Constitutional Law II 14th amendment Equal Protection Clause: No state (or local government) shall deny any person

the equal protection of the law. I. Strict Scrutiny. 1) Compelling Government Interest, and 2) Necessary means. a) Over 90 % chance law will be struck down. b) Use for race, ethnicity, religion, alienage, nationality. i. Ethnicity: Group subset of a particular ethnic group. ii. Alienage: Not American citizens. iii. Nationality: Where they were born iv. Religion: Over time SC has not used 14th EPC. II. Intermediate Review 1) Important governmental interest, and 2) The means chosen are substantially related to the important governments interests. a) 50 % chance the law will be rejected. b) Use for gender and illegitimacy. c) Two kinds i. Conventional (Craig v. Boren) ii. With Bite (VA v. US and MNW v. Hog..) III. Rational Review 1) Legitimate governmental interest, and 2) Rationally related means. a) 90 % chance the law will be upheld. b) Use for everything else. c) Two kinds i. Conventional ii. With Bite

Railway Express v. New York (Cite to this case in final if discussing Rational Rv.) New York statute did not allow advertising vehicles when the advertisements were not related to the business of the vehicle. This classification has a relation to the purpose for which it was made and does not contain the kind of discrimination against which the Equal Protection Clause of the Constitution protects.
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 Ps argument was that they were discriminated in comparison to people who own their own business. We are treated differently because we do not own our business. Citys argument was that the purpose of the statute was to eliminate distraction in the streets. The court said it was a legitimate reason. Rationally Related: Some sane and possible basis for trying to prevent accidents. Rational legislators. Should only be sane. NYC v. Beazer (Rational Rv.) Methadone users will not be hired by NYC transit authority. NYC was acting under its 10th amendment powers health and safety. Heroin addicts may revert to addiction and cause accidents. Legitimate interest in the safety of the services provided. Exceptions to Rational Review 1) Romer v. Evans (One group singled out, comprehensive discrimination) Colorado amended its constitution and created amendment 2 which prevents governor, legislature or judges from passing laws or protecting gays and lesbians from being discriminated. Sexual orientation is not gender discrimination. No state has right to legislate hate, or pass a statute just because of hate to that group. Kennedys opinion: If is true that Colorado wants to promote freedom of association why is it that only one group has been singled out. a) Factors: i) Hate not safety was then reason behind passing the law. ii) Only one group is singled out. iii) Comprehensive discrimination. Can be discriminated in all aspects of their life (deprives him to earn a livelihood). 2) U.S Department of Agriculture v. Moreno (Crazy speech those dammed hippies unnecessary amendment to a functional law, statute with improper motives) a) Facts i) In 1964 a statute was passed that said that there are two types of households. Related to each other, within this type of household if the income level would go below poverty level then they would be entitled to welfare assistance. i) Households where they are not related to each other. Not entitled to welfare. ii) In 1971 Congress amended the statute and made it so if a person wants welfare they have to be related to each other by blood or marriage. iii) Moreno was living in conditions that functioned like a family. b) Congresss argument was that they were trying to prevent fraud
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c) SC: Said the amendment was due to hate for hippies not to avoid fraud as congress claimed. Previous law did the same and it achieved the same purposes the new statute was unnecessary and was done to include the hippies trying to spread hate. 3) City of Cleburne Texas v. Cleburne Living Center, Inc (Disingenuous reasons) a) Denied permit for the operation of a home for the mentally retarded. b) Citys argument. Was that the property value was going to be less. The house where they wanted to place the home was in a flood zone and that would place them in danger. Disingenuous reason because there were businesses already in the flood zone for example a home for elder people. c) Spreading a message of hate against the mentally retarded. 4) Vanilla Rational Review (Railroad, Beazer) vs. Rational Review with bite (Moreno, Romer, Cleburne) a) When to apply RR with bite or Vanilla RR? i) Vanilla law will be upheld RR with bite the law will be stroke down. ii) Need facts like in one of the cases. At least like in one case if not all three. b) Romer: Single out one group of people. Affects every aspect of their life. Comprehensive in nature. Deprives to earn a livelihood. c) Moreno: Amendment not necessary. Only done because of hate (crazy speech). d) Cleburne: Phony reason to treat people differently. Out of class hatred. Hatred not a legitimate government interest. e) To round it up if want to apply vanilla instead use Railroad and Beazer. Have admitted that law is arbitrary but we are entitled to be a little. Does not need to eradicate all evils Strict Scrutiny under EPC (Race, ethnicity, nationality, allienage, and religion) Suspect Classifications 1) 2) 3) 4) There is a history of discrimination with that minority. Discrete perennial losers. Lack of political power. Immutable. Born that way and cannot change. Stigma. Feel like an outsider all the time.

Racial classification is different from racial discrimination. Are people been treated differently because of race? Ask whether: 1) There is a compelling government interest. 2) The means chosen are necessary. (No other way) Korematsu v. United States
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 1944 was the first time that the SC stated that any racial classification would trigger SS. This case is the precedent however and the courts cite it for it, however they have never said whether what they did was wrong or not. Facts 1. In the aftermath of Pearl Harbor American citizens in with Japanese descent were put into concentration camps. 2. The Petitioner, Korematsu (Petitioner), a Japanese-American, was forced to leave his home that was located in a military area in California. The Respondent, the United States (Respondent), claimed that the expulsion was necessary in the time of war. Analyzis of SS 1) Is there a compelling government interest? Yes. National security. 2) Are the means chosen necessary? a) J. Black: Said that in times of war we should defer to military and president if they thought it was necessary then it is. b) J. Murphy discented: Said the measures were not necessary. Equated the situation with England when it was bombarded by Germany. Not all Germans were put in jail they were interviwed and if they did not pose any risk let go. i) There were other organizations as CIA and FBI that said that the measures were not necessary. Loving v. Virginia 1) Brief Fact Summary. The Petitioners, Mr. and Mrs. Loving (Petitioner), are a married interracial couple. They returned to Virginia after marrying in Washington, D.C. and were convicted of violating a state statute prohibiting mixed marriages. 2) Synopsis of Rule of Law. Racial classification is treated the same as racial discrimination. It must the strict scrutiny test or in other words be necessary to further a compelling state interest. 3) Non-white person can marry any non-white person. White person cannot marry a non-white person if they do they would have to go to prison for a year. 4) Treating people different on the basis of their race is a racial discrimination. Law is white supremacist since it is trying to protect the integrity of the white race. Palmore v. Sidoti 1) Brief Fact Summary. The Petitioners, Mr. and Mrs. Loving (Petitioner), are a married interracial couple. They returned to Virginia after marrying in Washington, D.C. and were convicted of violating a state statute prohibiting mixed marriages.

2) Synopsis of Rule of Law. Racial classification is treated the same as racial discrimination. It must the strict scrutiny test or in other words be necessary to further a compelling state interest. a) Dads argument was that it was on the best interest of the child not to be raised by a black person. b) Court said that it would not give in into racism and that furthering racism is not a compelling government interest. Brown v. Board of Education (Segregation) 1) Separate but equal is inherently unequal. 2) Separate facilities violates the 14th EPC. Since children are treated differently based on their race. 3) The citys argument was that they were trying to further morals and freedom of association. Because people of different races could choose to be with people they liked. Argument was rejected. 4) Warren: Sending children to different school is sending a message of hate. Child grows with the view that he is an inferior human citizen thus destroying childs self-esteem. Disparate Impact Disparate impact the law does not discriminate on its face but on the impact since it treats people differently. Even if the law on its face does not discriminate against suspect class it can still be put through SS. Need: 1) Disproportionate effect. Disproportional numerical impact on a suspect class. 2) Discriminatory intent. Prove that the law was shifty passed to discriminate against suspect class. Ex. what to look for strange test, implausible numbers, prejudiced speech/remarks. Washington v. Davis 1) Police officers needed to pass a test in order to become an officer. 2) The test had a disparate impact among blacks. 3) P has to show that black candidates are suffering a disparate impact (show with numbers fairly easy). How to show: Make sure the test is reasonably related to the aims of government job. Candidate needs verbal skills for the job, also quantitative skills.
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 Test bears a reasonable relationship to the aims of the job. Yick Wov. Hopkins (Do not cite this case) 1886. First case SS is mentioned. San Francisco passed law. Anybody who owns a wooden laundry must pass a safety inspection before getting the license. 90 % of laundries were owned by Chinese immigrants. Chinese denied a permit to operate a wooden laundry. The rest 10 % of the laundries were operated by white people and all of them got the permit. Ps argument the way in which the law is applied is discriminatory. There is no way to explain the numbers if not for racism. Crazy numbers that are implausible. But just because the numbers are different is not enough. After disparate impact then use the SS analysis. For discriminatory intent use Yick Wov. Disparate impact applies to gender as well. Massachusetts v. Feeney City using 10th amendment powers passed a law that gave more points in a civil examination for a job for government to veterans of the US military. P said that the law discriminated against women and that intermediate review should be applied. Gender and legitimacy will be given intermediate review. P has to show that the main reason for the government to pass the law was to discriminate. Passed law to reward people who join the army. No. The benefit of this act was offered to any person who was a veteran. The law is a preference for veterans of either sex over non-veterans of either sex. It was not designed to favor men over women. Discussion. This statute was designed to reward and help veterans reenter society after their service. At the time only 1% of the veterans were women. So, it appeared that this legislation was meant for men only. But, in its application and by definition a veteran is gender neutral. Hypo. Marines required to do 20 pull ups. Federal government agency, look at the 5th amendment. Rational review. Reason: Need to be combat ready, offer example to others (good for morale). The Equal Component of the 5th amendment will subject a law to intermediate review if the law discriminates against gender. Then go through disparate impact analysis. Use W v. D court found reasonable relation in that case.
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 On the other hand then use facts and show they are different. Requirement is not plausible. Not needed for lawyers in the marine. Not combat soldiers. Richmond v. J.A. Croson The Appellant was approximately 50% black, however, less than 1% of the City's construction contracts had been awarded to minority businesses in the period from 1978 to 1983. To address this disparity, the City Council conducted public hearings and voted to approve the Plan, which required 30% of the dollar amount of a prime contract be subcontracted to Minority Business Enterprises (which were owned/controlled by at least 51% minority members), unless the prime contractor was itself a Minority Business Enterprise. The Appellee, a non-minority business under the Plan, sued the Appellant, alleging Equal Protection violations. If state treats people different on the basis of race then SS (Korematsu) Citys argument was that they were trying to revert the discrimination minorities had suffered from government in the past. Want to give more opportunities to minority businesses. SC said means used were not necessary and were overbroad. Some of the council people are black, minorities have legislative powers meaning that they can vote for laws. Beneficiaries include Eskimos and Aleuts who have never suffered discrimination in VA. Justice Sandra Day O'Connor (J. O'Connor) noted that the Appellant has legislative authority over its procurement practices, and may use spending power to remedy private discrimination. However, J. O'Connor notes that race-based classifications must be subject to strict scrutiny, that is, they must serve a compelling government interest and be narrowly tailored to advance that interest. A generalized assertion that there had been past discrimination in the construction industry cannot support this particular remedy. J. O'Connor invokes an essentially "slippery slope" argument to note that without particularized findings, any remedy could be plausible without any surety that it is narrowly tailored to remedy the perceived wrong. In this case, the 30% quota cannot be logically attached to the harm suffered by anyone. Grutter v. Bollinger A white Michigan resident sued the school of law of the university of Michigan after she was denied admission. Grutter said that the schools admission policies violated her 14th amendment rights. Race affirmative action is violating her 14th amendment. The SC found in favor of the school The Law School has a compelling interest in attaining a diverse student body because "attaining a diverse student body is at the heart of the Law School's proper institutional mission".

 University admitted that they looked at race as one of the factors in their admission policy which triggers SS. If doing it at all yes or no question it triggers SS. Schools argument was that they wanted a diverse racial background since people with different perspectives attain a better education. Mission of the university is to learn means used diversity. Important. University showed that race was but one factor used. They used soft variables not a quote system. Gratz v. Bollinger Ps were high school students who were denied admission to the university. Sued the university claiming that the admission policies violated their 14th EPC. The school had system based on 150 points. 20 points were given to any applicant from a minority race. SC found in favor of the school said that the university was interested in filling a quota system not interested in diversity. And was in fact furthering racial discrimination. Quota v. Diversity (or other reasons) Quota system will be upheld only if governmental body itself has discriminated against a racial group in the past and can show it. Hypo. If US military wanted to use alienage, race etc. as one of the factors in its admission process how would it come out? Standard of review: Strict Scrutiniy. Affirmative action policy. Compelling interest: Diversity. Military is everywhere in the world diversity is good may have people that know the language, social aspect, knows culture. Means necessary. But a 30% quota may not be upheld. Equal protection component of the 5th amendment prevents the federal government to discriminate. Hypo. Math and verbal score of SAT will be treated different as before give more importance to verbal score. There was a secret meeting of the board of the university and agreed to get rid of Asian students in the university. Strict scrutiny. Race. Compelling interest: No, only prejudice. For the Final 1) Recite 14th EPC.
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2) Any law that creates a gender classification will be subject to intermediate review (Craig v. Boren). Any legal classification based on gender will be subject to intermediate review. Frontiero v. Richardson (do not use as precedent for IR or SS) By statute, a serviceman may claim his wife as a dependent for purposes of qualifying for increased quarters, medical and dental benefits, and other increased support. However, a servicewoman may claim her husband as a dependant only if he is dependent on her for more than half of his support. The Petitioner, Frontiero (Petitioner), alleges that this policy denies her the equal protection of laws afforded by the Fifth Amendment of the United States Constitution (Constitution). Women had to prove they had a dependent men did not. Military claimed the compelling government interest is speed and efficiency however no basis. SC said the law perpetuated a traditional stereotype that women cannot be financially independent of their husbands. Craig v. Boren 1976 (Cite for gender discrimination being subject to intermediate RV) Main point is that establishes that intermediate review is supposed to be used for gender based classification. Women in Oklahoma can buy alcohol when they are 18 years old but men cannot until they are 21. Oklahoma treats women and men differently because of traffic safety. State showed statistics saying that boys are more likely to get arrested for drunk driving than girls. Brennan: means chosen not rationally related to the means but advances a stereotype that boys are wilder than girls. Brennan wants to induce autonomy but does not say it. Intermediate Review with Bite. Law will be struck down. Ask whether: 1. There is an important government interest. 2. Are there exceedingly persuasive justifications. United States v. Virginia (VMI) (IR with Bite) VMI would not allow girls to enroll in the school. Schools argument is that girls have less courage than boys. Cadets had to suffer various forms of torture (deprivation of sleep for example). Stereotype that girls are frail and coward. There is also a lack of comparable opportunities for women within the Virginias state college. Geduldig v. Aiello
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 California operated a disability insurance system that supplemented workers compensation, in that it provided for payments for disabilities not covered by workers compensation. The list of disabilities paid for by the State of California was not exhaustive. Among those disabilities not paid for were certain pregnancy related conditions. Suit was brought challenging the system as an unconstitutional gender-based classification. The list of conditions covered by the disability insurance system is not exclusive. Furthermore, there are conditions not covered by the system that affect both men and women. The excluded conditions do not affect women alone. The savings given the program by the exclusion of such conditions benefit both men and women. That is, inclusion of the excluded conditions would result in lesser amounts of funding for all other conditions. Intermediate Review with Bite (relies on an explicit traditional gender stereotype) 1. Cite MVW v. Hogan 2. Exceedingly persuasive justification for important government interest and substantially related means. Gender classification on the face of the law or impact it will be subject to intermediate review. Look at Disparate numbers. Main reason the law was passed was to discriminate against gender. No reason to pass law not an important government interest. Have to strike down the law. Use this test if government is explicitly relying on a traditional gender stereotype. If based on statistics conventional should be used.

Conventional Cite Craig v. Boren (Beer Case) Means chosen not substantially related. Difference between statistics not relevant. Passed a law based on a stereotype. MVW v. Hogan Public school ran by state. Discriminated against males. Government arguments: boys will be distracted by the girls. was taking classes there (auditing) but could not get degree. Want to promote the number of girls that are nurses. But statistics showed that a lot of women were already nurses.
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 OConnor: Univeristy is making the explicit traditional gender stereotype that to be a nurse is a womans profession. Exceedingly persuasive justification? Not really there are enough nurses already. Are the means substantially related? Calaforno v. Webster Women have been discriminated by the government and now the government is trying to apologize by offering better social security benefits. Congressional statute erases a number of the womens income years so that their income can boost up, therefore giving a different treatment to women. Courts argument: Throughout the history women have been discriminated, the labor that women do as mothers is not remunerated. Which is why they do not have a lot of social security benefits. Not based on an explicit stereotype but doing the opposite to outbalance the social practices that have discriminated against women in the past. Governments interest is to offset for a history of discrimination and trying to give more income to women. Means chosen are substantially related. Be careful about using this case because the facts are too malleable. Use only when the facts are like it in the case. Hypo Daughter dance at school Plaintiff (parents side) argument: recite the EPC. If local government. If federal government 5ht amendment. In this case the elementary school is a local government body. The supreme court will apply intermediate review for gender classification (Craig v. Boren) In this case the local government (school) has created a gender classification. The SC has two different versions of intermediate Rv. For most gender classification the court will apply conventional intermediate review. However the court will apply a heightened review-intermediate review with bite- if the law is based on an explicit traditional gender review. With bite. Make it look like two cases. In the VMI case the court applied intermediate review with bite brcause the VMI excluded women for lacking courage an explicit traditional stereotype. Analysis: women are the ones who dance, traditional view, womens job is to entertain the audience because theya re cuter than boys.

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Like in VMI the school is relying on a traditional stereotype that girls should entertain and please. Here the girls are placed in the front of the stage while boys are obscured in the back. Not base on any test but on a stereotype. Ok if there had been a test and that is how they decided to treat them differently. Here girls are immediately segregated based on a stereotype. Argument for the school. How to distinguish from VMI? In VMI the reason why the court applied bite was because the school completely excluded girls.VMI was sending a powerful message that it was an explicit traditional stereotype that girls lacked courage. In contrast here the girls are not being excluded from school. Boys and girls are being treated differently for a very limited time and for a very discrete cultural performance. The purpose in VMI was to act upon the stereotype but here is just to show fidelity to a cultural practice. Unlike in VMI the cultural practice will last for a very limited time. Boys and girls are doing and participating in the same thing. In VMI the girls were not allowed to do anything is comprehensive, clear that girls cannot participate in any way.

Hypo # 2 University of Michigan school of mechanical engineering had only two female students graduate from the class. School bought a house only for female students in mechanical engineering or other science related careers were allowed to sleep in that dorm. WISE program was run by state entity Go through steps and in case before boy will want with bite review because it has to be strike down. Stereotype that women need specials accommodations. In VMI women were excluded because they lacked courage here is the opposite they created a dorm based on the gender stereotype that they lack a scientific brain. Make argument from the perspective of the girl. Plyler v. Doe 1. Complete deprivation of a very important right (Public Education-Elementary and Secondary) 2. A highly vulnerable group (Children of illegal immigrants) Graham v. Richardson

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Arizona said that only American citizens that had resided on the state for 15 years are entitled to receive welfare money. When federal government treats aliens different is just analyzed under intermediate review. Governments interest: State says it does not have enough money to give everyone. Physical limitations. Means: not related if physical limitation is an issue give less money or raise taxes. Sometimes when states treat aliens different is subject to intermediate review.

Foley v. Connelie When a state acts within its constitutional prerogatives, its classifications based on alienage are subject only to rational basis scrutiny If it discriminates in regard to law enforcement position only subject to rational review. Law said that any state trooper must be an American citizen. Plaintiff not allowed to take test to become police officer because he was not an American citizen. Courts rationale: The first person in your life that determines or violates constitutional rights. Given such responsibility the police officer should know the constitution and come from a country who has an understanding of rights and civil liberties.

Ambach v. Norwick Brief Fact Summary. The Respondents, Norwick and Dachinger, are resident aliens denied teaching certificates by the State of New York solely on the grounds of their lack of United States citizenship. Synopsis of Rule of Law. Education, like the police power, represents a "fundamental obligation of [state] government," and thus allows rational distinctions based on alienage. Want American citizens or people that are seeking naturalization because teachers have to teach but also have to show children to obey government.

For aliens case ask whether any of the two options apply. Plyler v. Doe Brief Fact Summary. Texas denied the children of illegal immigrants free public education. Legal representatives of such children brought suit, alleging Texas's statute violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution (Constitution). Synopsis of Rule of Law. The State may not deny free public education to the children of undocumented immigrants. Courts argument: Said children have almost all the characteristics of a suspect class. Very young children that were brought here and had no option or say about it. In order to apply Plyler have to go through 4 choices for suspect classes.
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This case functions like intermediate review the law was stricken down. Dealing with a very important right with regard to a highly vulnerable group. Higly vulnerable because it meets almost all the indicia for a suspect class. o Immutability: cannot change do not have a say. o Stigma: Leaving like a criminal o History of discrimination o Dicrete and insular minority, losers in the legislature cannot vote. Not a fundamental right but a very important one. If leave children without education and illiterate will be creating a generation of homeless people and criminals.

San Antonio School District v. Rodriguez (preceeded Plyler) Brief Fact Summary. Respondents brought a class action on behalf of parents and students residing in poor school districts in Texas, alleging the State's system of funding schools based on local property taxes denies equal protection to students in poor districts. Synopsis of Rule of Law. Education is not a "fundamental right" for purposes of Equal Protection analysis. School district said that it was not their money they only held it on trust. The argument is that poor people are being discriminated. However, not a discriminated minority since they can vote. Stigma yes there is. Immutable no because even that they are born poor they can change and get out of it. It is not a complete deprivation of a very important right. Still receive an education even if is bad. Passes rational review vanilla.

Massachussets Board of Retirement v. Murgia Brief Fact Summary. Massachusetts law requires state police officers to retire upon turning 50 years old. The Respondent, Murgia (Respondent), argues that this compulsory retirement denies him equal protection under the laws. Synopsis of Rule of Law. Age classifications are only subject to rational basis review. Can work as a detective but not on the streets. Will be slow and weak more vulnerable as a police officer. The Supreme Court of the United State's (Supreme Court) majority states that although there has been age discrimination in the past and at present, it does not represent the same type of "purposeful unequal treatment" that has been shown on the basis of race or national origin. As such, the Supreme Court states that rational basis review is the proper level of scrutiny in the current case. Not a suspect class. Not a minority, can vote, AARP is a rich lobby group. Have more education and money. No history of discrimination. Stigma on the contrary carries some kind of authority. Immutability not really it changes over time. Government Interest: Safety of public and officer.

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First Step: Whether there is a fundamental right? Second step If yes If no

The law infringes then strict scrutiny. Law does not infringe then rational review. Plyler v. Doe (also need a highly vulnerable GRP) Rational Review

Fundamental right: The law preventing you from doing something. Liberty from EPC refers to 8 amendments of the constitution the bill of rights. Substantive due Process: Rights you have from the constitution. Right to abortion, right to get married, custody to ones child, right to contraceptive, right to raise ones kid. Procedural due Process: What types of procedures the government must give you before it takes away your substantive due process. No fundamental rights: Job, food and shelter, healthcare. *****For vanilla rational review here do not cite to Railway or Beazer***** *****Rational Review with bite cannot put here******* Lochner v. New York New York passed a statute limiting the number of hours a baker can work in a bakery to protect the health of the baker. There were few jobs so bakers can be exploited. They worked in bad conditions tired in an unsafe place. The liberty clause of the EC is where judge said there is a fundamental right of K. This was overruled later. The court applied SS. The court said that there was no compelling evidence to suggest that working in a bakery is more dangerous. Declares the law unconstitutional because it violates the right of K. Synopsis of Rule of Law. A state may interfere with a person's right to contract for his labor, only if such interference is reasonably related to a legitimate purpose such as the protection of public health, safety or welfare.

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Facts. New York passed a statute that limited the number of hours a baker could work to no more than 60 per week, or 10 hours per day. Petitioner worked more than the stipulated amount and was convicted of a misdemeanor. Discussion. The majority characterizes the statute as an interference with a person's right to contract and earn a living. The idea that a baker is an occupation that puts the public at risk is dismissed as a simple notion. The position is compared to those who work in a steel foundry and coal mine. Clearly, those workers are put in and put others in danger when extremely fatigued.

Muller v. Oregon (617) Synopsis of Rule of Law. The general right to contract is protected by the United States Constitution (Constitution), but this liberty is not absolute. Facts. In 1903, Oregon passed a statute limiting the hours a woman can work to just 10 hours if she was employed in a laundry, factory or mechanical manufacturer. The reasoning for the law was, "the physical organization of women, her maternal functions, the rearing and education of children and the maintenance of the home." Issue. Is a state statute limiting the length of a woman's workday constitutional? Held. Yes. Women, like minors, are a special class of worker that needs protection. This statute is within the state's police power to protect the health of the general public because the physical well-being of women is paramount to the production of healthy offspring.

Adkins v. Childrens Hospital Synopsis of Rule of Law. The freedom to contract may be restricted only when exceptional circumstances exist as they relate to the police powers of a state. Facts. The District of Columbia imposed a law upon all employers forcing them to pay their women and child workers a predetermined minimum wage. Issue. Is the fixing of a minimum wage for children and women constitutional? Held. No. It is inappropriate to restrict a woman's freedom to contract for her labor service when such restriction is not equally applied to a man. The payment of a minimum wage puts a burden on the employer that is completely unrelated to his business. Citys Argument: women and children do not have the specific skills therefore they can be exploited do not have the same options as men the city is just making sure that they are not exploited.

*****Lochner and West Coast Hotel are the most important cases***** West Coast Hotel v. Parrish (Vanilla Rational Review) Court reverses itself and says that there is no fundamental right of K.

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Brief Fact Summary. Washington instituted a state wage minimum for women and minors. The Appellant, West Coast Hotel (Appellant), paid the Appellee, Parrish (Appellee), less than this minimum. Synopsis of Rule of Law. Wage and hour laws generally do not violate the Due Process Clause of the United States Constitution (Constitution). Facts. The Appellee was a maid who worked for less than the state minimum of $14.50 per 48-hour week. She brought suit to recover the difference in pay from the Appellant. Issue. Is the fixing of minimum wages for women and minors constitutional? Held. Yes. This case overrules Adkins v. Children's Hospital. The exploitation of a class of workers who are at a disadvantaged bargaining position is in the best interest of the health of the worker and economic health of the community. Discussion. The Supreme Court of the United States (Supreme Court) reverts to reasoning that women are in an inferior position and need to be protected from those who might try to take advantage of the situation. Furthermore, the state is justified in adopting such legislation to protect the rest of the community from the burden of supporting economically disadvantaged workers. It is important to note that the Depression colored the Supreme Court's analysis Notes: Go through Vanilla Rational review for non-fundamental rights. Governments interest: to protect economic welfare of vulnerable workers. Means chosen are rationally related, it provides some degree of equality.

Williamson v. Lee Optical (p. 629) Brief Fact Summary. The Oklahoma legislature passed a statute prohibiting opticians from fitting or duplicating eyeglass lenses without a prescription from an ophthalmologist or optometrist. Synopsis of Rule of Law. A law need not be logically consistent with its aims to be constitutional. It just needs to be a rationally related to a legitimate government interest. Facts. The District Court of Oklahoma held that the regulation limiting the extent of an optician's practice violated the United States Constitution (Constitution) because it was not reasonable or rationally related to the health and welfare of the people. Issue. Is a statute limiting the function of an optician constitutional? Held. Yes. The Supreme Court of the United States (Supreme Court) will no longer use the Due Process Clause or the 14th Amendment to strike down state laws, regulatory of business and industrial conditions, because they run afoul of a particular school of thought. 3 different types: ophthalmologists, optometrists and opticians. Only the first two could fit lenses into frames. Made arguemtn of fundamental right of K allow people to pay less for their services. Court said no fundamental right of K. State invoked 10th amendments powers.
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Cannot use for EPC.

Home Building and Loan Association V. Blaisdell. Brief Fact Summary. The Appellant, Home Building & Loan Assn. (Appellant), contests a Minnesota law that prevents mortgage holders from foreclosing on mortgages for a period of two-years. Synopsis of Rule of Law. A state law may impair the contractual obligations of private parties when there is a legitimate state interest and justification. Facts. In response to the Depression, the Minnesota legislature passed the Minnesota Mortgage Moratorium Law. This law allowed homeowners to seek relief from foreclosure proceedings. Sales could be postponed and periods of redemption extended except for those loans that were made after the passage of the law. Issue. Does this provision violate the Contract Clause of the United States Constitution (Constitution) by impairing the obligations between private parties in contracts? Held. No. The state was justified under the circumstance of the Depression to extend foreclosure timing to protect the economic interests of the state and its citizens. The Depression was a proper emergency situation that warranted the action by Minnesota. The legislation addressed a legitimate government purpose. The contracts affected by this legislation are limited and it does not arbitrarily affect all mortgage contracts. The time extensions are not unreasonable. The law is temporary in operation. Discussion. The Supreme Court of the United States (Supreme Court) provides a description of contractual impairment as that which releases a person from contractual obligation. Generally, a state is not permitted to interfere with private contracts. But, if the state can provide sufficient justification for the interference (such as safeguarding the community for health or economic reasons), then the law will likely be constitutional. Notes: Farmers only have to pay fair rental value which is cheaper and banks cannot foreclose on them. Article 1 section 10. No state shall impair the obligations of K. if two parties have made a K a law passed that annuls it is in violation of article 1. However due to the conditions of the country farmers are going to lose everything. This is an emergency however this case has never been invoked again. Fundamental rights 1. Marriage (Zablocki). Heterosexual monogamous marriage is a fundamental right under the liberty clause of the 14th amendment. 2. Familial Association (Moore v. City of East Cleveland) unconventional combination of families. 3. Parental Rights, rearing kids (Meyer and Pierce) Yoder (amish case) 4. Contraceptives and birth control (Griswold, Eisenstadt) 5. Right to abortion (Roe v. Wade) 6. Having a child (Skinner v. Oklahoma) Zablocki v. Redhail
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Brief Fact Summary. The Respondent, Redhail (Respondent), was denied a marriage license by the State of Wisconsin under a statute requiring a court order prior to marriage of Wisconsin residents with non-custodial minor children to whom they owe a duty of support. Synopsis of Rule of Law. Marriage is a fundamental right, which requires a compelling state interest and a sufficiently related means before the state may infringe upon it. Facts. The Respondent has an out-of-wedlock minor daughter, for whom he is under a court order to provide monetary support. The Respondent has been unemployed for long periods of time and at the time of the suit is over $3,700 behind in his support payments. The Respondent's marriage license of September 27, 1974 was denied on grounds that he did not procure a court order granting explicit permission for the marriage to proceed. It is uncontested that the Respondent could not receive such an order because of statutory limitations and his arrearages in child support. Issue. Is the Wisconsin statute's interference with the right to marry a violation of the Fourteenth Amendment's Equal Protection Clause? Held. Yes. Court of Appeals ruling affirmed. Justice Thurgood Marshall (J. Marshall) wrote for the majority. He cites precedent that marriage is a fundamental right and that the classification at issue significantly interferes with the exercise of the right. Because of this, the State must show a compelling interest in the interference and show that the means chosen to do so are sufficiently related to the interest. The challenged statute was originally to be a counseling device, requiring individuals with support obligations to children from previous relationships to be counseled before entering into a new marriage and perhaps incurring other support obligations. The court was then to give automatic permission for the marriage. However, this does not resemble the enacted statute. The statute as enacted is supposed to aid in collection of child support. In the case of individuals unable to meet the requirements, no money is given to the supported children, but the right to marry is withheld from the individual. As such, the statute does not add any new collection devices. Because of the broad infringement of the statute, the means are not sufficiently related to the government interest advanced.

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Dissent. Justice William Rehnquist (J. Rehnquist) argues that marriage is not such a fundamental right as to trigger strictest scrutiny. He rather argues for rational basis review. J. Rehnquist argues that the statute at bar passes rational basis review. Concurrence. Justice Potter Stewart (J. Stewart) concurred in the judgment, but believe that rather than invalidating the statute on Equal Protection grounds, the Supreme Court of the United States (Supreme Court) should have invalidated it as an impermissible regulation of marriage that invades the sphere of liberty protected by the Due Process Clause of the Fourteenth Amendment of the United States Constitution (Constitution). Discussion. The three opinions given illustrate that the lens through which a case is viewed may result in vastly different analysis. The majority opinion focuses on two classes: Wisconsin residents without obligations to non-custodial, dependent minor children and Wisconsin residents with support obligations toward such children. J. Stewart's concurrence does not view the case as one of discriminatory classifications, but one of unwarranted state intrusion into private matters of citizens. J. Rehnquist argues that marriage is not a fundamental right and thus Wisconsin is not producing a discriminatory class or intruding into personal liberties. Notes: Statute does not allow dead beat fathers to get a license to get married. They need to make child support payments first. There is a fundamental right to get married under the liberty clause of the 14th amendment. Compelling government interest is to make father pay. Morals and welfare 10th amendments rights of the state. Means chosen however are not the least restrictive ones. There are means that are less restrictive. Page-952. 2nd sentence and 2nd paragraph. Cite to that language. Right that is almost sacred in nature Strict scrutiny applied statute was struck down.

Moore v. City of East Cleveland of Ohio Brief Fact Summary. The Petitioner, Mrs. Inez Moore Moore (Petitioner), was convicted of a criminal offense under an East Cleveland housing ordinance for having one of her grandsons living in her house. Synopsis of Rule of Law. The State must advance a compelling interest to infringe upon the choice of relatives of a close degree of kinship to live together. Facts. East Cleveland's housing ordinances restrict occupancy of certain dwellings to single family units. The ordinance in question, however, recognizes only a few categories of related individuals as a "single family." At the time of the complaint the Petitioner, lived in East Cleveland with her son and two of her grandsons, who were cousins, rather than brothers. Her living situation did not match one of the statutory definitions of single family. She was charged and sentenced to pay a $25 fine and spend 5 days in jail. Issue. May the City restrict its definition of single family in such a manner as to remove certain combinations of close blood relations in the same house from that definition?
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Held. No. Appeals Court ruling reversed and remanded. Justice Lewis Powell (J. Powell) notes that municipalities generally have a broad ability to enforce single-family housing ordinances against groups of individuals living together where there is no relation by blood, adoption, or marriage. However, the tradition of having family members live with others in their extended family is long and representative of the basic values underlying our society. As such, the decision to move in with extended family or move extended family in with ones nuclear family may be regarded as a fundamental right. J. Powell argues the State has no compelling interest in restricting the definition of a single family in such a manner as to exclude combinations of close blood relations. Dissent. Justice Potter Stewart (J. Stewart) argues that the line of cases restricting definitions of single families focuses not so much on blood relation, but rather the ability to have children and to raise them in the manner one deems proper. The City ordinance does not affect the Petitioner's right to do any of these. Discussion. The majority and dissent differ largely in their conception of what the fundamental right involved in the case is. The majority holds it to be family associations broadly. The dissent argues that the family associations are merely emanations from more basic rights, reproductive autonomy and child-rearing. Notes Only nuclear families allowed to live together. Familial association violation s argument under 14th amendment. Justice Powell said that when you are in trouble people turn to their kin to get them through bad times. Instead of condemning that practice the court should further it. Citys argument: Traffic congestions is a compelling interest. Means chosen are not the least restrictive means. Could just limit the number of cars.

Meyer v. Nebraska Brief Fact Summary. The Petitioner, Meyer (Petitioner), was tried and convicted of teaching reading in German to a 10-year-old student in violation of state laws regulating the teaching of foreign languages. Synopsis of Rule of Law. The right of parental control also extends to the type of education children receive. Facts. The Respondent, the state of Nebraska (Respondent), made it illegal to teach any class in a non-English language, to teach any non-English language to a pupil prior to the ninth grade and set fines and jail time for any individual violating the statute. Issue. May the State of Nebraska outlaw foreign-language instruction? Held. No. Justice James McReynolds (J. McReynolds) notes that "mere knowledge of the German language cannot be reasonably regarded as harmful." As such, it is difficult to ascertain why the Respondent should so influence the educational opportunities of the children of the State and interfere with parental choice of educational experiences.
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Discussion. J. McReynolds notes that the justification for the statute was most likely antiGerman sentiment following the First World War. He also suggests that the statute may not be unconstitutional in wartime, when the State's interest in fostering a homogeneous population with "American ideals," is far greater than during peacetime. Meyer is clearly indicative of jurisprudence prior to the development of the fundamental right/compelling state interest/substantial relation analysis of the current Supreme Court of the United States (Supreme Court). Notes No school can teach other language other than English until kid is 15. Plaintiff says that violates his fundamental right as a parent to rear his kid as he sees fit (convey linguistic tradition to children). Page 969 Platos quote. Want parents to be partially autonomous of government. Want children to think by themselves not follow government.

Pierce v. Society of the Sisters of the Holy names of Jesus and Mary Law that makes children to go only to attend public schools. Private school sued for the parents. There is a fundamental right of parents to convey religious believes as he see fit. There are less restrictive means to do it???? Read this case. Do not understand.

Wisconsin v. Yoder (971) The supreme court held that Amish parents had a constitutional right based on their right to control the upbringing of their children and based on free exercise of religion to exempt their children from compulsory school attendance law.

Hypo Proposition 8. Marriage only by a man and woman. There is not a fundamental right to gay marriage but could make the argument. Compare facts. Recite the 14th EC. In Zablocki the law recognized the fundamental right of marriage. The fact that Zablocki was between man and woman is irrelevant then cite to language marriage is a coming together Gay relationships can be sacred and economically is similar to heterosexual. Argument for the city: Distinguish facts from Zablocki. In that case it was a heterosexual couple. Taking case out of context. Traditional custom. Against: There is a tradition of homosexual people living together, language is ambiguous because want to give people freedom to combine in unconventional manner, cohabitate.
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Moore: Unconventional setting, better for families to be together than living apart.

*****Missing a class**** 5th amendment: Federal government (includes Washington DC) cannot deprive you of. Troxel v. Granville Brief Fact Summary. The Petitioners, the grandparents of Isabelle Troxel and Natalie Troxel (Petitioners), sued their mother, the Respondent, Tommie Granville (Respondent), for visitation rights, under a Washington statute that allows any individual to sue for visitation rights. Synopsis of Rule of Law. The interest of parents in the "care, custody, and control of their children" is a fundamental right that the State may not abridge without a compelling interest. Facts. The Respondent and Brad Troxel (Mr. Troxel) had a relationship that lasted some years and produced two daughters, but the couple never married. Two years after they separated, Mr. Troxel committed suicide. In the time between their separation and his suicide, Mr. Troxel often brought Isabelle Troxel and Natalie Troxel to his parents' house. After Mr. Troxel's suicide, his parents wanted to continue to have a relationship with their granddaughters. However, the Respondent's opinion of appropriate visitation times and durations differed from the grandparents'. So, under the Washington statute authorizing suit for visitation rights by any party, the grandparents asked for a judicial determination in the best interest of the children. Issue. Does the Washington statute interfere unnecessarily with parental control over the raising of children? Held. Yes. Supreme Court of Washington ruling affirmed. Justice Sandra Day O'Connor (J. O'Connor) reiterated that the raising of a child is one of the most fundamental of all protected liberties. Because of this, the state must prove the existence of a compelling interest for the statute. J. O'Connor points out two important issues: (1) the statute does not require the court to afford any special weight to the parent's decisions regarding the child and (2) there is no determination that the parent is an unfit guardian. This latter point is most important, as there is a presumption that fit parents act in the best interests of their children. Because of this, when the trial court reviewed the suit it gave no special consideration to the Respondent's concept of the best interest of her children. Dissent. Justice John Paul Stevens (J. Stevens) believes the case should have been denied certiorari, as the Washington Supreme Court struck down the statute itself.

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 Justice Antonin Scalia (J. Scalia) argues that the Court should not be deciding questions of family law, but rather the legislature. Justice Anthony Kennedy (J. Kennedy) believes that the best interest of the child standard required by the statute provides the necessary protection to the parent's constitutional rights. Concurrence. Justice David Souter (J. Souter) argues that the statute is facially unconstitutional as it too broadly allows anyone to sue for visitation rights at any time. Justice Clarence Thomas (J. Thomas) states that he would affirm the lower court ruling on the basis that Washington has no compelling interest in second-guessing a fit parent's decision on visitation of third parties. Discussion. The plurality does not address the facial constitutionality of the statute, but that the statute is unconstitutional when applied to the situation of the Respondent and her children. The greatest difference between the plurality and the concurrences lies in whether or not the facial issue is reached. Skinner v. Oklahoma Brief Fact Summary. The Petitioner, Skinner (Petitioner), was sentenced to involuntary sterilization under Oklahoma's Habitual Criminal Sterilization Act (the Act) and now alleges that the Act deprives him of equal protection under the laws. Synopsis of Rule of Law. The right to have offspring is a fundamental right, requiring a compelling state interest to interfere with it. Facts. Oklahoma defined a "habitual criminal" as a person who, "having been convicted two or more times for crimes 'amounting to felonies involving moral turpitude' either in Oklahoma or another State, is thereafter convicted of such a felony in Oklahoma and is sentenced to a term of imprisonment in a Oklahoma penal institution." Such habitual criminals could be subject to forced sterilization. The Petitioner had been twice arrested for theft offenses before being arrested and confined for armed robbery. During his third incarceration, the Act was passed and proceedings were instituted against him. Issue. May the State sterilize an individual against his will for being convicted of three felonies involving moral turpitude? Held. No. Supreme Court of Oklahoma ruling reversed. Justice William Douglas (J. Douglas) notes that sterilization of habitual offenders in no way guarantees that new offenders will not be born. Furthermore, there is no guarantee that habitual offenders would spawn offenders themselves.
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 J. Douglas cannot justify the distinction between larceny (involving moral turpitude) and embezzlement (not involving moral turpitude) in the eyes of the statute. This is clear discrimination in J. Douglas's view. In terms of fines and imprisonment the crimes are identical to the State. Only when it comes to sterilization do the crimes differ. As such, equal protection is violated. Concurrence. Chief Justice Harlan Stone (J. Stone) concurs in the judgment, but rests his decision on due process grounds, arguing that the invasion of personal liberty is too great. Discussion. Skinner represents the Supreme Court of the United States' growing awareness of the right to reproductive autonomy. Unlike later cases that focus on due process and a right to privacy, the majority in Skinner holds that sterilization in the present situation violates equal protection principles. Notes There is a legitimate government interest in trying to prevent crime however the means chosen are not related. There is no evidence that shows that criminality is a genetic predisposition. The punishment is too harsh and there are least restrictive ways to puish. This is the case to cite to say that the right to procreate is a fundamental right.

Griswold v. Connecticut (right of married couple to contraceptives) Brief Fact Summary. The Appellants, Griswold and others (Appellants), was arrested for providing information, instructions, and medical advice to married persons as a means to prevent conception. Synopsis of Rule of Law. Intimate marital relations lie within a zone of privacy into which the government may not intrude. Facts. Connecticut law criminalized the use of chemical and mechanical contraception, as well as the counseling and aiding the use of such contraception. The Petitioner was the Executive Director of the Planned Parenthood League of Connecticut. The Petitioner was arrested after providing information and instructions on birth control methods to married people. Issue. May the government ban all use of contraceptives? Held. No. Appeals Court ruling reversed. Justice William Douglas (J. Douglas) describes the "penumbras[] formed by emanations from specific guarantees of the Bill of Rights." In particular, he describes the fact that the State cannot "contract the spectrum of available knowledge" consistent with the First Amendment of the

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United States Constitution (Constitution). He also describes the rights to "privacy and repose" suggested by many of the Amendments in the Bill of Rights. J. Douglas suggests that the marital relationship lies at the center of such a zone of privacy. As the law prohibits the use of contraceptives, rather than their manufacture or sale, the law is aimed at the core of the marital relationship. He argues that this is too broad a sweep to be a constitutional exercise of state authority. Dissent. Justices Hugo Black (J. Black) and Potter Stewart (J. Stewart) dissented. They admit they find the Connecticut statute offensive, but believe that unless there is a specific constitutional provision otherwise, the remedy for such legislation is through the political branches, not the judiciary. Concurrence. Justice John Marshall Harlan (J. Marshall) argues that the statute should be overturned on Due Process grounds, as the enactment violates "basic values 'implicit in the concept of ordered liberty.'" Justice Byron White (J. White) concurs on due process grounds, believing that the purpose of the statute is to enforce policies disfavoring illicit sexual contact. He notes that denying married couples the right to contraception in no way strengthens that policy. Justice Arthur Goldberg (J. Goldberg) believes that the Ninth Amendment of the United States Constitution (Constitution) guarantees that the marital relation is a right retained by the people, and as such, Connecticut does not have the constitutional authority to abridge that relationship. Discussion. The opinion of the Court in Griswold is unusual in that it relies on inferred rights in the Constitution. Furthermore, it is difficult to distinguish how the Supreme Court's opinion is any more "correct" than the concurring opinions offered. Eisenstadt v. Baird Brief Fact Summary. The Appellee, Baird (Appellee), was arrested for lecturing on contraception to a group of University students and distributing contraceptive foam to a student after the lecture. Synopsis of Rule of Law. The State may not discriminate between married and unmarried individuals in prohibiting the distribution of contraception. Facts. Massachusetts law created three classes of people receiving contraceptive devices and drugs: (1) married persons could receive contraceptives to prevent pregnancy, but only from doctors or druggists on prescription; (2) single people may not receive contraceptives from
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anyone to prevent pregnancy and (3) anyone may receive contraceptives from anyone to prevent the spread of disease. Issue. May the state discriminate between married and unmarried couples in prohibiting birth control methods? Held. No. Appeals Court ruling affirmed. Justice William Brennan (J. Brennan) notes that "if the right to privacy means anything, it means the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Dissent. Chief Justice William Burger (J. Berger) argues that there is nothing in the Fourteenth Amendment of the United States Constitution (Constitution) that suggests birth control must be made available on the open market. Discussion. A right to privacy is again recognized in Eisenstadt. Here, the right to contraception is extended to unmarried individuals, as well. Roe v. Wade Brief Fact Summary. The Petitioner, Jane Roe (Petitioner), was pregnant and challenged the Texas statute prohibiting her from acquiring an abortion. Synopsis of Rule of Law. The State has a limited ability to affect a woman's ability to procure an abortion. Facts. The Petitioner was pregnant with an unwanted pregnancy and brought suit against the State of Texas for prohibiting medically licensed professionals from performing abortions. Issue. To what extent may the State regulate a woman's ability to procure an abortion? Held. It varies, depending on the trimester during which the operation occurred and whether or not the woman's life and health is taken into account. Justice William Brennan (J. Brennan) produced a continuum. He begins by noting that a statute, which only excepts from criminality those abortions designed to save the mother's life is unconstitutional. Prior to the end of the first trimester, only the pregnant woman and her physician may make decisions regarding the termination of a pregnancy. During the second trimester, the state may regulate abortion in manners reasonably related to maternal health.
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 During the third trimester, the state may even prohibit all abortion procedures, except where the life or health of the mother is at risk. Dissent. Justice William Rehnquist (J. Rehnquist) dissents, largely arguing that the threetrimester approach offered by the majority speaks more of judicial legislation than constitutional analysis. Discussion. The right to privacy is extended further again. Roe is the central case involving a woman's right to terminate a pregnancy. Roe's three-trimester approach is no longer used by federal courts in analyzing abortion legislation, but rather a more fluid approach outlined in Planned Parenthood v. Casey, 505 U.S. 833 (1992). 276 Notes Life begins when the fetus becomes viable, when he becomes a human being that point is when he is able to survie outside of the mothers body. Fetus becomes a person when he is viable, right of abortion ends when baby is viable. Courts argument: women that seek abortion are not prepared physically or mentally to become mothers. Some decisions are so intimate and private and personal that the government has no right to intrude. No right to force a woman to have a child. The trimester system was established o 1st trimester the state can regulate abortion only about the womans health but cannot prevent or discourage from getting an abortion. Only woman and doctor can make decisions o 2nd trimester state can regulate to promote its interest in the health of the woman. o 3rd trimester the state can pass a law to prevent a woman from having an abortion.

****For final have to do two prong analysis****???? Hypo Florida passes a law that says that in order to have an abortion woman has to look at the ultrasound. Reason is that they want to save the life of the fetus. Under the EPC intermediate review with bite. Traditional explicit stereotype (VMI, Hogan ) that women are too emotional, irresponsible, not serious, need somebody else to make decisions for them. Govs Argument: The law discriminates between pregnant and not pregnant. (Geduldig v. Aiello). Discriminates against a particular human being that defines themselves by actions not gender. Counter: in that case it was about economic class. This case women are asking for fundamental right to get an abortion.
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Planned Parenthood v. Casey Brief Fact Summary. Pennsylvania amended its Abortion Control Act (the Act) in 1988-89, largely believing Roe v. Wade, 410 U.S. 113 (1973) would be overturned. Synopsis of Rule of Law. The central holding of Roe is still good law. Facts. Pennsylvania amended the Act to require, among other things, that a woman give informed consent at least 24 hours before the procedure, that a minor have at least one parent give consent (although there is a judicial bypass option for minors) and that a married woman must sign a statement saying she has notified her husband of the procedure. Issue. Does the amended Act satisfy the federal courts' post-Roe conception of abortion rights? Held. No. Appeals Court ruling overturned. Justices Sandra Day O'Connor (J. O'Connor), Anthony Kennedy (J. Kennedy), and David Souter (J. Souter) wrote for the Supreme Court of the United States (Supreme Court), noting that "[a]t the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." J. O'Connor, J. Kennedy, and J. Souter note that any reservations the Suprem Court has in reaffirming Roe are overcome by the force of stare decisis. In particular, "[n]o evolution of legal principle has left Roe's central doctrinal footings weaker than they were in 1973. No development of constitutional law since the case was decided has implicitly or explicitly left Roe behind as a mere survivor of obsolete constitutional thinking." "An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Because the State has an interest in potential life throughout pregnancy, the State may take measures to ensure that the woman's choice is informed, as long as those measures do note unduly overburden a woman's right. Unnecessary health regulations that present a substantial obstacle to a woman seeking an abortion impose an undue burden on the right. A State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability. Dissent. Chief Justice William Rehnquist (J. Rehnquist) states that he believes Roe was improperly decided and tradition requires the Supreme Court to overturn the holding.

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 Justice Antonin Scalia (J. Scalia) believes Roe was improperly decided, as abortion should be debated at the political level, not decided by the courts. Concurrence. Justice Harry Blackmun (J. Blackmun) writes in large part to display his worry that Roe will be overturned when he steps down from the Court. Discussion. The majority takes down the rigid trimester outline of Roe and focuses more clearly on the issue of viability. The concurrence and dissents discuss openly their hopes or fears that a change in the Supreme Court's composition will open the door to overturn Roe. Notes Pensylvania using 10th amendment police power passed a statute regulating abortions. The requirements were that women had to wait 24 hours after deciding to get the abortion, receive literature that urged women to give up the kid for adoption or forget abortion all together, and inform the potential father of the child that she intended to get the abortion. Overrules the trimester system of Roe v. Wade. In 1992 the fetus can become viable at month 5 before the last trimester. Court reaffirms that women do have a fundamental right to abortion. Government can prevent a woman from getting an abortion when the fetus becomes viable.

Undue burden test is introduced in this case. A law is deemed to violate a womans fundamental right to abortion if it imposes an undue burden. Only applies to abortion. Court declared that the spousal notification was an undue burden. Determine whether is an undue burden o not. 24 hours not an undue burden gives the woman time to think before making the decision. Literature: Women are not required to read it just take it. It may be an undue burden if they were forced to read it. Spousal notification: The court said it is an undue burden. She does not have to give notification if there is a reasonable believe of physical abuse. Things that amount to undue burden are psychological in nature not economic in nature. Husband can beat up woman, beat up her children. Another Examples: Threat of physical abuse, threat of abuse to her children, threat to her property, threat to pets, threat to cut off finances. For minors if there is no judicial bypass to the requirement that they have to notify parents then it may amount to undue burden.

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Hypo Florida passes a statute that requires that before getting an abortion women have to watch an ultrasound for 10 mins. Argument for women. Woman will be coerced to forego the abortion. Is the same as with the husband situation. Is an outside force. The statute is trying to exploit the womans guilt with regard to murdering the child. Required to look at the ultrasound equals receiving literature. No time to think about it after looking at the ultrasound different from 24 hours. Floridas argument: it is just a way to help the women to make a more meaningful decision. It is better than receiving literature because when she sees ultrasound she see her own child. Intimate idea of what she is giving up.

EPC analysis Whether statute violates the EPC 14th amendment. Women are weak and cannot make a decision on their own. State relies on an explicit stereotype that women are irrational and irresponsible. Emotionally untrustworthy. Hogan: Operating from an assumption that women are irrational. Bite: Furthers a gender stereotype, or important government interest that they are inf? but the means chosen draws upon a traditional stereotype. Argument for FL. Intermediate review. Craig v. Boren health and safety. Different from VMI women were totally excluded here they will be able to get an abortion she just has to wait 24 hours. Unlike VMI state is trying to help their mental health more meaning protect their constitutional right on VMI they were excluded totally.

Maher v. Roe Brief Fact Summary. Connecticut Welfare Department limits state Medicaid benefits for first trimester abortions to those that are medically necessary. Synopsis of Rule of Law. The Supreme Court of the United States (Supreme Court) should not decide legislative policy. Facts. The State Welfare Department limits funding for first trimester abortions to those abortions that are "medically necessary." Indigent women brought suit, claiming that the statute denies them their constitutional right to an abortion. Issue. May Connecticut regulate funding for abortions in a manner that discriminates against the individuals having non-therapeutic abortions? Held. Yes. Appeals Court ruling affirmed. Justice Lewis Powell (J. Powell) notes that there is no "constitutional right to an abortion." Rather there is a constitutional right to have the government not unreasonably interfere with a woman's decision to have an abortion.
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 Connecticut may make childbirth a more attractive option for the indigent by paying for a pregnancy taken to term, but the state has put no obstacle in the way of an indigent woman procuring an abortion. The Supreme Court is in no position to review the State's policy choice. Dissent. Justice William Brennan (J. Brennan) believes that the State is forcing women to carry children to term and thus is making reproductive decisions for the women. Discussion. Understanding the majority opinion, one must understand that indigent woman have no funding for an abortion whether or not the State denies funding. As such, the State is not putting obstacles in the way of indigent women wanting abortion services. Notes State used to pay for abortions for indigent women. Will not do it anymore unless is to save the life of the woman. 14th DPC argument mad. Violated by failing to pay for abortion. No fundamental right to get money. Rational review applied. There is no violation as long as she has the right to get an abortion. There is not a fundamental right for women to have the government pay for the abortion. Geduldig. If we were to apply EPC will get rational review.

14th DPC: No state or local government shall deprive any person of life, liberty or property without due process of law. Harris v. McRae Congress passed law refusing to fund abortions for indigent women.

Parental notice and consent requirements. State can require parental notice from an unmarried minor but only if it creates and alternative procedure where the minor can obtain an abortion by getting judicial permission.

Bellotti v. Baird Concurrence. Justice John Paul Stevens (J. Stevens) concurs with the majority opinion, but writes separately to voice concern that there are not concrete guidelines for the judges standing over a request for consent for an abortion. Brief Fact Summary. A Massachusetts law required an unmarried minor woman to get consent from both her parents before procuring an abortion. If unable to do so, a superior court judge may issue a consent order. Synopsis of Rule of Law. A minor's right to an abortion may be conditioned on parental consent, as long as there is an alternative procedure provided by the State.
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Facts. Massachusetts required unmarried, minor women to obtain parental consent from both parents before allowing her to acquire an abortion. In the event that she was unwilling or unable to obtain such consent, she could petition in superior court for a determination that she is mature enough to make this decision, or even if she is not, the abortion is in her best interest. Issue. May a State condition a minor woman's right to an abortion on parental consent? Held. Yes. Court of Appeals ruling affirmed. Justice Lewis Powell (J. Powell) argued that the rights of a woman to have an abortion must be balanced with the ability of parents to make decisions for their minor offspring. The Supreme Court of the United States (Supreme Court) had previously held that an absolute parental veto over a minor's decision to terminate her pregnancy was unconstitutional. In the statute at bar, the State provides a "safety valve" of allowing a judicial determination instead of parental consent. Because the statute balances parental interest in raising their children with the unique situation of a pregnant minor seeking an abortion, the statute is constitutional. Discussion. The main point of Bellotti is the balancing of the interests of the minor woman in terminating the pregnancy and the parents in having the ability to raise their offspring. Notes Somewhat of an unnecessary case. Casey resolves this issue. Does it coerce the woman? If it does is an undue burden.

Right to refuse treatment Cruzan v. Director of Missouri Dept. of Health Brief Fact Summary. Nancy Cruzan's (Ms. Cruzan) parents sought to withhold medical treatment from their vegetative daughter, but were denied because of insufficient evidence of Nancy's intent. Ms. Cruzan's parents now bring suit on her behalf, alleging she has a liberty interest in withdrawal of treatment. Synopsis of Rule of Law. States are given wide latitude in determining how they give rights to patient surrogates. Facts. Missouri denied the withdrawal of treatment request because Ms. Cruzan's parents could not establish Ms. Cruzan's wishes regarding such withdrawal by clear and convincing evidence. Ms. Cruzan had a discussion with a friend who testified in court that she said she would not want to be on life support, but this was the only evidence of her personal wishes. Issue. Does Missouri have a legitimate state interest in tempering the liberty interests of incompetent patients? Held. Yes. Appeals Court ruling affirmed. Chief Justice William Rehnquist (J. Rehnquist) notes that unwanted medical treatment is considered a battery at common law. Hence, it is clear that there must
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be a liberty interest to refuse medical treatment. However, the treatment must be unwanted by the patient. Missouri is free to choose whether or not they will accept a surrogate for an incompetent's medical decisions, but they are free to establish the standard by which they do so. That is a legislative, not judicial choice. Dissent. Justice William Brennan (J. Brennan) dissents, arguing that the State interest cannot outweigh Ms. Cruzan's liberty interest in having treatment withheld. Concurrence. Justice Sandra Day O'Connor (J. O'Connor) concurs, emphasizing that the Supreme Court of the United States (Supreme Court) did not have to decide whether a State must abide by the decisions of a medical surrogate. Justice Antonin Scalia (J. Scalis) concurs, but writes separately to state his opinion that the federal courts have no place making substantive decisions in this area, that this police power has always been afforded to the States. Discussion. While the Supreme Court decides there is a liberty interest in requesting to withdraw treatment, the Ms. Cruzan's family is not afforded the remedy they hoped for, 284 Cruzan v. Director, Missouri Dept. of Health as the Supreme Court also ruled that Missouri has a state interest in determining how that liberty interest is to be applied in the case of an incompetent. Notes Missouri has law that requires clear and convincing evidence that the person did not want to be in life support. Not enough evidence just a friends testimony, court said that is uncorroborated evidence. There is a fundamental right under the 14th amendment to refuse treatment but Nancys right is not being violated because there is no convincing evidence to suggest that she would have refused this treatment. Legitimate government interest? Yes preservation of human life. want to make sure that it was Nancys intent. Purposes of accuracy. Means chosen rationally related, the need for clear and convincing evidence. Lee optical court can come up with reasons to say that means are related.

Right to Physician assisted suicide. Washington v. Glucsberg Brief Fact Summary. The Respondents, Glucksberg and other physicians who treat terminally ill patients (Respondents) seek a declaration that a Washington law prohibiting assisted suicide is unconstitutional.
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Synopsis of Rule of Law. Assisted suicide is not a liberty interest protected by the United States Constitution (Constitution). Facts. Physicians treating terminally ill patients are seeking a determination that the Washington state law prohibiting assisted suicide is unconstitutional. Issue. Is there a liberty interest in allowing patients the right to assisted suicide? Held. No. Appeals Court ruling reversed. Chief Justice William Rehnquist (J. Rehnquist) notes that suicide is criminalized in almost every State and every Western democracy. To hold for the Respondents would strike down hundreds of years of legal tradition. The Supreme Court of the United States (Supreme Court) had already established that there is a liberty interest in withholding unwanted medical treatment, even life support. However, in terms of suicide, there are several State interests against defining such a liberty interest: preserving human life, protecting the vulnerable and fear that this may start down the path toward involuntary euthanasia. Given that the State of Washington has compelling state interests in preventing assisted suicide, the means chosen are substantially related to that end. Concurrence. Justice Sandra Day O'Connor (J. O'Connor) concurs, but does not reach the narrow question of whether a mentally competent patient may ask for assistance in taking his own life. This is because she finds no liberty interest in suicide in general. Justice John Paul Stevens (J. Stevens) concurs noting that although the Washington statute is not facially invalid, it does not foreclose the possibility that some applications of the statute might well be invalid. Justice Steven Breyer (J. Breyer) concurs with the decision, but wishes that the formulation of the right was not "the right to commit suicide with another's assistance," but a formulation similar to "the right to die with dignity." Discussion. The Supreme Court does not decide whether it is constitutional for a law permitting assisted suicide to exist; only that it is constitutional to pass a law prohibiting assisted suicide, as there is no constitutional guarantee to assisted suicide. Notes State has a ban on Dr. Assisted suicide. This is a criminal statute. Different from Cruzan here the patient is asking doctor to use meds to end his life. Statistics showed that 90 % of the persons looking for assisted suicide were crazy. Cruzan: Is normal and sane for a person to refuse treatment. In this case the court said it is insane for a person to want to ask a doctor to help to kill himself. Court likes to look at tradition.
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Constitutional protection for sexual orientation and sexual activity. Lawrence v. Texas Brief Fact Summary. The Petitioners, John Geddes Lawrence ("Mr. Lawrence") and Tyrone Garner ("Mr. Garner") (collectively referred to as the "Petitioners"), were two adults. The Petitioners were arrested and prosecuted under a Texas state law for engaging in a consensual sexual act. Synopsis of Rule of Law. A statute criminalizing two consenting adults of the same sex for engaging in certain intimate contact, is violative of the Fourteenth Amendment of the United States Constitution (the "Constitution"). Facts. The police arrived at and entered Mr. Lawrence's home in response to a weapons disturbance. The constitutionality of the entry was not in dispute. When the police entered the home, they found the Petitioners, two adults, engaging in a consensual sexual act. The Petitioners were arrested and charged with violating Tex. Penal Code Ann. 21.06(a), which provides "[a] person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex." The statute defines "[d]eviate sexual intercourse" as follows: "(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or "(B) the penetration of the genitals or the anus of another person with an object." 21.01(1). Issue. Is a statute that makes it illegal for two persons of the same sex to engage in certain intimate contact valid? Are the Petitioners free as adults to engage in the private conduct of consensual sex in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution? Held. No, the statute is violative of the Due Process Clause of the Fourteenth Amendment of the Constitution. The Texas statute "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Yes. The Supreme Court of the United States ("Supreme Court") initially revisited its decision in [Bowers v. Hardwick], in which a Georgia statute criminalizing certain sexual conduct was upheld. Justice Anthony Kennedy ("J. Kennedy"), writing for the majority, began by criticizing the Supreme Court's framing of the issue in [Bowers], because it overlooked the extent of the liberty interest at stake. The Supreme Court in [Bowers] framed the issue as follows: "whether the Federal Constitution confers a fundamental right 288 Lawrence v. Texas

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upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time." J. Kennedy observed, the statutes at issue in these cases "seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals." Additionally, "[i]t suffices for [the majority] to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons." No showing has been made that the United States Government has a legitimate or urgent interest in curbing this type of personal choice. J. Kennedy adopted Justice John Paul Steven's ("J. Stevens) dissenting opinion from [Bowers]. It read: [o]ur prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of 'liberty' protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons. Dissent. Justices Antonin Scalia ("J. Scalia), William Rehnquist ("J. Rehnquist") and Clarence Thomas (J. Thomas) dissented. The dissenting justices criticized the majority's application of the doctrine of stare decisis. Specifically, "[t]oday's approach to stare decisis invites us to overrule an erroneously decided precedent (including an "intensely divisive" decision) if: (1) its foundations have been "eroded" by subsequent decisions; (2) it has been subject to "substantial and continuing" criticism; and (3) it has not induced "individual or societal reliance" that counsels against overturning." The dissenting justices then argue [Roe] satisfies this three-prong test. J. Thomas also drafted his own dissent in addition to joining J. Scalia's. J. Thomas described the law before the court as "uncommonly silly" and recommended that the Texas legislature repeal it. Concurrence. Justice Sandra Day O'Connor ("J. O'Connor") concurred in the judgment. However, instead of basing her opinion on the Fourteenth Amendment of the Constitution's Due Process Clause, she does so on the Equal Protection Clause in the Fourteenth Amendment of the Constitution. J. Kennedy, writing for the majority refused to base his decision on the Equal Protection Clause. J. O'Connor stressed the "Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct--and only that conduct--subject to criminal sanction."
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Additionally, "Texas' sodomy law brands all homosexuals as criminals, thereby making it more difficult for homosexuals to be treated in the same manner as everyone else. " Further, "[m]oral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause." Discussion. By this decision, the Supreme Court overruled its prior controversial decision in [Bowers v. Hardwick]. The majority stated: "[i]n the United States, criticism of [Bowers] has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions." J. Kennedy also addressed the doctrine of stare decisis and stated: "[t]he doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command." Notes Kennedy only applies rational review which almost never happens (no other case where the court has done this). If using this case just for logic say it but say that Justice Kennedy applied rational review (need to know). Can engage in heterosexual sodomy but not homosexual sodomy. Issue whether two consenting adults can engage in an activity that is intimate and private. There is a fundamental right of consentual adults to engage in sexual activities without interference of the government. ****Memorize language in page 1058. When two homosexuals are engaged in sex is another part of the relationship, is like a marriage. Go through fundamental right cases and analyze. Those cases stand for right to sexual freedom sexual intimacy. Argument against it. All of those cases have something to do with heterosexual relationships. Kind of life Moore organize themselves in an unconventional way. Is dictam, is irrelevant. Arguments against. Cases are about how you want to organize your family. Fundamental right for the government not to be unduly intrusive.

From an EPC angle. Not a suspect class. Rational review would be applied. If want with bite 3 cases. Can use Romer. They are the only group that is been precluded from engaging in sodomy in the state. Can say they are sending a message of prejudice.

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Under Plyler v. Doe. Need stigma. Immutability may be tricky. Some people say born like that others not. Complete deprivation of a very important right. Sexual freedom subsect of sexual intimacy.

Procedural Due Process 1. Fundamental right? 2. Reckless or deliberate deprivation? 3. Due Process? Substantial due process: Ask whether this is a fundamental right? Procedural Due Process: Before the government takes away your fundamental rights what procedures must they give you. Ex. Trial. Attorney if cannot afford, to cross. Deprivation of property. Liberty: Includes bill of rights plus all others. Did the government deprived you of a fundamental right in a way that is recklessly and deliberately. If it is only in a negligent manner is rational review. Did they deprive you with due process (trial, notice, administrative hearing, etc.) Daniel v. Williams Brief Fact Summary. Daniels (Petitioner) seeks damages for injuries he sustained while he was an inmate at the jail. Synopsis of Rule of Law. Negligent government action is not a deprivation of individual interest, and is not a violation of Due Process. Facts. Petitioner was an inmate at the local jail. One day, he slipped on a pillow left in the stairwell by Williams (Respondent), a correctional deputy. Petitioner claims that Respondent's negligence led to the deprivation of his "liberty" interest in freedom from bodily injury. Issue. Does negligence by a government actor equate to deprivation under the Due Process Clause? Held. No. Mere negligence does not require compensation according to the United States Constitution. Discussion. The purpose of Due Process is to protect the individual from action by the government. This refers to arbitrary actions by the government that infringes upon an individual's rights. This does not include failure to exercise due care in the maintenance of a building. Notes Section 1883 claim. Any person who has been deprived of his freedom is allowed money.
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Prisoners argument was that his fundamental right to be safe and free from unwanted danger was violated. However putting pillow was not a deliberate or reckless act. The court said that it was not reckless conscious disregard for a known risk at most was a negligent not reckless or deliberate. Just say whether the government should be responsible.

Sacramento v. Lewis Brief Fact Summary. Lewis (Respondent) was a passenger on a motorcycle that was chased by police. When the motorcycle stopped, the police cruiser did not. Respondent was hit and killed at the scene. Synopsis of Rule of Law. Government conduct that "shocks the conscience" and violates the "decencies of civilized conduct" also violates the Fourteenth Amendment. In emergency situations, the government is afforded greater leeway. Facts. A police officer was responding to a fight when Respondent and another failed to adhere to the police demand to stop. Instead of stopping, they maneuvered between police cars and sped off. The officer chose to pursue Respondent through a residential neighborhood at speeds of up to 100 mph. While trying to make a sharp left turn, the motorcycle slid and both driver and passenger were thrown. The cruiser avoided hitting the driver, but hit Respondent and threw him 70 feet. He was pronounced dead at the scene. Issue. Did the officer violate substantive due process when he caused the death of Respondent during a high-speed chase? Held. No. The police officer did not intend to harm or worsen the plight of Respondent. Discussion. The police officer was doing his job and using his best judgment at the time of the pursuit. He did not intend to kill Respondent or harm him in any way. If he had, then the conduct would be "shocking" and held to violate the United States Constitution. Notes Family filed a 1983 claim said that their son was deprived of due process. SC said that the police actions were not on purpose. However, they had other options like a helicopter. But the court said in moments of emergency police officers must be given wide discretion and the boy was the one that created the situation. Safety of the neighborhood. Immediate and imminent threat or emergency different it gives police more leeway. Not all emergencies are treated the same way it must be imminent.

DeShaney v. Winnebago Brief Fact Summary. The Petitioner, DeShaney (Petitioner), was beaten into a coma by his father. He later recovered, but was confined to an institution for the severally mentally retarded as a result of his injures. During the entire time he was being beaten, the Respondent, Winnebago County Dept. of Social Services (Respondent), was monitoring his home and paying regular visits.
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Synopsis of Rule of Law. The Due Process Clause provides no affirmative right to governmental aide. It is meant to protect individuals from state actors not other individuals. Facts. The Petitioner was born in 1979. His parents divorced in 1980 and his father was given custody of him. His father moved to Wisconsin where he remarried and later divorced. His second wife informed authorities of child abuse against the Petitioner and the Respondent interviewed the father. He denied the accusations. Then in 1982 a local hospital reported the Petitioner's suspicious injuries to the Respondent. The Respondent began monitoring the situation and visiting the child's home. The social worker noted on at least several occasions that the Petitioner appeared to be suffering from child abuse, yet the Respondent left the Petitioner in the custody of his father. Finally, in 1983 the Petitioner was admitted to the hospital and fell into a coma due to a series of hemorrhages caused by traumatic injuries to the head inflicted over a long period of time. The father was eventually convicted of child abuse. Issue. By failing to intervene to protect the Petitioner from the abuse of his father did the Respondent deny the Petitioner his liberty without due process? Held. No. A state's failure to protect someone from violence by another individual is not a violation of the Due Process Clause. Although the state may be aware of a person's situation, it is only required to protect the person when it has deprived the individual the freedom to act on his own behalf. Dissent. Justice William Brennan (J. Brennan): The state developed the social service program specifically to help children like the Petitioner. Because of this intervention and greater awareness of the situation, the state had an affirmative duty to act. Justice Harry Blackmun (J. Blackmun): The majority fails to see the duty of the state because its focuses on a rigid classification of action and inaction. Discussion. When a person is reliant upon the state as a caretaker, then the state has a greater responsibility to protect the person. In this case, had the Petitioner been a ward of 308 DeShaney v. Winnebago County Dept. of Social Services the state or in foster care, the state would have had an affirmative duty to remove him from the abusive home. State said it was kids dad who did it not a state actor. Father was the one that inflicted the injuries not the government. Court accepted argument.

Board of Regets v. Roth Brief Fact Summary. The Respondent, Roth (Respondent), was a new college professor. He was hired on a yearly contract that was not renewed. The university provided no explanation for the choice to not renew the contract. Synopsis of Rule of Law. Procedural protection of property rights inure only after one has acquired benefits. There must be a legitimate entitlement to the benefit. Facts. The Petitioner, the Board of Regents (Petitioner), had a rule that allowed college professors to acquire tenure after four years of continued employment at a university. However,
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the first years of employment are left to the discretion of the institutions. They could hire and fire every year as they chose. The Respondent taught at Wisconsin State University for the 19681969 academic year. During that year he was told that his contract was not going to be renewed for the following year. As a result he brought suit claiming this termination policy violated his Due Process rights. Issue. Did the decision to not rehire the Respondent violate his Due Process rights? Held. No. By declining to rehire the Respondent, the university did not infringe upon any of the liberties or freedoms that he has. Dissent. The university owed the Respondent an explanation for not rehiring him because everyone who applies or works for the government is entitled to this information. Discussion. The Respondent did not have property rights in the job because he had a one-year contract that specifically stated he would no longer be employed at the end of the year. No property rights exist in one's expectations. So, it was unreasonable for the Respondent to expect to gain tenure. On the other hand, the university caused no damage to his reputation, nor did it prevent him from finding another job. Therefore, his rights were not violated. No right to a job under the property clause of the due process. No reasonable expectation that would have the job or be retained.

Goss v. Lopez Brief Fact Summary. Students of the city public school system were suspended from school without a hearing either before or shortly after the suspensions. Synopsis of Rule of Law. Student's have a legitimate property right in their education, which is protected by the Due Process Clause. This right cannot be taken away without appropriate procedural hearings. Facts. The Ohio Revised Code allows a school principal to suspend a pupil for up to 10 days or expel him for misconduct. If the student is expelled he is entitled to hearing that could lead to his reinstatement. However, if the student is just suspended, there is no provision for a hearing or reconsideration of the suspension. The Appellees, Lopez and others (Appellees) were all suspended from the Columbus Pubic School System for up to 10 days, each without a hearing. Issue. Did the Columbus Public School System violate the Appellees' due process rights when it suspended each without having a hearing? Held. Yes. Ohio may not withdraw the right to an education on the grounds of misconduct absent fair procedures to determine if the misconduct has occurred. Dissent. The majority has created a new constitutional right for school aged children. They cannot be suspended without a hearing. This case removes the control of the classroom from the trained educational administrators and imposes judicial interference. Discussion. The majority provides students with a manner of protecting their right to attend school by making the administrators document the misconduct and provide the report to the student's parents. At that point, the student may choose to refute the allegation and request a hearing. This protects the rights, but also gives the administrators the freedom to discipline children as necessary and maintain order in the schools.

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Lopezs argument is that his liberty and reputation is taken away without due process of law. It is different from previous case because there are many reasons for which a professional is not retained but when a student is expelled is because it was proven that he was bad. It is assumed that he was adjudicated.

Paul v. Davis Brief Fact Summary. The Petitioner, Paul (Petitioner), as the police chief, issued a bulletin to area storeowners warning of persons known to be shoplifters. The Respondent, Davis (Respondent), was on that list. He claims his reputation was injured by this action. Synopsis of Rule of Law. Reputation alone, apart from some more tangible interests such as employment is neither liberty nor property for Due Process purposes. Facts. The Petitioner is the police chief in Louisville, Kentucky. In order to alert local merchants of potential shoplifters, he sent a memo containing the mug shots of those who had charges brought against them. The Respondent was on page 2 of the memo. He had been arraigned on the charge and pleaded not guilty. At the time the memo was published, Respondent's charge was not resolved, but the charge was later dismissed. Issue. Did the Petitioner deprive the Respondent of his liberties by designating him as an "active shoplifter"? Held. No. Kentucky law does not extend to the Respondent any legal guarantee or present enjoyment of reputation which has been altered as a result of the Petitioner's actions. The Respondent was not deprived of any liberty or property interests protected by the Due Process Clause. Dissent. This decision allows law enforcement to run unchecked and accuse anyone without repercussion. Thus, the individual is unfairly prejudiced before a trial is had based on public opinion that has been tainted by the police. Discussion. The posting of a mug shot in some stores does not deprive the Petitioner of any liberties. He is still free to go to those stores and shop. Also, the memo is not an official criminal record that would fall into the hands of future employers. So, the potential damage to his reputation is minimal. The defendants argument is that the city has stolen his reputation. Court rejects and says that the flyer just says it was charged for shoplifting not adjudicated.

Mathews v. Eldridge Brief Fact Summary. The Respondent, Eldridge (Respondent), was a disabled worker who had been receiving Social Security benefits. After a case review by the state agency responsible for monitoring his medical condition, the Respondent's benefits were terminated without a hearing. Synopsis of Rule of Law. The appropriateness and scope of a prior evidentiary hearing is determined by balancing 3 factors: (1) the private interest that will be affected; (2) the risk of mistakenly depriving an individual of his interest and (3) the value of instituting additional or substitute safeguards. Facts. The Respondent had been receiving federal disability coverage for several years when a state agency reviewed his medical condition. After reviewing his medical records and obtaining a
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psychiatric consult, the agency determined that the Respondent was no longer disabled. The agency wrote the Respondent a letter, explaining its findings and providing an opportunity for the Respondent to request time to provide additional information to prove his disability. But, after the Respondent refused to provide additional information, the agency made its final determination, which was accepted by the Social Security Administration. This led to the termination of his Social Security disability benefit. Issue. Is it a violation of the Due Process clause to discontinue a recipient's Social Security disability benefits without holding an evidentiary hearing? Held. No. An evidentiary hearing is not required prior to the termination of disability benefits. The present administrative procedures fully comply with the requirements of the Due Process Clause. Dissent. Prior to terminating benefits, a governmental agency must afford an evidentiary hearing. Discussion. This case is different than the welfare case, Goldberg, because the level of disability is something that can be ascertained through the use of expert medical opinion and written reports. Therefore, the value of an evidentiary hearing is greatly diminished. Furthermore, before a final ruling was made the Respondent had the opportunity to see the results, all reports relied upon, and provide additional proof of disability. Establishes what procedures are due. 1. How important is the procedure? Right the person has. 2. Chances government made a mistake? Burden 3. What is the governments interest? How much is it going to cost government to follow? How accurate is the procedure? And then balance the right and the cost.

First Amendment Right of Speech Congress (and state and local governments) shall not abridge the right of free speech. First amendment right of first speech was extended to states and local governments by Gitlow v. NY (1925) A Proper Time Place Matter regulation does not punish people or opinion or matter but wants to regulate the secondary effect of the speech. Also provides a person a reasonable alternative to TPM to say the same thing. The secondary effect is the important government interest. Means chosen related if yes can the speaker say the same thing in a different TPM.

Is Statute/Law Constitutional? Content Neutral?

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If Yes: If Not: Subject Matter Discrimination. Strict Scrutiny. Proper TPM Regulation. Intermediate Review everything passes.

View point discrimination. Strict Scrutiny. Ex. Cannot criticize the dean. View point crushes one point of view while allowing the other one.

Turner v. Federal Brief Fact Summary. Federal legislation requires cable television companies to devote a portion of their channels to local programming. Synopsis of Rule of Law. It is unconstitutional for the government to place on burdens on speech because of its content. Laws that distinguish between types of speech based on the ideas or views expressed are content-based and subject to strict scrutiny. Facts. The Cable Television Consumer Protection and Competition Act of 1992 (the Act), required cable companies to devote a certain number of their channels to the transmission of local broadcast television stations. This Act limits cable companies by reducing the number of channels that they control and it makes it more difficult for the companies to compete for the remaining channels. Issue. Is this 'must-carry' mandate a violation of the freedom of the speech or press? Held. No. This law does not impose burdens or confer benefits based on the content of the speech. The only burden is associated with the number of channels a cable company can offer. Any government regulation that limits speech because of its content is subject to the "most exacting scrutiny while those that are unrelated to content are subject to an intermediate level of scrutiny." Dissent. The interest in diversity of programming is not content-neutral. The intent of the regulation is to continue to provide local access to news and community information. Although this goal is not harmful it still does not excuse the need for strict scrutiny. Concurrence. Content-neutral regulations are not subject to strict scrutiny. Discussion. The majority justifies its decision by weighing the impact of forcing the cable systems to carry local stations against the purpose of the requirement. The regulation does not force an opinion on to the viewing public or limit access to certain views. Therefore, it is content-neutral and constitutional. No view point discrimination. Not giving the channel on the basis of a view point but just to a local program. Secondary effects the government is trying to level the playing field so that stations that have no money can compete and have air time. There is another place for a multimillionare company station to find space. Important government interest is to increase diversity. Substantially related there is another time and manner for turner to broadcast.
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Boos v. Berry Brief Fact Summary. The Petitioner, Boos (Petitioner), wants to display signs in front of the embassies in Washington, D.C. There is a local statute that prohibits such displays if they are negative. Synopsis of Rule of Law. Content-based restriction on political speech in a public forum is subjected to strict scrutiny. To be constitutional, the regulation must be necessary to serve a compelling state interest that is narrowly drawn to achieve that end. Facts. Washington, D.C. has a code that prohibits people from displaying signs within 500 feet of a foreign embassy if the signs will bring the foreign government into "public odium" or "public disrepute". The Petitioner wants to display a sign in front of the Soviet embassy that reads, "RELEASE SAKHOROV." Issue. Does this restriction violate the First Amendment constitutional right to free speech? Held. Yes. The display statute regulates speech based on it potential impact. It prohibits political speech and is clearly content-based. Protecting foreign dignitaries from insults is not a compelling governmental interest in support of a content-based regulation. Discussion. This regulation focuses on what a picket card would say. It discriminates between the types of speech because a picket sign regarding employment disputes would be allowed while political opinions that are negative are prohibited. Cannot display sign if it tends to bring the foreign government into odium or disrepute. Not view point based because it does not prohibit a particular viewpoint. Subject matter discrimination because any subject matter that would bring the country into disrepute is not allowed. Compelling government interest trying to protect the persons dignity. Court refused. Subject matter neutral means that the government cannot regulate speech based on the topic of the speech.

City of Renton v. Playtime theaters Brief Fact Summary. The Petitioner, City of Renton (Petitioner), passed a zoning code restricting the location of adult movie stores within the city. Synopsis of Rule of Law. A regulation that is content-based on its face may be considered content neutral if it is motivated by a permissible content-neutral purpose. Facts. The Petitioner's zoning code prohibited adult movie theaters from locating themselves within 1,000 feet of any residential area, church, park or school. However, they were not completely banned from the city. Issue. Is this zoning ordinance a violation of First Amendment freedom of speech rights of the Respondent, Playtime Theaters, Inc. (Respondent)? Held. No. The Petitioner had a substantial interest in avoiding the secondary effects of the adult stores and also allows the stores to be located in other areas of town. Thus, it is a constitutional content-neutral regulation. Dissent. The ordinance places restrictions on establishments based on the content of the expression within it. Therefore, this is a content-based regulation.

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Discussion. Because the ordinance does not ban the adult theaters completely, it is not contentbased. As a content-neutral regulation it is subject to the time, place, manner analysis where a regulation is constitutional as long as it serves a substantial governmental interest and does not unreasonably limit alternative avenues of communication. Is the secondary effect the speech being regulated. Obscene pornography has no 1st amendment protection. Not obscene porn is protected however does not get a high amount of respect. Governments arguemtn is to protect the urban life, safety of the children, aesthetic value of the city. There is a reasonable alternative for the theaters to show porn.

City of Erie v. Paps AM p-1235. No public nudity permitted. City calls it a TPM regulation. Citys argument is that they do it to protect girls from being assaulted. The citys argument that they are trying to prevent the secondary effects of nude dancing makes the law content-neutral.

Cincinatti v. Discovery Network p-1235. Law prohibited the use of newsracks on public property for the distribution of commercial handbills. The citys argument was that they were trying to regulate the the secondary effect of safety and aesthetics. The court refused because the same newsracks were used to distribute newspapers. Is content based discrimination. Looks like SM discrimination. The court rejects the citys argument. If statute treats 2 similar things differently there is probably SM discrimination. Here they are treating commercial speech differently from the newspapers.

National Endowment for the arts v. Finley Brief Fact Summary. The Respondent, Finley (Respondent), was denied a federal grant to fund her performance art after the Petitioner, National Endowment for the Arts (Petitioner), determined that it might offend the general standards of decency. Synopsis of Rule of Law. A law is facially valid as long as it does not suppress disfavored viewpoints. Facts. The Petitioner is a federal agency that provides funding for the arts. Applications for these funds are reviewed by advisory panels that inform the Petitioner of their recommendations. The Petitioner has the ultimate authority to grant funding for projects, but cannot approve anything the advisory council rejects. In 1989, two provocative works prompted public controversy leading to the reevaluation of the project selection process. As a result, Congress adopted a law that made the Petitioner consider the "general standards of decency and respect for the diverse values of the American public." Issue. Is the new law invalid on its face and therefore a violation of the First Amendment right to free speech?
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Held. No. This law is constitutional as it does not interfere with freedom of speech rights and it is not overly vague. Dissent. The "decency and respect" inclusion criteria makes this a view-point based decision that should not be exempted from the general rule that makes content-based laws unconstitutional. Discussion. This law only requires the Petitioner to consider factors of decency. It does not mandate that all explicit works be denied federal grants. Therefore, it is not an unconstitutional content-based rule. There is no 1st amendment right to money to express yourself. Because this organization has a limited amount of funding they can give it to anybody they want. There is content discrimination because they decided what art merits the money but it will still be subject to intermediate review. When money is the issue they will have to make choices and discriminate because money is limited. Important government interest to discriminate on the content matter there is limited funding. Therefore they have to make value choices. Government can engage in content discrimination if it is governmental money and will still be subject to intermediate review.

United States v. American Library Association Brief Fact Summary. An act of Congress conditioned the receipt of federal funds by public libraries, on those libraries installing filters on their computers to block children's access to certain material. Synopsis of Rule of Law. "[I]t is entirely reasonable [ ] [for libraries to] exclude certain categories of content, without making individualized judgments that everything they do make available has requisite and appropriate quality." Facts. Congress enacted the Children's Internet Protection Act (the "Act") to combat the availability of internet pornography in public libraries. The Act conditioned the receipt of federal funds by public libraries on installing software that will block pornographic images. The district court held these provisions violated the library patrons' First Amendment constitutional rights. Issue. Does the Act violate the First Amendment of the United States Constitution ("Constitution")? Held. The plurality first observed that "Congress has wide latitude to attach conditions to the receipt of federal assistance to further its policy objectives but may not 'induce' the recipient 'to engage in activities that would themselves be unconstitutional' " The court compared a library's use of judgment in not allowing pornography on its shelves and choosing which works it wants in its collection, to a library filtering internet material to stop the flow of pornography. This is the traditional role of a library. Further, the court recognized libraries cannot segregate item by item all pornographic material on the internet. As such, "it is entirely reasonable for public libraries to reject that approach and instead exclude certain categories of content, without making individualized judgments that everything they do make available has requisite and appropriate quality."

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 The plurality criticized the dissent's argument that filters a have a tendency to "overblock", meaning block material that is constitutionally protected and should be available to the public. The plurality said this problem could be remedied by disabling the filtering software. All a library patron has to do is ask the librarian to disable the filter. The court also rejected the argument that library patrons will not ask for the filters to be disabled because they are embarrassed. The plurality found the constitution does not provide a right to the acquisition of information, without the risk of embarrassment. "Because public libraries' use of Internet filtering software does not violate their patrons' First Amendment rights, CIPA does not induce libraries to violate the Constitution, and is a valid exercise of Congress' spending power." 323 United States v. American Library Association, Inc.

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Dissent. Justice John Paul Stevens ("J. Stevens") filed a dissenting opinion, arguing that the Act is an unconstitutional restraint on speech. J. Stevens criticized the "fundamental defects" in the filtering software. For example, "the software relies on key words or phrases to block undesirable sites, it does not have the capacity to exclude a precisely defined category of images." The software both "underblocks" and gives parents a false sense of security and "overblocks", which blocks constitutionally protected speech. As to the "overblocks", J. Stevens observed "[n]either the interest in suppressing unlawful speech nor the interest in protecting children from access to harmful materials justifies this overly broad restriction on adult access to protected speech." J. Stevens concluded that the statute resulted in "a significant prior restraint on adult access to protected speech." Additionally that "it impermissibly conditions the receipt of Government funding on the restriction of significant First Amendment rights." Justice David Souter ("J. Souter") and Justice Ruth Bader Ginsburg ("J. Ginsburg") filed a dissenting opinion agreeing with J. Stevens' dissenting opinion, but also arguing that the Act imposed "an unconstitutional condition on the Government's subsidies to local libraries for providing access to the Internet." Additionally, J. Souter felt "the blocking rule [is] invalid in the exercise of the spending power under Article I, 8: the rule mandates action by recipient libraries that would violate the First Amendment's guarantee of free speech if the libraries took that action entirely on their own." The question for J. Souter, which he answered in the negative "[wa]s whether a local library could itself constitutionally impose these restrictions on the content otherwise available to an adult patron through an Internet connection, at a library terminal provided for public use"? Further, "[a] library that chose to block an adult's Internet access to material harmful to children (and whatever else the undiscriminating filter might interrupt) would be imposing a content- based restriction on communication of material in the library's control that an adult could otherwise lawfully see." In other words, an act of censorship. J. Souter also faulted the pluralities comparison of internet blocking with libraries choosing which works to include in their collections. Concurrence. Justice Anthony Kennedy ("J. Kennedy") filed a concurring opinion recognizing that based on the facial challenge before the Supreme Court of the United States ("Supreme Court"), there is not much of a case if the library administrators unblock certain sights without much delay. If some libraries did not have this capability, an as-applied challenge may be appropriate. J. Kennedy also recognized the compelling interest involved in this case "protecting young library users from material inappropriate for minors." Justice Stephen Breyer ("J. Breyer") filed a concurring opinion advocating the application of a form of heightened scrutiny by "examining the statutory requirements in question with special care". Neither a rational basis review nor a presumption as to the statutes constitutionality was appropriate. However, strict scrutiny was too strict of a standard for this analysis. J. Breyer advocated asking whether "the harm to speech-related interests is disproportionate in light of both the justifications and the potential alternatives." Additionally the court "has considered the legitimacy of the statute's objective, the extent to which the statute will tend to achieve that objective, whether there are other, less restrictive ways of achieving that objective, and
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ultimately whether the statute works speech-related harm that, in relation to that objective, is out of proportion." Discussion. It is important to recognize that there is no majority opinion in this case, only a plurality. As such, it is interesting to read the dissenting and concurring opinions and see what the various justices agree and disagree about. Cite for final together with previous case. Not content neutral prohibits all pornography. Subject matter discrimination but court applies rational review.

Vagueness and Overbreadth If any of the two are found the law is determined to be invalid on its face. No test required. Undue Vagueness: Is vague if a reasonable person cannot tell what speech is permitted and which speech is prohibited. Disturbing the peace ordinances are vague but courts let it slide because there is no other way to write the same thing. Use Coates and Jesus case for substantial overbreadth and undue vagueness.

Coates v. City of Cincinnati The ordinance prohibits that people conduct themselves in an annoying manner in the streets. No standard of conduct is specified what is annoying. The word is unduly vague a reasonable person cannot determine what it is. This statute is scaring people into not exercising their first amendments rights. In the final look also for positive adjectives. Words going in the positive direction. Ex. positive, respectful, useful, intelligent. Etc.

Substantial overbreadth: Prohibits more speech than what the statute is permitted to prohibit. Schad v. Borough of mount Ephrain There is an ordinance that prohibits all live entertainment. Trying to prohibit nude dancing. However too overbroad since it prohibits more than what the constitution allows to prohibit.

The person to whom the law could be constitutionally applied can make the argument that is unconstitutional as applied to others. Board of airport commissioners of LAX v. Jews for Jesus
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The airport passed a law that prohibited all first amendment activities. Crazy law look for that in the final. May ask in the final to re-write the law. In order to do that think what it is that you want to prevent. Harassment, people detained by non-officials, undue interference, solicitation. Unlawful for non-oficials of the airport to unduly detain or solicit money in the airport. TPM regulation. Say that trying to regulate the secondary effects. Do not want to prevent people from asking money but want to prevent people from being unduly detained. Can ask for money in other place where the issue of time is not as essential as in an airport.

City Council v. Taxpayers for Vincent Unlawful to put flyers in lampposts. Not overbreadth. Trying to prevent littering (TPM) the aesthetic value of the city. Regulating second effect not the speech in itself. Different manner and time to do that. No 1st amendment right to engage in trespass, vandalism, or criminal mischief. Important government interest repeat: Prevent criminal mischief, trespass etc. means related yes. There is a reasonable alternative passing out the flyer but in a different TMP.

New York v. Ferber Child porn prohibited. It means that the kid will be abused. Does not get 1st amendment right.

Prior Restraints: Government system or rules that require speaker to get permission before he or she can speak. Taylor made laws just for you. Collateral bar rule: If you break a prior restraint which is basically a judge telling you what not to do then cannot get out of jail. Nor argument possible as long as all procedural due process and notice is complied with by the judge then there is no way to get out of jail by saying that it is unconstitutional. Presumption is against prior restraints. They can be constitutional as long as they meet certain requirements: o Cannot suffer from undue vagueness or substantial overbreadth. o Or give too much discretion to hand out permits or approve speech. If there is too much discretion given the governmental official can indulge in view point discrimination.

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If too much discretion is given then no, will have to re-write for the final and take out the part that gives too much discretion.

Near v. State of Minnesota Brief Fact Summary. The Petitioner, Near (Petitioner), was prohibited from producing any newspaper because he published an article criticizing the local police. A 1927 state law prohibited such publishing activity that was described as "malicious, scandalous and defamatory." Synopsis of Rule of Law. The government may not censor expression in advance either legislatively or judicially. Facts. In 1927, Minnesota passed a law prohibiting the publication of any newspaper, periodical or magazine that was "malicious, scandalous and defamatory or obscene, lewd and lascivious." Anyone who distributed such materials was prohibited from continuing production and was charged with creating a public nuisance. In late 1927, the Petitioner published several article in The Saturday Press what indicated that the local law enforcement was not "energetically" pursuing the head of the local mob. The Petitioner was then forced to stop production, as he was convicted of producing a public nuisance. Issue. Is a court order enjoining a publisher from producing a magazine a prior restraint in violation of the Fourteenth Amendment rights of freedom of the press? Held. Yes. To allow the court to enjoin the activity without providing the publisher an opportunity to show that the matter is true, is a step towards total censorship of the press. Discussion. The press is allowed to publish articles that may criticize the government or other actors, as long there is an element of truth to the publication. The government cannot prevent unflattering reports from being circulated simply because it looks bad. In other words prior restraints are not appropriate. However, if the item relates to sensitive issues such as national security or certain wartime efforts, the government may impose a communication blackout. Government has discretion to enjoin if certain things. The prior restraint gives too much discretion to the government. Struck down on its face no test.

Nebraska v. Stuart Brief Fact Summary. The Respondent, Stuart (Respondent), ordered a pretrial gag order on all press coverage of a murder trial. Synopsis of Rule of Law. Gag orders are constitutional only when there is clear and present danger that pretrial publicity would threaten a fair trial, alternative measures are inadequate and an injunction would protect the accused. Facts. The Respondent is a State District Court Judge who ordered the press to not report any of the accounts of confessions or facts that were "strongly implicative" in a murder trial. Issue. Is this gag order violative of the constitutional guarantee of freedom of the press? Held. Yes. The government has failed to meet the burden of showing that the trial will definitely be compromised by the public dissemination of pretrial proceedings.

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Discussion. There must be a balance between the rights of the press to inform the public and the individual's right to a fair trial. Pretrial coverage will influence the public perception of the evidence, but there are other procedural safeguards to protect a defendant's rights. Gad orders. Judge made rules preventing newspapers to talk about what is going on on the courtroom in order to protect 6th amendment right of fair trial. SC struck down the gag order is in violation of 1st amendment free press. SC said there were other alternatives. Move trial to another place, postpone the trial, lawyers can carefully question the prospective jury in order to determine whether they are biased or not, judge can offer instructions. Virtually all gag orders will be stricken down if the purpose is to offer a fair trial.

Another classic restraint is when the government requires a license or permit in order for the speech to occur. Lovell v. City of Griffin Need permission to pass out literature, adds, etc. too much discretion given to the city manager. Was struck down on its face. If you have parameters in place that the person has to follow then they might have less discretion.

Types of unprotected and less protected speech Clear and present danger speech has no constitutional protection. Three tests. Abrams Test: Dangerous tendency. It is reasonable to think and likely that it will cause people to do unlawful things. There is a clear and present danger. Dennis Test: Gravity of harm outweighs likelihood. The gravity of the harm discounted by its improbability. If the speaker advocates something so crazy and dangerous it does not matter if people will pay attention or not. Brandenberg Test: 1. Advocacy of imminent unlawful conduct and 2. Speech likely to succeed. Use this test for the final. Schenk v. United States Brief Fact Summary. The Petitioner, Schenck (Petitioner), distributed mailers that opposed the draft during World War I. Synopsis of Rule of Law. When speech presents a clear and present danger of bringing about harm that Congress has the power to prevent, restrictions on such speech are constitutional. Facts. The Petitioner sent mailers to all men that were drafted into the war. The flyer consisted of 2 pages that implored the draftees to "Assert Your Rights" and standup against the draft. The
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Respondent, the United States (Respondent), charged the Petitioner with conspiracy to violate the Espionage Act of 1917 by encouraging insubordination in the military. Issue. Is the Petitioner's expression of his opinion of the draft protected speech under the First Amendment of the United States Constitution (Constitution)? Held. No. Because the nation is at war these types of expression encouraging disruption of wartime activities cannot be tolerated. Discussion. No actual obstruction of military recruiting resulted from the Petitioner's actions. However, the circumstance of the times is what makes this unprotected speech. It was equated to yelling, "Fire!" in a crowded theatre. It was meant to induce panic and disrupt the security actions of the nation. Abrams case is almost the same. But read it.

Dennis v. US. P-1337. Dennis v. United States Citation. 341 U.S. 494 (1951). Brief Fact Summary. The Petitioner, Dennis (Petitioner), was charged with violating the Smith Act (the Act) by organizing the Communist Party of America. Synopsis of Rule of Law. Immediate immanency is not required for a showing of clear and present danger. Facts. The Act makes it unlawful for a person to knowingly or willfully advocate overthrowing or destroying the Respondent, United States (Respondent), or to print, publish or distribute printed material advocating such an overthrow. It is also unlawful to organize or help organize a group to overthrow the Respondent. The Petitioner was charged with organizing the Communist Party of America and knowingly and willingly advocating the destruction of the Respondent. Issue. Does the Act violate the 1st Amendment? Held. No. The Act does not inherently violate the First Amendment of the United States Constitution (Constitution) either as applied or construed in this case. Dissent. The Act violates the First Amendment of the Constitution. Justice Hugo Black (J. Black): The clear and present danger test does no more than set a minimum compulsion of the Bill of Rights. Justice William Douglas (J. Douglas): There is no evidence that there is clear and present danger of harm from the organization of this political group. Concurrence. Deference must be given to the legislature and its intent in passing such a law. The courts are not justified in second-guessing or limiting the power of the legislature. Discussion. The purpose of the law is to protect the government from violent overthrows, which is well within the purview of Congress to legislate. The government is not rendered helpless by the Constitution to defend itself from revolution. No mention of specific dates methods etc. however what he is advocating is deranged and so scary that it does not matter whether anybody pays attention to him or not. Advocates violence. Threat that entails violence.
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Brandenburg v. Ohio Brief Fact Summary. The Petitioner, Brandenburg (Petitioner), a Ku Klux Klan leader, was convicted of advocating unlawful activity in violation of the Respondent, Ohio's (Respondent), Criminal Syndicalism statute. Synopsis of Rule of Law. Speech will be protected as long as it does not incite imminent harm to others. Facts. The Petitioner invited a news reporter and film crew to join him at a Klan rally in rural Hamilton County. A film shows the Petitioner speaking at the rally and the existence of pistols, rifles and shotguns at the rally. A second film showed a rally with participants gathered around a large burning cross, with the Petitioner making references to "revengeance." Issue. In the absence of an immediate threat of harm, is this restriction a violation of the Petitioner's First Amendment constitutional rights? Held. Yes. On its face, this statute prohibits assembly with others to advocate a described action. Discussion. A conviction for incitement will be upheld only if there is (1) imminent harm; (2) a likelihood of producing illegal action and (3) an intent to cause imminent illegality. Threat to black and jews. If the federal government does not give KKK and white men some respect there might be some vengeance taken. Even though he use might the danger is imminent and likely to succeed. Notes: Tests are used to determine whether there is a clear and present danger. Have to argue for the test that you want and then apply the test.

No Constitutional protection for: Clear and present danger. Obscenity Child pornography Hostile audience Fighting words Group libel

Chaplinsky v. New Hampshire Brief Fact Summary. The Petitioner, Chaplinsky (Petitioner), was arrested for yelling offensive words to a city official while on the street. Synopsis of Rule of Law. "Fighting words" are an unprotected form of speech. Facts. The Petitioner was distributing literature about his religious sect one afternoon on a street corner. Locals complained that the Petitioner was denouncing all religion as a "racket." Fearing a riot would ensue, a police officer escorted the Petitioner to the local police station. On the way there, the Petitioner encounter the City Marshal and declared that he was a, "God damned
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racketeer" and "a damned Fascist." The Petitioner was charged with violating state law that made it a crime to offend or annoy another while on a public street. Issue. Does this law infringe upon Petitioner's First Amendment constitutional rights? Held. No. The statute bars words that are likely to cause a breach of the peace. This was narrowly drawn to punish specific conduct within the state power to control. Discussion. Fighting words include any situation likely to cause a violent response against the speaker and where the insult is likely to inflict immediate emotional harm. This is the case to cite for fighting words. Fighting words are likely to cause a man of common intelligence to engage in a fight. These words form no essential part of any exposition of ideas, and Whatever social value they may have is outweighted by their harm to order and morality. Have to be face to face. Assumption that there is no time to cool off. Has to be of a personal nature, which changes depending on who the person is. This is the first and last time that the court used fighting words.

Cohen v. California page 1348 Brief Fact Summary. The Petitioner, Cohen (Petitioner), was convicted of maliciously and willingly disturbing the peace by wearing a jacket with his opinion of the draft on the back. Synopsis of Rule of Law. Profanity is neither obscene nor is it equivalent to "fighting words." Facts. The Petitioner was against the Vietnam War. To express the extent of his feeling he wore a jacket that read, "Fuck the Draft" on the back while walking through the Los Angeles County Courthouse. Because of this action, he was charged and convicted of violating a section of the California code that prohibited "malicious and willful disturbances of the peace or quiet of any person or neighborhood by offensive conduct." Issue. Is the use of profanity a protected expression? Held. Yes. The state may not make a simple display of profanity in a public area a criminal offense. Dissent. This speech fell within the standard of Chaplinsky. Discussion. If the public was confined to the area and exposed to the profanity, then the state would have a legitimate interest in protecting it. But, here the audience was free to look away if they felt offended. They were not "captives" forced to look at the jacket. Is not of a personal nature. Courts have moved away from fighting words.

Gooding v. Wilson Citation. 405 U.S. 518 (1972). Brief Fact Summary. The Appellee, Wilson (Appellee), was convicted of using opprobrious words and abusive language towards police officers.

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Synopsis of Rule of Law. A statute must be carefully drawn and construed to punish only unprotected speech and not be applied to protected expression. Facts. The Appellee was convicted of using abusive language towards another when he made statements such as "You son of a bitch, I'll choke you to death." "If you put your hands on me again I'll cut you to pieces." At the time these comments were made the Appellee was being moved away from an army induction center where he was protesting the war. Issue. Is the Georgia law overly broad and unconstitutional? Held. Yes. The definitions of the words used in the statute include non-fighting words as well as fighting words. Therefore, this statute is overly broad and unconstitutional as written and applied. Dissent. The statute is constitutional. Justice Warren Burger (J. Burger): A statute should be held unconstitutional on its face not because of its previous application. Justice Harry Blackmun (J. Blackmun): The statute is not overbroad and common sense tells us that the name calling engaged in by the Appellee is a form of "fighting words." Discussion. The majority relies on the definitions of the words used as a common dictionary defines them. Because the words include those that are meant to disgrace the listener or that are simply harsh words, the statute is not narrowly construed. Statute determined to be unconstitutional because it suffered from substantial overbreadth. Different facts not face to face.

Profanity: The profanity attaches to its host and parasites from it and it will become the host itself. Will receive the same level of protection as the host. R.A.V. v. City of St. Paul, Minnesota Citation. 505 U.S. 377 (1992). Brief Fact Summary. The Petitioner, R.A.V. (Petitioner), is a juvenile accused of burning a cross in his neighbor's yard. This was done in violation of a city ordinance that prohibits such action. Synopsis of Rule of Law. Prohibition of the use of fighting words must be uniform across all topics or else the law is an unconstitutional restriction of speech. Facts. In 1990, the Petitioner and some other juveniles made a cross out of table legs. They placed it in the yard of a black neighbor and set it on fire. The Respondent, St-Paul, Minnesota (Respondent), chose to prosecute the Petitioner under the Bias-Motivated Ordinance, which made it a misdemeanor to place a burning cross on public or private property, when someone knows or should know that this will result in anger by the victim. Issue. Is the ordinance substantially over broad and unconstitutionally content-based? Held. Yes. The ordinance is unconstitutional on its face. It is a content-based ordinance that does not fall into an exception of the First Amendment of the United States Constitution. Concurrence.

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 Justice Byron White (J. White): The ordinance is unconstitutional because it is overbroad. Justice Harry Blackmun (J. Blackmun): The ordinance goes beyond regulating fighting words. Discussion. The ordinance prohibits fighting words only as they apply to cases of racial, gender or religious harassment. Other fighting words that are directed at political affiliation or homosexuality are allowed. Because of this prohibition of speech in particular areas, while others are unrestricted, is why the ordinance is held unconstitutional. Cannot use words against a race but can against racist people. Is point view discrimination. If engages in any of the speech can get out by saying claiming it was point view discrimination.

Feiner v. New York Citation. 340 U.S. 315 (1951). Brief Fact Summary. The Petitioner, Feiner (Petitioner), was convicted of disorderly conduct for refusing to stop giving a speech on a public sidewalk once the crowd started to get a little rowdy. Synopsis of Rule of Law. When there is clear and present danger of a riot, then the police may restrict speech. Facts. The Petitioner was addressing a group of 75 persons gathered on the sidewalk. The original purpose of the speech was to invite listeners to attend a meeting, but he also made derogatory marks towards some political officials. Later, a neighbor complained to the police and 2 units were dispatched to the scene. At that time people were spilling into the street and disrupting traffic. One officer asked the Petitioner to stop talking, but he refused several times and was eventually arrested. Issue. Was the disruption of the speech to prevent a riot constitutional? Held. Yes. The conviction should not be reversed because there was great potential for a riot and the Petitioner defied the police request. Dissent. The facts do not show that a riot was imminent. This is just a convenient way for police to censor unpopular viewpoints. Discussion. A person does not have the right to free speech when it will result in a riot. The Petitioner intended to incite the public with his words. Therefore, the police had a legitimate interest in maintaining the peace and order of the community that outweighed the Petitioner's freedom of speech. Dumb case. Has not being used since. Hostile audience. If speaker riles up an audience against himself then he created a hostile audience and do not have right to speak.

Beauharnais v. Illinois
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Citation. 343 U.S. 250 (1952). Brief Fact Summary. The Petitioner, Beauharnais (Petitioner), was convicted of violating a state statute that outlawed the dissemination of printed racist materials. Synopsis of Rule of Law. Racist speech is not protected speech. A state may regulate this type of speech to maintain the peace and order. Facts. The Respondent, Illinois (Respondent), has a criminal code that expressly prohibits the publishing or presentation of any racist materials by any person, corporation or organization. The Petitioner was charged with violating this code when he distributed leaflets complaining of the "encroachment, harassment and invasion of white people their property, neighborhoods and persons, by the Negro." He also attached a membership application for the White Circle League of America, Inc. Issue. Does the protection of "liberty" in the Due Process Clause prevent a state from punishing libel towards a group? Held. No. Libel is in the same class as fighting words. The state had a legitimate purpose for forbidding the distribution of racist materials. Dissent. This is a content-based law that should be held to strict scrutiny instead of the weak rational basis analysis. Discussion. Libel is regarded as a close relation to fighting words because of the history of racism experienced by the state. The effects of racist words caused riots and violence throughout the state. Therefore, the state is justified in prohibiting such activity in order to maintain the peace. If say something particularly inaccurate about a group then not entitled to protection. Fear of a riot. Which is why the court used this.

Miller v. California Brief Fact Summary. The Petitioner, Miller (Petitioner), was convicted of violating the section of the California state code prohibiting the distribution of obscenity. Synopsis of Rule of Law. Obscenities are works when taken as whole appeal to the prurient interest in sex, which portrays sexual conduct in a patently offensive way, and which does not have serious literary, artistic, political, or scientific value. Facts. Petitioner mass mailed advertisements for "adult" materials for sale. The recipients of the mailer had in no way indicated that they were interested in receiving such material. A state jury convicted him by characterizing the material as obscene. Issue. Was the advertisement for obscene material? Held. No. States may regulate materials that are patently representations of sexual acts or descriptions of masturbation, excretory functions, and lewd exhibition of genitals. Only those materials that depict "hardcore," patently offensive sexual conduct are exempt from 1st Amendment protection. Discussion. The Supreme Court of the United States has traditionally recognized the state's interest in protecting its citizens from offensive and obscene materials. This case specifically

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defines obscenity based on a local community standard. Basically, all hardcore pornography is considered obscene. In order to be considered obscene the material must be patently offensive. Appeal to prurient. The work taken as a whole must lack any serious artistic, political, literary, or scientific value. National standard. Porn=exotic speech. Is not offensive or obscene. Child porn: no 1st amendment right. It only regards to visual matters. Child actors must perform. Rationale is that physically abusing children. No right to abuse at the expense of child abuse.

The only protection is from view point discrimination (Post RAV v. St. Paul) it means that the only defense is from view point discrimination to the following: Fighting words Clear and present danger Obscenity (Also right to have it at home Stanley v. Georgia) Child porn Group libel (Brauharnais v. Illinois) Hostile Audience (Feiner v. NY) Communication in furtherance of a criminal conspiracy. When using speech to attempt a criminal conspiracy.

Hierarchy of Speech Political speech. Commercial Artistic Social speech Non-obscene porn. Not child porn. If profanity is in front of a captive area no protection.

Cohen v. California. Case in 1408. Brief Fact Summary. The Petitioner, Cohen (Petitioner), was convicted of maliciously and willingly disturbing the peace by wearing a jacket with his opinion of the draft on the back. Synopsis of Rule of Law. Profanity is neither obscene nor is it equivalent to "fighting words."

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Facts. The Petitioner was against the Vietnam War. To express the extent of his feeling he wore a jacket that read, "Fuck the Draft" on the back while walking through the Los Angeles County Courthouse. Because of this action, he was charged and convicted of violating a section of the California code that prohibited "malicious and willful disturbances of the peace or quiet of any person or neighborhood by offensive conduct." Issue. Is the use of profanity a protected expression? Held. Yes. The state may not make a simple display of profanity in a public area a criminal offense. Dissent. This speech fell within the standard of Chaplinsky. Discussion. If the public was confined to the area and exposed to the profanity, then the state would have a legitimate interest in protecting it. But, here the audience was free to look away if they felt offended. They were not "captives" forced to look at the jacket. Cannot maliciously and willfully disturb the peace. Not declared unconstitutional. Think whether person is entitled to the speech. No imminence of the idea. Not obscene has to be of an exotic nature. Political speech criticism of the draft. Profanity becomes the host to the political speech then is protected.

FCC v. Pacifica Foundation Brief Fact Summary. The Respondent, Pacifica Foundation (Respondent), broadcast part of a comedy show that listed the "dirty words" that are not to be used on the radio. The Petitioner, the Federal Communication Commission (Petitioner), issued a declaratory order warning Respondent of potential sanctions. Synopsis of Rule of Law. Broadcasts of indecent material can be regulated according to the context of the broadcast and on a case-by-case basis. Facts. The Respondent is the parent company of a New York City radio station that aired segments of George Carlin's 12-minute monologue on "dirty words." This included a listing of the words that are not to be used on public airwaves. Then, the words are repeated through common speech. This monologue was aired at 2 p.m. on a Tuesday in 1973. A listener wrote to the Petitioner complaining that his young son overheard the words while they were driving in the car. The Respondent was given a written warning and threatened with sanctions if anyone else complained. Issue. Can radio broadcasts be regulated for language that is indecent, but not obscene? Held. Yes. There is a proper public interest in protecting listeners from indecency over the airwaves. Discussion. The government may regulate the time of day of such broadcasts or prohibit the use of certain words according to the context in which they are used. This ruling considers the broadcast to be an intrusion into the public space and classifies it as a nuisance. Cohen: People at court are bound to see and hear things that are bad. Less expectation of privacy. Political speech. No expectation of privacy.

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Pacifica: when driving at 2 oclock there is a greater expectation of privacy. Reasonable expectation that will not hear something like that. Utterance of words at most is artistic or social criticism. He is a comedian enterntainer less protection. Welfare of the child. Time of day is important. Sable Communications of California, Inc. v. Federal Communications Commission Brief Fact Summary. The Petitioner, Sable Communications of California (Petitioner), implemented "dial-a-porn" as a business and was charged with violating a federal statute prohibiting obscene telephone messages. Synopsis of Rule of Law. Sexual expression that is indecent, but not obscene is protected by the First Amendment of the United States Constitution (Constitution). Facts. In 1983, the Petitioner started a porn phone line in the Los Angles area. Special phone lines were installed that could handle large volumes of calls. The phone company charged users a special fee for dialing these numbers. The fee was spit between the phone company and the Petitioner. Issue. Is it constitutional for the Respondent, the Federal Communications Commission (Respondent), to ban indecent and obscene interstate commercial telephone messages? Held. It is constitutional to ban obscene telephone communications, but this regulation is not narrowly construed. Discussion. This decision is distinguishable from Pacifica because of the medium of communication. Where the airwaves may permeate the privacy of a home, the dial-a-porn requires an affirmative action by the person to receive it. The Respondent argues that this regulation is necessary to protect minors from accessing the porn, but the majority rejects this due to a lack of evidence. Dial up porn. Obscenity if it is in the privacy of your own home then is protected. Statute struck down as a violation of SM discrimination. There are less restrictive ways to attain the same result (protect children from using it). Not a TPM means chosen not reasonable. subject to strict scrutiny. Means used not the least restrictive.

City of Erie v. Pap's A.M. Citation. 120 S. Ct. 1382 (2000). Brief Fact Summary. The Petitioner, the City of Erie (Petitioner), passed an ordinance banning nude dancing. The Respondent, Pap's (Respondent), operates a nude bar and challenges the constitutionality of the ordinance. Synopsis of Rule of Law. Preventing secondary effects is a sufficient reason to make a content neutral law. Facts. In 1994, the Petitioner passed a law that makes it a crime to intentionally appear in public in a "state of nudity." The Respondent, Pap' A.M. (Respondent), owns "Kandyland" a club that features totally nude erotic dancing by women. To comply with the ordinance, the dancers must

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wear G-strings and pasties. Now, the Respondent seeks a permanent injunction against the Petitioner. Issue. Is the ordinance constitutional? Held. Yes. It is a content neutral regulation and does not violate the First Amendment of the United States Constitution (Constitution) because being nude is not an expression. Dissent. Justice David Souter (J. Souter): There is insufficient evidence to support the city's claim of secondary effects. Justice John Paul Stevens (J. Stevens): This law is an example of censorship. There is no way that dancers wearing G-strings and pasties result in a decrease of the secondary effects of which the city was concerned. Concurrence. The First Amendment of the Constitution is violated only when the communicative aspects of conduct are the reasons for the prohibition. Discussion. This law was passed to prevent the secondary effects of the activity. Nude dancing attracts other undesirable public nuisances that provide the city with a legitimate interest in prohibiting public nudity. The city made the argument that it was trying to protect girls from being assaulted did not really show statistics about it but the level of respect for this kind of speech is not protected.

Young v. American Mini Theaters, Inc. Brief Fact Summary. Detroit, Michigan adopted a zoning ordinance that restricted the location of adult movie theaters and prevented too many to congregate near bars and other regulated establishments. Synopsis of Rule of Law. Content of speech may be used to restrict an activity, as long as the speech is not biased by such a restriction. Facts. Detroit, Michigan adopted a zoning ordinance that restricted the location of adult movie theaters. The adult movie houses were not to be located within 1,000 feet of any two other "regulated uses" and was to be located more than 500 feet from a residential area. Issue. Is a statute that regulates the location of adult movie theaters differently than regular movies constitutional? Held. Yes. This law does not restrict the communication of the material. It just limits the location of the message. Dissent. This is a time, place, and manner restriction. This type of restriction is to be used only with content neutral discriminations. Discussion. The city imposes restrictions on regular theaters as well. This restriction, although directed at the adult entertainment, is not abnormally harsh or unreasonable. The number of theater licenses were not limited, therefore, speech was not prohibited. Courts do not have interest to protect the financials of the theater.
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Commercial Speech Test to decide whether is commercial speech. I. Is it commercial speech? a. Advertise/ refer to specific product/ service. b. Financial motivation? c. Concedes to be advertisement. Cite to Bolger for this. If only two but really strong then consider it to be commercial speech. Does the commercial speech (advertisement) advocates illegal activity or is speech false or misleading. Ex. advertising a dog fight. Does the law formally try to regulate a substantial government interest? Does the law directly advance the substantial government interest. Are the laws means no more extensive than necessary. If you can think of a less restrictive way it will be deemed more extensive than necessary. Last two elements cite to New Orleans Broadcasting v. US. this is intermediate review not strict scrutiny. Commercial speech has less protection than political speech. If not commercial speech go to the other test.

II. III. IV. V.

Bolger v. Youngs Drug Products Corp. Brief Fact Summary. The Respondent, Youngs Drug Products Corp. (Respondent), wants to send direct mailings to the public advertising its contraceptives. A federal statute prohibits such activity. Synopsis of Rule of Law. Commercial speech does no more than propose a commercial transaction. Facts. The Federal code prohibits unsolicited advertisements for contraceptives to be mailed. The Respondent manufactures a variety of contraceptives and usually sells to distributors. But, now it wants to send an advertising brochure to its regular customers, plus members of the public in general. Issue. Is this advertisement commercial speech? Held. Yes. All of the mailings are commercial speech. Discussion. Whether the printed material is commercial speech depends upon the existence of three distinct attributes: (1) it is meant to be an advertisement, (2) it references a particular product, and (3) there is an economic motivation for disseminating the material. If all of these attributes are present, then it is protected under the First Amendment of the United States Constitution (Constitution). There are least restrictive ways. Take it from the back of the first amendment.

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Central Hudson Gas & Electric Corp. v. Public Service Commission of New York Citation. 447 U.S. 557 (1980). Brief Fact Summary. The Respondent, Public Service Commission of New York (Respondent), imposed a ban on all advertising by utility companies. Synopsis of Rule of Law. Commercial speech that is not misleading and concerns lawful activity may be regulated if the government has a substantial interest that will be advanced through a narrowly drawn regulation. Facts. In 1973, the Respondent ordered all electric companies to stop advertising the use of electricity. The state determined that it did not have enough fuel to last the winter and needed citizens to conserve. Once the shortage was over, the Respondent polled the public to decide whether to continue the ban on the electric companies. The Petitioner, Central Hudson Gas & Electric Corp. (Petitioner), opposed this ban on First Amendment constitutional grounds. Issue. Does this ban on advertisement violate the First Amendment of the Constitution? Held. Yes. Although energy conservation is important, it does not justify a total ban on all advertisements promoting the use of electric devices or services. Discussion. This is an identical test to intermediate scrutiny. The government has the burden to prove that there is a substantial interest that the regulation protects. It is not appropriate to continue a ban to curb consumption of the electric utility. The government said that the law was for the publics welfare however it can find another alternative that does not impinges on the 1st amendment rights. If can find another alternative is not regulating directly. Other options to discourage people from using electricity as for example putting fines or doubling charges.

Rubin v. Coors P-1439. The law restricts the beer labels from displaying the alcohol level the government said it was to avoid people from getting drunk. However there are other means to attain the same results. There is no evidence to show that knowing the % will affect peoples decision to buy beer.

New Orleans case. P-1441. Is important because the court said that it would use intermediate review. The statute can still be struck down under intermediate review. Government interest is to discourage people from gambling.

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