upheld the application of a state Sunday closing law to orthodox Jewish merchants,
who argued that their ability to earn a livelihood was impaired by the law, since their religious
beliefs prohibited Saturday work. The Court upheld the statute stating If the State regulates
conduct by enacting a general law within its power, the purpose and effect of which is to
advance the States secular goals, the statute is valid despite its indirect burden on religious
observance unless the state may accomplish its purpose by means which do not impose such a
burden.
Penn. Claimed that it was not religious based, but was designed to create a universal day of rest.
Ct. applied strict scrutiny, and Penn. proved their compelling purpose of a day of rest. Ct. fount
that the Orthodox Jewish view that Sat was better than Sun, was an incidental burden and that
there was not a less intrusive means for achieving the state ends.
Rule: The State can regulate if it is a general regulation on religion even if burdensome to
some.
Sherbet v. Verner, 1963 p. 1126
A Seventh Day Adventist was fired for being unwilling to work on Saturdays, her religions day
of rest. All other available jobs required willingness to work on Saturdays. The state refused to
give her unemployment compensation benefits, on the grounds that she had declined to accept
suitable work when offered. But the SC said that the States refusal violated the right to free
exercise of religion. The Court said this was more than an indirect burden and the state could
not force her to work on Saturday and lose benefits. The Court applied strict scrutiny and found
that the State had substantially interfered with religious conduct and that the State had failed to
establish a compelling objective that would be impaired by providing a religious exemption.
Established strict scrutiny test to laws that substantially impinged on religious conduct.
Dissent said that the cts ruling violated the Establishment Clause.
*side note: Ct set precedent of Strict Scrutiny, but often applied Intermediate in later cases.
Employment Division v. Smith, 1990
The issue was whether Oregon could criminalize the possession of the drug peyote (man was
dismissed because he smoked this and was denied unemployment), and refused to give an
exemption to American Indians whose use of the drug is a central part of their religious rites.
The majority held that Oregon could refuse an exemption, but also held that no balancing of the
states interest in its prohibition against the burden on the individuals religious beliefs need be
carried out so long as the ban on peyote was generally applicable, and not motivated by a
governmental desire to affect religion, the law was fully enforceable despite the burden on the
plaintiffs. Scalia was the majority opinion and OConner concurred in the result.
Test #1:
Justice OConner continued to apply the balancing test of Sherbert and said that the state has a
higher interest in regulating drug use than does the state of SC, and when the balance these
interests, this is a valid regulation.
Test #2: (majority)
Justice Scalia in the majority opinion said that where you have a law of general application that

incidentally burdens religious belief, and then categorically it is presumptively valid. Before,
with not as many religions, a balancing test worked. Now, there are too many religions and a
balancing test would result in too many outcomes. Scalia limited Sherbet to cases involving
parental involvement with their childs education and employment compensation cases. See p.
1133 Bottom, 1134 Top
Rule: A general categorical regulation is okay as long as it only incidentally burdens religious
belief.
Strict scrutiny is triggered only when governments regulate religious conduct through
purposeful interference.
Minimal scrutiny applies to generally applicable laws that require or forbid the performance
of an act that ones religious belief forbids or requires. They are void only if the challenger
proves that they are not rationally related to a legitimate state objective.
Example: If a state had a statute that prohibited alcohol consumption except during religious
services, it would violate the establishment clause. If a state outlawed all liquor at all times, there
would not be a violation of the free expression clause because it does not single out the sacramental
use of wine.
RFRA: Religious Freedom Restoration Act: Congress adopted this policy that elevated the level of
scrutiny in cases like Smith. SC found that Congress exceeded their 14 th amendment power and shot
down RFRA as applied to the states. Therefore, RFRA is only constitutional as applied to federal
issues (ex. Federal Jails).
Church of the Lukumi Babalu Aye v. City of Hialeah p. 1141
The city outlawed all ritual slaughtering of animals but exempted almost all but religious
killings. Court applied Smith and found that the city had the object of the suppression of
religion. First, even were the governmental interests compelling, the ordinances are not drawn
in narrow terms to accomplish those interests. [All] four ordinances are overbroad and
underinclusive. . . In other words, the ordinances were not neutral. A law burdening religious
practice that is not neutral . . . must undergo the most rigorous scrutiny.
Only differing opinion by Scalia was that the text of the statute could be have been drafted in a
neutral manner as to the cruelty of animals.
Locke v. Davey 2004 p.185 Supp.
Washington adopted a college scholarship program that applied to private and public colleges,
but it was not available if the students major was a devotional degree. They did this to avoid
violating the establishment clause contained in their state constitution, which was more specific
than the US constitution. The provision prohibited the government from spending public funds
for a devotional education. Davey had a double major that included ministerial studies. He
challenged the state constitution under the First Amendment of the US Constitution. Hialeah
seems to prohibit this type of ordinance because the exception of the scholarship does not seem
to be facially neutral and should therefore undergo strict scrutiny. Instead, the court applied
something close to intermediate scrutiny because they found no facial unconstitutionality.
They noted that there was a lack of hostility toward religion, and that the scholarship applied at
religiously oriented colleges and universities. Instead of a compelling state interest, they looked
for a substantial state interest. Instead of looking for the least burdensome remedy, they held

that the relatively minor burden of the scholarship program was ok. The line between this
case and Hialeah is very difficult to decipher.
Differences: 1) Davey involved state funds, 2) Davey also did not involve the hostility that
Hialeah involved.
Essay and MC
Pt 1 will be Multiple Choice Closed Book 1 st amendment, procedural dp, religion clauses, freedom
of expression. Memorize Holdings.
Pt 2 Essay, open book substantive dp, equal protection (Beef up outline)