Constitutional Law Outline

Richards, Fall 2005

Origins of Constitutional Law [class notes 1-4]
Britain was based on a arlia!entar" sure!ac" s"ste!, but #!ericans $iewed British as untrue
to their constitutional %uarantees& 'his (eelin% in(or!ed the re$olution, which !ust be understood
as a constitutional revolution&
Once dra(ted, )adison was ro(oundl" disaointed with the Constitution, (or (ailure to rotect
hu!an ri%hts, seci(icall" with re%ards to reli%ion and sla$er"& *e $iewed the docu!ent as
morally bankrupt and (elt that it would ulti!atel" destro" #!erica& #dditionall" was concerned
about rotectin% eole a%ainst libert" $iolations (ro! states, which he $iewed as a threat&
o +ost )adison, #!ericans, eseciall" in the south, be%in to accet constitutionalis! with
sla$er"& )adison,s leas are o$erloo-ed and (or%otten&
o Reconstruction #!end!ents (inall" allow national ower to be used a%ainst the states
.seci(icall" the 14
th
#!end!ent/, in an e((ort to rotect indi$idual liberties& 'his broad
$iew o( the a!end!ents did not catch on initiall", and was not (ull" reali0ed until ost-
1122, but it was used (ro! the start as a tool to rotect irrational racis!&
o 3in% and the ci$il ri%hts !o$e!ent hel to (ull" reali0e the 14
th
#!end!ent as a %uarantee
o( hu!an ri%hts&
Constitutional Interpretation [class notes, readin% notes]
Constitutional Interpretation by the Judiciary, and Judicial Review
o )arbur" $& )adison .45 1607/ [8unther &7, readin% notes 1, class notes 4-9]
Considers the entitle!ent o( )arbur" to an aoint!ent, that was not reali0ed with
a co!!ission b" the subse:uent ;e((erson ad!inistration&
'he court (inds that )arbur" has a ri%ht to the co!!ission as a !atter o( law, there
is a re!ed" at law, but (ails to %rant !anda!us a(ter (indin% that the disute was
i!roerl" be(ore the 5ure!e Court on ori%inal <urisdiction = denies relie(&
Case is i!ortant (or it creates the concet o( judicial review& )arshall denies
relie( because he thin-s that the ;udiciar" #ct o( 196>,s %rant o( ori%inal
<urisdiction (or !anda!us is not consistent with #rticle 222 o( the Constitution,
which outlines instances where the 5ure!e Court is to ha$e ori%inal <urisdiction&
'hus there is also a stron% ar%u!ent (or constitutional supremacy&
o )cCulloch $& )ar"land .45 161>/ [boo- >0, readin% 9-6, class 5]
Con%ress chartered a national ban-, with branches in $arious states& )ar"land
enacted a ta? to be le$ied a%ainst the national ban- branch in the state&
)arshall, (or the court, (inds that the state ta?in% o( the (ederal ban- is
unconstitutional, (or it hinders the e?ercise o( national ower& 1hile states ha$e
the ower to ta?, the" cannot e?ercise it in a wa" that is in oosition to the (ederal
owers& *ere the (ederal owers are constitutional, not e?ressl", but on an
i!lied basis, and thus as the !eans are narrowl" tailored to a le%iti!ate %oal,
<udicial de(erence is in order&
Richards notes that this case stands (or the idea that there are so!e !atters which
are <udicial in nature, and others which are uni:uel" olitical& 1hen the latter is
the case, <udicial de(erence is roer&
o Le%islati$e and @?ecuti$e e?ercise o( constitutional re$iew is not unheard o(& +residents
ha$e used the $eto ower to re<ect le%islation the" $iew as unconstitutional, Con%ress has
re<ected le%islation on si!ilar %rounds, and rosecutorial discretion and the ardon ower
ha$e been used to !iti%ate the e((ects o( law $iewed as unconstitutional& [Class 9, boo- 22-
29]
Democratic Objections to Judicial Review [class 9-17]
o ;e((erson
#r%ued that the branches o( %o$ern!ent are coe:ual, and ha$e no authorit" to !a-e
(inal constitutional decisions (or each other& Re<ected )arbur" $& )adison, and the
concet o( <udicial re$iew = thou%h ri%hts clearl" e?ist, the" onl" bind the
le%islature& Branches are onl" accountable to the eole&
o Court 5-etic #roach = 'ha"er
'hree sta%es o( 'ha"er,s ersecti$eA
;udicial re$iew is an in(erred ower (ro! the constitution
'he ower o( <udicial re$iew is li!ited to <udicial conte?ts = an is onl"
aroriate when necessar" to decide a constitutional issue
Court !ust be de(erential in the re$iew& Court should oerate b" the rule of
clear mistake = onl" (indin% le%islati$e acts unconstitutional when the" are
clearl" erroneous& 'hus, so lon% as there is an" constitutional basis (or the
law, courts should de(er/&
'ha"er does not $iew courts as the ri!ar" en(orcers o( hu!an ri%hts, but rather, as
a last resort when there is not other !eans o( -eein% the constitutional structure
intact& Belie$es stron%l" in an en%a%ed citi0enr" that $i%ilantl" de(ends its ri%hts&
o Ri%hts 5-etic #roach = *and
'wo arts to *and,s ersecti$e, which co!es (ro! his wor- Bill of Ri%htsA
;udicial re$iew o( con%ressional le%islation is a usuration .(ro! histor"/
Ri%hts do not e?ist, thus <udicial re$iew to $alidate the! is in$alid .olitical
theor"/& Belie$es that ri%hts are not lo%ical .with resect to utilitarian
rinciles o( !a?i!i0in% bene(its (or the !a<orit"/, and are too sub<ecti$e
.which leads the court to beco!in% a third le%islati$e cha!ber/&
o 1eschler criti:ues *and,s ersecti$e = ar%ues that <udicial re$iew
is aroriate so lon% as it aroaches it (ro! neutral perspectives
of constitutional law& Focuses on *and,s contention that in ractice,
it a!ounts to courts bein% third le%islati$e cha!bers = contends that
the rocedural adherence to neutral rinciles, in arbitratin% actual
contro$ersies, !iti%ates a%ainst this (indin%& 1eschler thou%h,
would (ind no neutral rincile in Brown, but would in +less"&
Richards :uestions 1eschler,s (or!ulation, as e$en neutral
rinciles can %i$e rise to results that de$alue hu!an ri%hts =
i&e& Ba0i 8er!an", +less"&
o Cwor-in en%a%es the s-etical ob<ections to <udicial re$iewA
Court 5-etical Challen%e = ri%hts e?ist, but courts do not %i$e us the best
readin% o( what the" are&
Ri%ht 5-etical Challen%e = based on a utilitarian aroach, which doesn,t
ac-nowled%e the e?istence o( ri%hts& 5ubse:uentl", <udicial re$iew to
en(orce ri%hts is ille%iti!ate&
Cwor-in ar%ues that "ou !ust ha$e a coherent olitical hilosoh" in interretin%
the Constitution, and on so!e le$el re<ects both the court and ri%hts s-etic
challen%es .thou%h the le%islati$e branch can o(ten aid in de(inin% the scoe o(
ri%hts/& #r%ues that constitutional law should be ai!ed at rotectin% basic hu!an
ri%hts, but should do so (ro! ar%u!ents o( rincileD thus, he suorts the concet
o( <udicial re$iew&
Cwor-in ar%ues that the !easure co!es (ro! hard cases& First loo- to fit, to
deter!ine how a decision will (it with e?istin% recedent .in hard cases this won,t
end the in:uir", as the recedent is in disarra"/& )ust then loo- to background
rights, which are the constitutional ri%hts that should be rotected&
o Re!ainin% (or!s o( s-eticis!
;ohn *art @l" = ar%ues that <udicial re$iew is onl" aroriate when there are
roble!s in reresentation, as the roducts o( a (air rocedure are unreachable b"
the courts& Brown and reaortion!ent are accetable results, as racial stereot"es
%i$en the (orce o( law hurt reresentation, but Roe $& 1ade is not, as wo!en ha$e
the ri%ht to $ote .and are a !a<orit"/, and (etuses are unreresented& +roer wei%ht
!ust be %i$en to the interests o( all citi0ens when assin% le%islation that a((ects
the!& )inorities $icti!i0ed b" re<udice in a wa" that har!s reresentation !a"
%i$e rise to <udicial re$iewA
@?licit re<udice = in$idious race hatred
o Ewould not understand searate but e:ualF
2!lied re<udice = law based on stereot"es
o Edoes not areciate dehu!ani0in% nature o( beni%n stereot"es as
in Craig v. BorenF
ERichards criti:ue = once re!o$ed utilitarianis!F
Ori%inalist = ar%ues that cases should be decided as (ounders would ha$e
interreted = thus ooses <udicial inter$ention to en(orce !odern $iews o( ri%hts&
Richards criti:ueA Botes that the te?t does not re:uire it, and it %oes a%ainst
the wa" in which the (ounders wrote the te?t = broad& Better is an aroach
that resects the te?t, <udicial interretation, and e$ol$in% social conte?ts
and nor!s& Fi$e -e" <usti(ications (or re<ectin% ori%inalis!A
o +resence o( inde(inite clauses su%%est the (ounders intent to lea$e
the! oen to interretation
o )ust allow (or chan%in% circu!stances, and not bind (uture
%enerations to historical denotations
o Constitution was enacted and %rounded in endurin% rinciles o(
<ustice = !ust ac-nowled%e the abstract intentions o( (ounders&
o # broad $iew is essential (or !eanin%(ul <udicial interretation
o 'he ori%inalist e!hasis on oular so$erei%nt" is dan%erous (or
hu!an and !inorit" ri%hts&
he Role of !istory in judicial interpretation " Originalism Isn#t Really $ollowed
o 1illia!s $& Florida .1>90/ as an e?a!le o( the roble!atic nature o( ori%inalist histor"&
'he case dealt with the constitutionalit" o( a si? !e!ber <ur" in Florida (or non-
caital cri!inal cases& 'he court loo-ed to the histor" o( the 5i?th #!end!ent,
and ulti!atel" deter!ined that a <ur" o( 12 was not re:uired& *ow should G<ur"H
be interretedI
Can loo- to the te?t
o Can be denotati$e = i&e& denotin% what is bein% re(erred to = here
clearl" the unani!ous 12 erson <ur"&
o Can be connotati$e = i&e& con$e"in% that which is lo%icall" related to
what is re(erred to = here a bod" o( si0e enou%h to do <ustice in a
deliberati$e (ashion&
Can loo- to the recedent and deter!ine what wei%ht it should ha$e
1hite, (or the court, adoted a connotati$e !eanin% o( <ur", (indin% that what was
!eant was a <ur" o( the si0e enou%h to be deliberati$e, and reresentati$e o( the
co!!unit"&
*arlan,s oinion ar%ues that the ori%inalist understandin% .here, a 12 erson <ur"/
should not be dearted (ro! unless there is a co!ellin% reason&
o Lo$ett $& 4nited 5tates .1>4J/ [class 15, readin% 5]
Cealt with the understandin% o( the !eanin% o( a bill o( attainder under #rticle 2
sections >-10& *ere con%ress assed le%islation reclassi("in% a" o( (ederal
e!lo"ees, and a %rou o( indi$iduals were set out on account o( their olitical
$iews& 1as it a bill o( attainderI
British understandin% o( bills o( attainder were le%islati$e acts, without trial,
that declared one %uilt" o( a cri!e, ordered death, and resulted in corrution
o( the blood& 'his would ha$e been the ori%inalist understandin% o( the
!eanin%&
Blac-,s oinion (or the court was anti-ori%inalist, as it disre%arded the British
understandin% o( bills o( attainder& Blac- (inds it is a-in to a bill o( attainder (or its
le%islati$e unish!ent that occurs without trial&
Richards notes that it is a le%islati$e unish!ent (or sti%!ati0in% eole on
account o( their olitical belie(s&
o 4nited 5tates $& Brown .1>J5/ [readin% 5-J, class 15-1J]
Con%ressional act rohibited Co!!unist art" o((icials (ro! ser$in% as union
leaders&
1arren (or the court (ound that it was a bill o( attainder&
o *o!e Buildin% and Loan $& Blaisdell .1>74/ [readin% J, class 1J-16]
Considered the constitutionalit" o( a state law, assed in the deression, to dela"
(oreclosure (or !issed ho!e a"!ents& Ori%inalist understandin% o( #rticle 2
5ection 10 would ha$e understood this as an i!air!ent o( the obli%ation o(
contracts&
C; *u%hes (or the court (inds that while e!er%encies do not e?and the owers o(
states, a narrowl" tailored e?cetion to contracts when there is a co!ellin% state
interest in the ublic wel(are is accetable, so lon% as it does not !ateriall" a((ect
the ter!s o( the contract&
5utherland dissent ar%ues that this %oes a%ainst the ori%inalist understandin% o( the
constitution&
o Other +roble!s with Ori%inalis! [readin% J-9]
'here are di((erences between what the framers did and said, thus loo-in% to the
olitical ositions the" too- does not alwa"s %i$e the best understandin% o( what
the" intended constitutionall"&
Chan%in% (actual situations deart (ro! what the (ra!ers could ha$e redicted
andKor understood, thus chan%in% constitutional interretation is needed&
$ederalism
$oundational %rguments for $ederalism
o Federalist L10 = ;a!es )adison [Brest 20>, class 16-20, read J]
)adison writes o( the dan%ers o( (action = $iews the! as threatenin% to di$ide the
countr" and to den" !inorities e:ual treat!ent under the law&
'o address the roble!s o( (action, )adison doesn,t thin- that eli!inatin% the
causes will be %ood (or the countr", as that would threaten autono!" and
indi$idualit"& Rather, )adison ad$ocates (or !iti%atin% the e((ects o( (action& 'o
!iti%ate the e((ects o( (action when the (action controls a !a<orit", )adison thin-s
that a reublican (or! o( %o$ern!ent, with chec-s and balances, will be !ost
e((ecti$e&
'hree di((erin% interreti$e $iews o( Federalist L10A
Beardian = )ar?ist ersecti$e that distrusts the Constitution (or (a$orin%
creditor interests abo$e those o( the oor = belie$es the ar%u!ent ro$ides
basis (or the debtorKcreditor tension& *istor" does not suort this $iew&
Cahl = belie$es that the result o( $arious (actions (i%htin% a%ainst each other
will be what is roer in a de!ocrac"& Criti:ue is that )adison did not
hold (actions in hi%h re%ard&
Richards = Founders had read )ontes:ue, which indicated that a reublican
(or! o( %o$ern!ent deended on a s!all ho!o%eneous co!!unit"& But,
Federalist L10 turns this on its head, ar%uin% that reublican %o$ern!ent
can succeed in a lar%e territor" with di$erse %rousKeole&
o )cCulloch $& )ar"land
5ou%ht to answer the :uestion o( whether or not a national ban- was a
constitutional e?ercise o( (ederal ower&
)arshall noted that whereas the articles o( con(ederation li!ited (ederal ower to
those e?ressl" %i$en, the constitution had no such li!itation& 5ubse:uentl", a
connotati$e readin% was !ade, and the e?ercise was not dee!ed in $iolation o(
#rticle 2 section >& Court re<ected )ar"land,s ar%u!ent that the ban- was not
Gnecessar" and roerH&
Case reco%ni0ed the ne%ati$e co!!erce clause owers, which restrict states (ro!
in(rin%in% uon the (ederal e?ercise o( ower& *ere the roble! was )ar"land
ta?in% the ban-, which indirectl" sread the cost to eole who couldn,t $ote in
)ar"land = unconstitutional discri!ination&
he Commerce Clause and Regulation of Commerce
o 'he 5coe o( Con%ressional +ower [class 22-24 , read 6-12 ]
2nterretation (ro! 1624-1>7J ro$ided the basis (or a broad interretation o( the
co!!erce clause owers, thou%h decisions were !i?ed&
Ba$i%ation is co!!erce
o 8ibbons $& O%den .1624/ = broad $iew o( co!!erce clause&
)arshall struc- down state !onool" %rant to stea!boat, (indin%
that the (ederal aroach which was !ore er!issi$e tru!ed =
na$i%ation is alwa"s co!!erce&
+rocesses necessar" (or interstate co!!erce can be re%ulated
o 5wi(t $& 4nited 5tates .45 1>05/ = broad $iew o( co!!erce& Basis
(or the stream of commerce theor"& 2( the ulti!ate %oalKrobabilit"
is that the roduct will end u in interstate co!!erce .here !eat/,
then the $arious rocesses leadin% u to it are sub<ect to (ederal
re%ulation& 45 as one econo!ic unit&
2ntrastate co!!erce can be re%ulated when it a((ects interstate co!!erce
o *ouston @ M 1 RN& O& 4nited 5tates .45 1>14/ .5hre$eort Rate
Case/ = broad $iew o( co!!erce clause& Court held that intra state
co!!erce can be re%ulated when it has an e((ect on interstate
co!!erce = here at issue were rates char%ed b" railroads&
Federal 8o$ern!ent has +olice +ower
o Cha!ion $& #!es .45 1>07/ = broad $iew o( co!!erce clause&
4holds (ederal statute, under olice ower .i( states ha$e it, (ed
%o$ern!ent does to/, denial o( interstate i!ortation o( lotter"
tic-ets&
But, there is a directKindirect distinctionA
o 45 $& @&C& 3ni%ht .su%ar trust case/ .16>5/ = narrow $iew o(
co!!erce clause& Court struc- down antitrust re%ulation o( su%ar
co!an" !er%er, creatin% a direct&indirect distinction (or
deter!inin% whether or not so!ethin% a((ects co!!erce& *ere,
!anu(acturin% would onl" indirectl" a((ect co!!erce&
o *a!!er $& Ca%enhart .1>16/ = Barrow $iew o( co!!erce clause =
stri-es down ban on child labor& Cistin%uishes between !eans o(
roduction and ob<ect o( re%ulation = cannot tar%et the !eans&
1a%e and *our Laws are not within the Co!!erce Clause
o 5checter +oultr" $& 45 .1>75/ = Barrow Oiew stri-es down
re%ulation o( wa%es and hours in (ederal statute a(ter the %oods are
in interstate co!!erce&
o Carter $& Carter Coal .1>7J/ = narrow $iew stri-es down wa%e and
hour re%ulation in (ederal statue (or %oods destined (or interstate
co!!erce&
Cecline o( Li!its on the Co!!erce Clause 1>79-1>>5
Ce!ise o( the CirectK2ndirect Cistinction
o BLRB $& ;ones M Lau%hlin 5teel .1>79/ = broad $iew uholds
(ederal re%ulation o( labor ractices in interstate co!!erce,
deartin% (ro! the ri%id directKindirect distinction, and towards a
de%ree based in:uir"&
1a%e and *our Laws are now within the Co!!erce Clause
o 45 $& Carb" .1>41/ = broad $iew uholds con%ressional re%ulation
o( wa%e and hour laws (or eole roducin% %oods (or interstate
co!!erce& @?ressl" re$erses Ca%enhart, and endorses strea! o(
co!!erce theor"&
Local #cti$it" with otential !ar-et i!act
o 1ic-ard $& Filburn .1>42/ = broad $iew uholds bar on wheat
%rown (or ersonal use in e?cess o( :uotas, (indin% that it !a" ha$e
an indirect i!act on the !ar-et&
2nterstate 'ra$el and Racis!
o *eart o( #tlanta )otel $& 4nited 5tates .1>J4/ = broad $iew uholds
law barrin% discri!ination in !atters o( ublic acco!!odation,
(indin% that such ractices burden the ri%ht o( interstate tra$el, and
thus ha$e i!lications (or co!!erce&
Bew Li!its on Co!!erce ower since 1>>5 [boo- 157, notes 10-11, class 27-24]
#bstract relation to e((ects on co!!erce no lon%er su((ices
o 4nited 5tates $& Loe0 .1>>5/ = narrow $iew = court stri-es down
ortions o( the 8un Free 5chool Pones #ct, (indin% that the
relationshi to co!!erce is too tenuous& Rehn:uist notes that there
are three cate%ories o( le%islation that can be re%ulated on co!!erce
clause %roundsA
4se o( the channels o( interstate co!!erce
4se o( the instru!entalities o( interstate co!!erce .e$en i(
entirel" in state/
#cti$ities ha$in% a substantial relation to interstate
co!!erce&
o 4nited 5tates $& )orrison .2000/ = narrow $iew = 5tri-es down
$iolence a%ainst wo!en act, (indin% that it is controlled b" Loe0&
Finds that it is not econo!ic acti$it" = thus creatin% an
econo!icKnonecono!ic distinction&
o But 5ee 8on0ales $& Raich .2005/ = uholds (ederal re%ulation o(
!ari<uana, (indin% that it is econo!ic in nature, unli-e in Loe0 and
)orrison&
o he 'rivileges and Immunities Clause .#rticle 4 5ection 2/
2n %eneral, a two art in:uir" to deter!ine i( a state has $iolated the ri$ile%es and
i!!unities clause in re%ulation o( co!!erceA
Coes the state discri!inate between residents and non residentsI
Coes the state in(rin%e on a (unda!ental ri%htI
# law can satis(" the ri$ile%es and i!!unities clause while (ailin% the co!!erce
clause&
4nited Buildin% and Construction 'rades Council $& )a"or and Council o(
Ca!den .1>64/ [readin% 19, class 25]
)unicial law re:uired cit" contractors to e!lo" 40Q o( their eole (ro!
the cit"&
Rehn:uist, (or the court, (inds that the law !a" $iolate the ri$ile%es and
i!!unities clause, as there is discri!ination on the basis o( !unicial
status .e?tends the residentKnonresident distinction to !unicialities/, and it
!a" in(rin%e on a (unda!ental ri%ht .to see- e!lo"!ent with a ri$ate
co!an"/&
Cissent ar%ues a%ainst e?tendin% ri$ile%es and i!!unities <urisrudence to
!unicialit" discri!ination&
5ure!e Court o( B* $& +ier .1>65/ = court stri-es down a ban on nonresidents
bein% ad!itted to the state Bar = (inds that it is discri!ination that $iolates
ri$ile%es and i!!unities clause&
o (tate 'ower and the )egative *or dormant+ Commerce Clause [class 24- , readin% 12- ]
Cor!ant co!!erce clause allows court in$alidation o( state rotectionist le%islation, e$en
in the absence o( con%ressional ree!tion& 'he ower is not e?ressl" %ranted b" the
Constitution, but is read in b" the %rant o( ower to Con%ress to re%ulate interstate
co!!erce& .#rt 1 ss6-10/
!istorically
Co!!ercial re%ulation b" states %i$es rise to con(licts
o 8ibbons $& O%den .1624/ = 2n reasonin%, )arshall distin%uishes the
ower to re%ulate co!!erce (ro! the ower to ta? = whereas
ta?ation can be done concurrentl" without con(lict, the latter
naturall" con(licts when done concurrentl", thus state law cannot
re%ulate co!!erce in a wa" that will con(lict&
o But 5ee 1ilson $& Blac- Bird Cree- )arsh Co& .162>/ = state
authori0ation (or da! which con(licted with (ederal ri%ht to na$i%ate
could not be struc- down on co!!erce clause %rounds because the
state law was not re%ulatin% co!!erce&
Re%ulation b" 5tates incident to co!!erce !a" be accetable
o Coole" $& Board o( 1ardens .1651/ [readin% 17, class 24] = 4holds
state re%ulation o( water ilots when Con%ress declares that state
law controls until Con%ress ree!ts& Court (inds that as it is not an
area that re:uires uni(or!it", it is constitutional&
+urose o( Le%islation is rele$ant to Constitutionalit"
o Buc- $& 3u"-endall .1>25/ = rotectionist state statute den"in%
license (or rail is unconstitutional&
o Bradle" $& +ublic 4tilities Co!!,n .1>77/ Cenial o( certi(icate to
oerate was uheld (or ublic sa(et" considerations that were
dee!ed le%iti!ate = e((ect on co!!erce is incidental
,odern Court %pproach to )egative Commerce Clause
Relies less on cate%orical distinctions, but stri-in% down state laws can be
cate%ori0ed into one o( the (ollowin% areasA
O$ert discri!ination a%ainst out o( state co!!erce .i&e& (acial
discri!ination/
Fa$orin% local econo!ic interests at the e?ense o( out o( state co!etitors
.i&e& rotectionis!/
Faciall" neutral laws that undul" burden interstate co!!erce& .i&e& +i-e
balancin%/
Facial Ciscri!ination .2!ort Restriction Cases/
Facial discri!ination is al!ost alwa"s in$alid = the least restrictive means are
necessar" to <usti(" it&
+hiladelhia $& Bew ;erse" .1>96/ [readin% 14, boo- 259, class 2J] = #bsolute
bar on i!ortation o( solid waste (ro! out o( area& Court (inds that this is
o$ert discri!ination, and holds it to a hi%h standard& 'hou%h it is a
le%iti!ate state interest, court (inds that there were less restricti$e !eans to
acco!lishin% the %oal&
Cean )il- $& )adison .1>51/ = )adison re:uired !il- to be asteuri0ed
within (i$e !iles o( the cit"& Court (inds that a constitutional ri%ht is
in(rin%ed .interstate co!!erce/, and thus that the least restricti$e !eans to
achie$e the %oal !ust be utili0ed& 'his is the start o( the least restricti$e
!eans test&
Fort 8ratiot 5anitar" Land(ill $& )ichi%an Ceart!ent o( Batural Resources
.45 1>>2/ - 2n$alidated a count" ban on out o( count" waste =e?tends
+hiladelhia $& B; to the olitical subdi$isions o( the state
C M # Carbone $& Clar-stown .45 1>>4/ - Court in$alidated a town
re:uire!ent that all solid waste in the cit" be rocessed b" a articular
lant, which char%ed !ore than the standard rate& Less burdenso!e wa"s to
achie$e a local %oal
Facial Ciscri!ination in 'a?es and Fees [read 14]
2s %enerall" struc- down& Che!ical 1aste )ana%e!ent $& *unt .1>>2/
.stri-in% down ta? on out o( state ha0ardous waste/D Ore%on 1aste 5"ste!s
.1>>4/ .stri-in% down di((erential (ees (or out o( state waste/D 1est L"nn
Crea!er" .1>>4/ .in$alidatin% across the board (ee to subsidi0e in state
roducers/D Ca!s Bew(oundKOwatonna $& 'own o( *arrison .1>>9/
.stri-in% down ta? e?e!t bar on charities bene(itin% out o( state eole/D
5outh Central Bell 'elehone $& #laba!a .1>>>/ .stri-e down ta? sche!e
allowin% bene(its (or in state, but not out o( state entities/&
But see 8eneral )otors $& 'rac" .1>>9/ .re<ectin% challen%e to ta? s"ste!
that e?e!ted so!e in state entities while ta?in% others&/
Fa$orin% Local 2nterests - 5tate Burdens on 'ransortation #re 4nconstitutional i(
(or +rotectionist +uroses
5outh Carolina $& Barnwell .1>76/ [class 25, boo- 266] = court uholds a state
sa(et" re%ulation (or truc- wei%ht that alies e:uall" to in state and out o(
state truc-s = thus there could be no discri!inator" intent&
5outhern +aci(ic $& #ri0ona .1>45/ = (or!all" nondiscri!inator" re%ulation
on nu!ber o( cars in a train is struc- down (or bein% burdenso!e on
interstate co!!erce in e((ect& Court (ound that the increased (re:uenc" o(
train tris under!ined the ar%u!ent that it was a $alid sa(et" re%ulation&
o Oer" non-de(erential re$iew = (ear o( one state settin% standards (or
all states&
Bibb $& Ba$a<o Frei%ht Lines .1>5>/ = stri-es down law re:uirin% contour
!ud(las = (inds that there is no le%iti!ate urose&
3assel $& Consolidated Frei%htwa"s .1>61/ = 5tri-es down state law
restrictin% use o( lar%e truc-s& 'hou%h (or!all" nondiscri!inator", it
creates an undue burden, and the showin% that it is a $alid sa(et" re%ulation
is wea-&
5tate Barriers to Out o( 5tate 5ellers .and rice restrictions/
Bot er!itted when unnecessaril" or e((ecti$el" burdenin% interstate
co!!erce& Baldwin v. Seelig .1>75/ .struc- down BN law that re:uired a
!ini!u! rice be char%ed (or !il- sold in state = undul" burdened out o(
state sellers that could char%e less&/D Hunt v. Washington State Apple
Advertising Commn .45 1>99/ .in$alidates B&C& labelin% law that in e((ect
onl" burdened 1ashin%ton ales, and re!o$ed co!etiti$e ad$anta%e&/
But er!itted when uttin% it on the sa!e %rounds as in state co!!erce&
Henneford v. Silas ason .1>79/ .uheld state use ta?, at sa!e rate o( sales
ta?, (or %oods urchased out o( state and brou%ht in state&/D Breard v.
Ale!andria .1>51/ .court uheld a law barrin% door to door solicitation
absent er!ission& Can,t in(er rotectionis! (ro! discri!inator" e((ect&/
5tate Barriers to Out o( 5tate Bu"ers .and e?ort restrictions/
8enerall" are not er!ittedA
1hether (or rotectionist uroses H.". Hood # Sons v. $u ond .1>4>/
.Court struc- down state licensin% sche!e which er!itted a%enc" to den"
licenses to entities which would cause destructi$e co!etition& 'he court
reasoned that er!ittin% this would %o a%ainst the ideal o( a co!!on
econo!ic !ar-et, and that it is not within the real! o( $alid health and
sa(et" re%ulations&/D
Or to -ee natural resources in state& Hughes v. %klahoma .45 1>9>/
.court struc- down an O-laho!a law (orbiddin% the transort o( !innows
(or sale out o( state when cau%ht in state - Faciall" discri!inator"&/D &ew
'ngland "ower v. &ew Hampshire .1>62/ .court struc- down law
restrictin% the e?ort o( ower& Reasoned that the co!!erce clause
anal"sis recludes states (ro! !andatin% that its residents %et re(erence to
natural resources within the borders, or roduced (ro! the!&/D Sporhase v.
&ebraska .1>62/ = court rea((ir! s-eticis! about e?ort controls on
natural resources& *eld unconstitutional a ban on withdrawin% water (or out
o( state use&
But there are e?cetionsA Cities Service (as v. "eerless %il # (as .45
1>50/ .court uheld a local re%ulation ai!ed at conser$in% local natural %as&
Cistin%uished *ood on the %round that *ood was about discri!inatin%
a%ainst co!etition, but this re%ulation alied to all %as e?tracted&/
4ndul" Burdenso!e to 2nterstate Co!!erce = +i-e Balancin%
Faciall" neutral and non-rotectionist le%islation can
be struc- down when it (ails the 'i-e .alancing est& [boo- 26J] 'est
(inds that where e$en-handed le%islation tar%eted at le%iti!ate ublic
interests burdens interstate co!!erce incidentall", it will be uheld unless
the burden on co!!erce is e?cessi$e to local bene(its&
o Congressional 'reemption of (tate Law haens b" e?ress
state!ent, i!lied occuation o( the re%ulator" (ield, or i!lied reclusion o( con(lictin%
state re%ulations.
)ust be e?ress state!entA "acific (as # 'lectric Co. v.
State 'nergy .1>67/ [read 19-16] .Oinion noted that reclusion was aroriate
when the te?t is e?licit, or the s"ste! o( re%ulation is so er$asi$e that state
re%ulation naturall" con(licts& *ere te?t o( (ederal statute re%ulatin% nuclear ower
did not e?licitl" bar state bans, and a(ter anal"sis, court dee!ed that the re%ulator"
sche!e was not so co!rehensi$e that the state law con(licted/D
2!lied Occuation o( the Re%ulator" Field !ust be stron%A
)ice v. Santa *e 'levator Corp .45 1>49/ .court re:uired clear showin% that
Con%ressional entr" into traditional (ield o( state re%ulation was !eant to ree!t/D
2!lied reclusion o( con(lictin% state re%ulationsA Crosby v &ational *oreign
+rade Council .2000/ [boo- 771] .court struc- down )assachusetts law barrin% state
entities (ro! doin% business with Bur!a& Reasoned that the law was ree!ted b"
a (ederal lan (or trade sanctions, and that the state e((ort con(licted/D *lorida ,ime
# Avocado (rowers v. "aul .1>J7/ .notin% that ree!tion onl" e?ists i( it is
i!ossible to co!l" with both re%ulations/D Hines v. $avidowit- .1>41/ [boo- 72>]
.struc- down state i!!i%ration re%ulation as inconsistent with (ederal ob<ecti$es/&
o Congressional Consent to (tate Law is %enerall" $alid when done
e?licitl"& [boo- 777, read 16, class 29-26]
Con%ressional le%islation which dele%ates re%ulator" ower
o$er co!!erce to the states is %enerall" $alid& ,eisy v. Hardin .16>0/ .in$alidatin%
state re%ulation o( li:uor absent $alid (ederal authori0ation = co!!erce is to re!ain
(ree/D Wilkerson v. )ahrer .16>1/ .uholds 1ilson #ct - con%ressional dele%ation
o( ower to re%ulate li:uor in ori%inal ac-a%in% to the states/D .ames Clark
$istilling v. Western aryland ). Co. .1>19/ .uheld 1ebb-3en"on act barrin%
shi!ents o( alcohol to states where used in ille%al !anner = 1O barred sale o( all
li:uor, and thus the shi!ent&/D "rudential /nsurance v. Ben0amin .1>4J/ .Court
uheld state discri!inator" re%ulation o( ta? on out o( state insurance co!an"
where Con%ress dele%ated authorit" to states to re%ulate insurance/D B4' 5@@
etropolitan ,ife /ns. 1. Ward .1>65/ .in$alidatin% on e:ual rotection %rounds
discri!inator" state ta? on non-do!estic insurance a(ter concludin% that insurance
is not co!!erce/&
'hree 'heories o( Con%ressional ConsentA
5tatutor" = <udiciar" (ills in con%ressional intent throu%h the ne%ati$e
co!!erce clause& *ere then, Con%ress is correctin% incorrect $iews o( its
intent&
Court co!!on law = ne%ati$e CC is co!!on law, that Con%ress can (ill in&
Constitutional $alue = re$ent state discri!ination i( so e%re%ious&
(eparation of 'owers
'he #!erican @?erience
o Our s"ste! o( searation o( owers is uni:ue&
Loc-e (elt it was -e" to a <ust %o$ern!ent
Rationale is to -ee eole accountable to the rule o( law, and to re$ent
%o$ern!ental t"rann"&
Our s"ste! co!es (ro! )onties:ue
#llocation o( +owers between Con%ress and the @?ecuti$e [Read 1>]
o *istorical Conte?t and 4nderstandin%
Federalist 90 .*a!ilton/ [Brest 222, read 1>] ad$ocated (or a stron% e?ecuti$e =
Gener%" in the e?ecuti$eH
Federalists 49-46 .)adison/ ad$ocated (or clear searation o( owers, with no
branch controllin% another&
o Bon-dele%ation Coctrine
*istoricall" re:uired clear li!its, and not boundless ower to be dele%ated&
5ubse:uentl", Con%ressional dele%ations o( ower .in Bew Ceal conte?t/ were
struc- down& +ana!a Re(inin% $& R"an .1>75/D 5chechter +oultr" $& 4nited 5tates
.1>75/&
Brest notes that doctrine is now dead, as no other con%ressional dele%ation has
been struc- down, and e?ansi$e dele%ations ha$e been aro$ed o(&
2!each!ent .#rticle 4 5ection 2/ [read 20]
o +rocedure = *ouse asses articles o( i!each!ent, 5enate tries, and the Chie( ;ustice
resides& Oer" little %uidance e?ists in the Constitution (or what should be i!eachable
and re!o$able&
o Bac-%round and urose
*i%h Cri!es and )isde!eanors, not !alad!inistration which was re<ected b" the
constitutional con$ention as too $a%ue&
Bot li!ited to cri!es, but rather, can include non-cri!inal acts li-e (ailin% to
er(or! duties&
o 1hat should be i!eachableI
5o!e non-cri!es erhas should be reachable, li-e not carr"in% out duties, or as in
the ;ohnson i!each!ent, not carr"in% throu%h with the will o( Con%ress
.oliticall" !oti$ated/
5o!e cri!es erhas should not be reachable, (or instance, nu!erous (ederal
cri!es do not reach the threshold o( G*i%h cri!es and !isde!eanors&H Bow!an
and 5eernuc- su%%est loo-in% to the relationshi o( the !oral %ra$it" and cri!e
co!!itted, se$erit" o( the cri!e in the e"es o( the cri!inal law, circu!stances
under which co!!itted, and i( er<ur"Kobstruction o( <ustice then to whether it is in
the conte?t o( doin% the <ob&
o 1hat should lead to re!o$alI
Bow!an and 5eernuc- su%%est that so!e o((enses, while i!eachable, shouldn,t
lead to re!o$al& 'he" su%%est considerin% whetherA
i!each!ent and re!o$al (or the conduct at issue is necessar" to deter
(uture +residents (ro! en%a%in% in si!ilar conduct
i!each!ent and re!o$al (or such conduct !i%ht deter others rone to
en%a%e in such conduct (ro! see-in% the +residenc", and whether the
countr" is better o(( (or that
incaacitation o( the resident under scrutin" is necessar" (or the rotection
o( the Reublic
i!each!ent and re!o$al o( the +resident on these %rounds ro!otes or
disser$es the countr" in the lon% ter!&
(ystem of $ree /0pression
Oalues that Freedo! o( 5eech 5er$es [read 21, class 2>]
o #d$ancin% -nowled%e and truth
Co!es (ro! ;ohn )ilton,s #reoa%itica .1J44/ and ;ohn 5tuart )ill,s On Libert"
.165>/& Rationale is that !an" ideas ha$e asects o( truth, and that the truth
ulti!atel" re$ails& Criti:ue ar%ues that it doesn,t re(lect the realities o(
conte!orar" societ", that do!inant %rous ha$e an undue interest, and that e$en
in !ar-ets occasional correcti$e !easures are needed&
o Facilitatin% de!ocrac" and reresentati$e %o$ern!ent &
Co!es (ro! )ie-le<ohn,s belie( in ublic seech needin% the hi%hest de%ree o(
rotection, and ri$ate seech not needin% !uch& 2n this $iew, the First
#!end!ent ser$es (our -e" rolesA
2n(or!s and i!ro$es ublic olic"!a-in%
+re$ents %o$ern!ental entrench!ent
+re$ents %o$ern!ental abuse o( ower
+ro$ides a sa(et" $al$e (or dissent
o +ro!otin% indi$idual autono!", sel( e?ression, sel( (ul(ill!ent
'his is Richards, $iew = redisosed to a broad $iew o( the First #!end!ent in
order to allow eole to $oice dissent and their uni:ue !oral $oice& 'his enables
indi$idual autono!"&
+olitical 5eech and 5ub$ersi$e #d$ocac" 'hrou%hout *istor" - 2ncite!ent
o 2ncite!ent in 112 @ra
Clear and +resent Can%er 'est as a !eans to li!itin% the Freedo! o( 5eech&
Schenck v. 2nited States .1>1>/ [read 21, class 70] held that when seech
resents a clear and resent dan%er o( brin%in% about an e$il that Con%ress
has the ri%ht to rohibit, then it can be banned& *ere there was a clear and
resent dan%er that the ser$ice !e!bers tar%eted b" the a!hlets bein%
handed out would beco!e insubordinate&
Broad de(erence under the @siona%e #ctA *rohwerk v. 2nited States
.1>1>/ .Court uholds con$iction o( newsaer editor ar%uin% a%ainst war
in 8er!an"& Oinion lar%el" de(erential = *ol!es (ears (la!es o(
dissention bein% (anned&/D $ebs v. 2nited States .1>1>/ .Con$iction
sustained (or antiwar seech with ossibilit" o( har!in% recruit!ent, and
(or notabilit" o( sea-er/D Abrams v. 2nited States .1>1>/ .a((ir!in%
con$iction o( a!hleteer oosin% inter$ention in Russian Re$olution =
*ol!es, re$iousl" in !a<orit" in three a(ore!entioned cases, switches to
dissent thin-in% it %oes too (ar as these are nobodies/
*and,s Oiew was not (ollowed, and was o$erruled& #d$ocated in asses
"ublishing v. "atten .1>19/ (or incite!ent to re:uire actual ad$ocac" o( ille%al
action&
#d$ocac" o( ille%al acti$ities were barred e$en absent a clear and resent dan%er
5tate laws barrin% ad$ocac" o( actions contrar" to the ublic wel(are are
constitutional& (itlow v. &ew 3ork .1>25/ [read 27] .law cri!inali0es
cri!inal anarch", and a((ir!ed a%ainst challen%e (or alication to sea-er
%enerall" (or the end o( the current (or! o( %o$ern!ent& *ol!es dissent
was noteworth", (or he ar%ued that there was no resent dan%er in the $iews
esoused&/
Cri!inal s"ndication laws can reach !ere articiation in a %rou that
ad$ocates (or ille%al acti$ities& Whitney v. California .1>29/ [101J, class 72]
.holdin% that con$iction o( wo!an who ad$ocated !oderate osition as
leader in Co!!unist art" was roer when the or%ani0ation adoted a
!ore radical osition& *ol!esKBrandeis wrote in a%ree!ent with the
outco!e, but (elt that association should not be cri!inali0ed& #r%ued that
har! !ust be a serious har! to the state, and imminent to be cri!inal in
seech = ar%ued that a $er" serious har! !ust not be rebuttable throu%h
(urther debate/&
8raduall" Court be%an to rotect association& *iske v. 4ansas .1>29/
.Court re<ects (indin% that olitical art" constitution a!ounted to cri!inal
s"ndication/D $e .onge v. %regon .1>79/ .court (ound (irst a!end!ent
rotected erson,s attendance at Co!!unist art" !eetin%/D Herndon v.
,owrey .1>79/ .o$erturned con$iction o( erson ad$ocatin% (or eole to
$ote (or blac- sel(-deter!ination = distin%uished between ad$ocatin% (or
ideals and ad$ocatin% (or action/
o 2ncite!ent in 1122 and Red 5care
'he 5!ith #ct cri!inali0ed ad$ocac" o( (orce or $iolence to o$erthrow the
%o$ern!ent, and cri!inali0ed helin% to or%ani0e a %rou that belie$ed as such&
'he #ct was uheld as constitutional& [read 24-5] $ennis v. 2nited States
.1>51/ .Con$iction was (or helin% to or%ani0e a branch o( the Co!!unist
art", which belie$ed in o$erthrow o( the %o$ern!ent b" (orce& O$erruled
8itlow, and alied Clear and +resent dan%er in a !odi(ied (or! =
wei%hin% the %ra$it" o( the har! with its robabilit" = here thou%h the
robabilit" was s!all, the %ra$it" was serious, and the con$iction was
a((ir!ed& Richards oints out that the result !a" ha$e been di((erent i( the
anal"sis were as applied as oosed to facial in deter!inin%
constitutionalit"&
Retreat (ro! $ennis occurred therea(ter& 3ates v. 2nited States .1>59/
.o$erturned a con$iction under 5!ith #ct, distin%uishin% between ad$ocac"
o( ideals and action/D Scales v. 2nited States .1>J1/ .uheld con$iction, but
(ound that seci(ic intent and acti$e !e!bershi, as oosed to assi$e
!e!bershi, were needed/D &oto v. 2nited States .1>J1/ .Court o$erturned
con$iction (indin% that the e$idence o( ille%al ad$ocac" was not su((icient
enou%h/&
o )odern 2ncite!ent 'est
Clear and +resent Can%er test re:uires ad$ocac" o( an i!!ediate act o( $iolence or
ille%al act& Brandenburg v. %hio .1>J>/ .Con$iction o( incite!ent was o$erturned
(or tele$ised 333 rall" with $a%ue threats& Court reasoned that an act o( $iolence
had to be ad$ocated (or& O$erruled Whitney = adoted 1hitne" concurrence/D
Hess v /ndiana .1>97/ .o$erturned con$iction o( rotestor that threatened to bloc-
the street a%ain = court (ound there was no i!!ediate threat/D &AAC" v. Claiborne
Hardware .1>62/ .$a%ue threat o( conse:uences (or those i%norin% bo"cott was not
i!!ediate enou%h to be incite!ent = con$iction o$erruled/&
+rotected 5eech
o +ublic +laces
O((ensi$e 5eech in +ublic +laces
*ate 5eech is %enerall" rotected & [1094] &ational Socialist "arty v.
Skokie .1>99/ .uholdin% the ri%ht o( Ba0is to !arch in a redo!inantl"
;ewish co!!unit"& Found that neither (i%htin% words or hostile audience
e?cetions <usti(ied li!itin%/D $oe v. 2niversity of ich .@&C&)ich 1>6>/
and Corry v. Stanford .Cal 5uer& Ct& 1>>5/ [109>] .4ni$ersit" o( )ichi%an
and 5tan(ord 4ni$ersit" seech codes were struc- down as unconstitutional
b" lower (ederal courts and state courts&/D ).A.1. v. St "aul .1>>2/ .Court
o$erturns con$iction o( bias !oti$ated seech ordinance which barred
swasti-as and cross burnin%& *ere o((ense too- lace on ri$ate roert",
but accordin% to court,s reasonin%, would ha$e constitutionall" been barred
under a !ore neutral statute/D 1irginia v. Black .2007/ .5tatute ai!ed at
barrin% cross burnin% with an intent to inti!idate was struc- down as
unconstitutional (or bein% o$erbroad, thou%h the court reco%ni0ed that the
bar on burnin% with an atte!t to inti!idate was a constitutional ai!/&
B4' 5@@ Wisconsin v. itchell .1>>7/ .uholdin% hate cri!e law, court
distin%uished between seech and conduct/
o #r%u!ents (or re%ulatin% hate seech include incororatin% it into
%rou libel .Beauharnais was ne$er o$erruled = noted b" Blac-!un
in dissent (ro! 5!ith $& Collin/ , (i%htin% words, or as a searate
cate%or" o( unrotected seech& Others see it as i!ortant to
ad$ancin% e:ualit"&
o #r%u!ents a%ainst re%ulatin% hate seech ar%ue that it is undul"
aternalistic, and that it is a (utile and counter-roducti$e e?ercise
(or (ailin% to address the underl"in% causes&
+ublic Foru!s [122J]
Reasonable 'i!e +lace and )anner Restrictions can li!it seech&
o *istoricall", notion o( !andator" ublic (oru!s was not acceted&
assachusetts v. $avis .)ass 16>5, a((,d 45 16>9/ .%o$ern!ent
has absolute ri%ht to restrict seech on ublic roert" = here Boston
Co!!on/&
8raduall", court be%an to stri-e down arbitrar" er!it
re:uire!ents& Hague v. C/% .1>7>/ .struc- down ordinance
re:uirin% er!its to sea- in streets and ar-s = was
standardless and stron% otential (or arbitrar" denials/D Saia
v. &ew 3ork .1>46/ .struc- down ordinance barrin%
a!li(ication de$ices without er!ission o( olice chie(&/D
Staub v. Ba!ley .1>56/ .ordinance re:uirin% er!it (or
!e!bershi recruit!ent in dues a"in% or%ani0ations was
(aciall" in$alid/D Hynes v. ayor of %radell .1>9J/
.in$alidatin% ordinance re:uirin% ad$ance notice to olice
be(ore can$assin% or solicitin%/D ,akewood v. "lain $ealer
"ublishing Co. .1>66/ .stri-e down er!it re:uire!ent
be(ore lacin% newsrac-s on ublic roert"/D Watchtower
Bible # +ract Society v. Stratton .2002/ .in$alidated er!it
re:uire!ent (or door to door rosel"ti0ers/& B4' ob<ecti$e
criteria in er!it re:uire!ents !a" lead to the! bein%
uheld& Co! v. &ew Hampshire .1>41/ .+er!it re:uired to
ha$e arades on ublic streets as ublic sa(et" is le%iti!ate
%oal/
Court also be%an to in$alidate total co!!unications bans in
ublic (oru!s& [1271, class 42, read 76] Schneider v. State
.1>7>/ .in$alidated ban on distribution o( lea(lets = litter is
not le%iti!ate <usti(ication/D artin v. Struthers .1>47/
.in$alidated ban on distribution o( handbills to ho!es b"
rin%in%K-noc-in% at door = eole could ost si%ns statin%
the" didn,t want solicitors/D 4ovacs v. Cooper .1>4>/
.thou%h uholdin% ban on loud and raucous loudsea-ers,
indicated that (lat ban on loudsea-ers would be
unconstitutional/D City of ,adue v. (illeo .1>>4/ .stri-e
down ban on ostin% si%ns on residential roert" = clutter is
insu((icient <usti(ication/&
o +ublic Order and 5a(et" can be a reasonable <usti(ication & Co! v.
,ouisiana .1>J5/ .court in$alidated con$iction (or i!edin% (ree
(low on streetsKsidewal-s, (indin% that in ractice other %rous were
%i$en er!ission& 'o be $alid, a ti!eKlaceK!anner re%ulation !ust
be e$en handed in alication/D Heffron v. /nternational Society for
4rishna Consciousness .1>61/ .court uheld re:uire!ent that
%rous be con(ined to booths at the (air in order to enable the (ree
(low o( tra((ic& Reli%ious %rou clai!ed that its e?ercise deended
on (ace-to-(ace interactions/&
o #esthetics !a" be a <usti(ication (or a restriction & [1242]
etromedia v. San $iego .1>61/ .in$alidated re%ulation o(
billboards which had !an" e?cetions = !ust be e$en handed/D
embers of City Council v. +a!payers for 1incent .1>64/ .uheld
!unicial rohibition o( si%ns on ublic roert" = here utilit"
oles& 'hou%h si%ns were o( a olitical candidate, it was not
constitutionall" re:uired that less restricti$e !eans be used/D Clark
v. Community for Creative &on51iolence .1>64/ .Court uheld ar-
ser$ice rule which barred ca!in% in La(a"ette +ar- and the )all&
2t is a neutral ti!e lace and !anner restriction, and ca!in% is not
rotected s"!bolic seech/&
o 'ran:uilit", +ri$ac", and Reose !a" <usti(" re%ulations & Ward v.
)ock Against )acism .1>6>/ .uholds cit" re%ulation re:uirin% cit"
sound technicians and s"ste!s to control $olu!e o( concerts in
Central +ar-& Court (ound the re%ulation was narrowl" tailored to
%o$ern!ental interest in li!itin% e?cessi$e noise, and that
re:uire!ent o( narrowl" tailorin% does not !ean least restricti$e
!eans/
2n the abortion conte0tA *risby v. Schult- .1>66/ [1255, class
47, read 40] .uheld a (lat ban on (ocused ic-etin% o(
articular residences& )a<orit" reco%ni0ed ri%ht o( ri$ac" at
ho!e/D adsen v. Womens Health Center6 /nc. .1>>4/
.Found in<unction was not a content based restriction& Court
uheld (i?ed distance re:uire!ent to rotect access, but
struc- down 700 (oot (i?ed distance a!li(ication ban which
!a" ha$e barred %eneral rocessions throu%h a residential
nei%hborhood, ban on i!a%es obser$able, and other non-
access ro$isions/D Schenck v. "ro5Choice &etwork of
Western &ew 3ork .1>>9/ .Court uheld (i?ed distance
bu((ers, but struc- down (loatin% bu((er 0ones as burdenin%
!ore seech than was necessar"/D Hill v. Colorado .2000/
.uhold statute barrin% sea-ers (ro! aroachin% others to
hand out roa%anda without consent within ei%ht (eet o( a
!edical (acilit" = not a content re%ulation, but one o( where
seech occurs/
)andator" ublic (oru!s er!it little %o$ern!ental re%ulation& 'hese
include streets, ar-s, and increasin%l" caitol %rounds, libraries, and
!unicial theaters&
o Libraries can,t bar silent non-disruti$e rotests& Brown v.
,ouisiana .1>JJ/ [12J4] .silent se%re%ation rotest could not be
barred when there was no threat o( breach o( eace, and no showin%
others were disturbed/
o ,unicipal heaters are a ublic (oru!& Southeastern "romotions
v. Conrad .1>95/ [12J>] .holdin% that denial o( contro$ersial show
was unconstitutional/
o Capitol 1rounds are increasin%l" a ublic (oru!& 2nited States v.
(race .1>67/ .stri-in% down law barrin% disla"s o( !essa%es on
45 5ure!e Court %rounds = outer %rounds are indistin%uishable
(ro! other !andator" ublic (oru!s/D
Ciscretionar" ublic (oru!s er!it e$en-handed content-neutral re%ulation&
'hese include <ails, schools, airorts, !ilitar" bases, and other (or!s o(
ublic roert"&
o Jails can bar access o( rotesters& Adderley v. *lorida .1>JJ/
.uholds con$ictions o( rotesters on <ail roert", (indin% that the
warden has the authorit" to re%ulate beha$ior (or e((icient oeration
o( the rison/
o 2nter(erence with (chool oerations can be banned& (rayned v.
)ockford .1>92/ .uholdin% bar on loud rotests that !a" disrut
schools& Found the restriction reasonable in li%ht o( the acti$it"
occurrin% on the roert"/
o 'ublic ransportation can discri!inate in ad sace& ,ehman v.
Shaker Heights .1>94/ .uholdin% bar on ca!ai%n ad$ertise!ents
= busses were not ublic (oru!, but rather, ad sace was incidental
to the urose/
o ,ilitary .ases are not %enerall" a ublic (oru!& *lower v. 2nited
States .1>92/ .threw out con$iction (or distributin% lea(lets on
!ilitar" base streets when ublic had access to the streets/D (reer v.
Spock .1>9J/ .uheld ban on artisan seeches on !ilitar" base, and
distribution o( literature without rior aro$al = !ilitar" bases are
to train troos, and are not historicall" $iewed as a ublic (oru!/D
2nited States v. Albertini .1>65/ .!ilitar" bases are not a ublic
(oru! !erel" because the" oen to the ublic (or a articular e$ent/&
o %irport erminals are not ublic (oru!s, but distribution o(
literature cannot be co!letel" banned& /nternational Society for
4rishna Consciousness v. ,ee and ,ee v. /S4C%& .1>>2/ .(ound
that airorts were nonublic (oru!s, and that bans on solicitin%
!one" in the ter!inals were constitutional, but that bans on
distributin% literature were unreasonable, and thus not constitutional&
5ince nonublic (oru!, onl" a reasonableness standard is re:uired/&
o 5"!bolic 5eech
O,Brien test is the !easure o( constitutionalit" (or neutral laws burdenin% s"!bolic
seech& 'est re:uires consideration o(A
1hether the law is within the constitutional ower o( the state
1hether the law is ursuin% a le%iti!ate state interest
1hether the law is directed at action and not seech
2( it suresses seech, does it onl" suress as !uch is necessar"
2nited States v. %Brien .1>J6/ [1207, class 41, read 79] .uholdin% (ederal ban on
burnin% dra(t cards, and enu!eratin% the a(ore!entioned (our art test&/& B4' law
!ust be burdenin% seech& Arcara v. Cloud Books /nc. .1>6J/ .Court uholds
closin% o( boo- store where rostitution and solicitation occurred, reasonin% that
O,Brien test was inalicable, as it was not rotected e?ression/
Fla% desecration is rotected s"!bolic seech & Street v. &ew 3ork .1>J>/ .court
re$ersed con$iction (or (la% burnin% (indin% that words added an e?ressi$e
ele!ent = did not reach the :uestion o( whether the act itsel( was constitutional/D
Smith v. (oguen .1>94/ .con$iction (or wearin% (la% atch on ants was o$erturned
(or lac- o( clear standards and notice in the statute/D Spence v. Washington .1>94/
.o$erturned con$iction (or eace s"!bol on (la%, reasonin% that it was e?ressi$e
conduct/D +e!as v. .ohnson .1>6>/ [1212] .Court alies O,Brien test to (la%
burnin%, and (inds that there is no state interest in re$entin% a breach o( the eace,
and that the ri!ar" !oti$ation is to ro!ote a articular oint o( $iew/&
Le%islati$e atte!ts to rotect the (la% ost ;ohnson ha$e been struc- down&
2nited States v. 'ichman .1>>0/ .5tri-in% down Fla% +rotection #ct/&
Bude dancin% can be re%ulated & Barnes v. (len +heatre /nc. .1>>1/ .#lies
O,Brien test to uhold asties and %-strin% re:uire!ent (or li$e nude dancers&
Finds the le%islation was tar%eted at a le%iti!ate state interest, and was unrelated to
the suression o( seech/D City of 'rie v. "aps A.. .2000/ .Court uheld state
ban on totall" nude erotic dancin% b" wo!en& +luralit" (ound it was content
neutral, and related to suressin% secondar" e((ects/
o Ca!ai%n ad$ertisin% as seech
Ca!ai%n ad$ertisin% is a (or! o( seech that is sub<ect to re%ulation & Buckley v.
1aleo .1>9J/ [1424, read 4J] .uholdin% (ederal ca!ai%n li!its on indi$idual
contributions and disclosure re:uire!ents, but stri-in% down candidate and
indeendent e?enditure li!its& 4holdin% ublic (unds (or olitical ca!ai%ns/D
&i!on v. Shrink issouri (overnment "AC .2000/ .rea((ir!in% the
contributionKe?enditure distinction, and uholdin% state ca!ai%n li!its (or state
o((ice see-ers/&
Candidate !essa%es are rotected& Brown v. Hartlage .1>62/ .o$erturn con$iction
under anti-corrution statute (or candidate that ro!ised to reduce his salar" i(
elected/
Contribution li!its
#re accetable when laced on +#C5& California edical Assn v. *'C
.1>61/ [147J] But cannot restrict +#C %i$in% !erel" on account o( the
candidate recei$in% (ederal (unds& *'C v. &ational Conservative "AC
.1>65/&
Li!its are not accetable (or ballot !easures& Citi-ens Against )ent
Control v. Berkeley .1>61/ [144J] .Buc-le" rationale (or li!its on candidate
donations does not hold (or ballot !easures/D eyer v. (rant .1>66/ .stri-es
down ban on aid si%nature %atherers/&
2ndeendent @?enditures b" olitical arties and ad$ocac" %rous are rotected
when uncoordinated, but unrotected when coordinated& Colorado )epublican
*ederal Campaign Committee v. *'C 7Colorado /8 .1>>J/ [1476] .rotectin%
uncoordinated sendin% b" olitical arties/D Colorado )epublican *ederal
Campaign Committee v. *'C 7Colorado //8 .2001/ .uhold li!its on coordinated
sendin% b" olitical arties/D cConnell v. *ederal 'lection Commission .2007/
[1446] .4holdin% ro$isions o( (ederal law barrin% coordinated sendin% between
ad$ocac" %rous and candidate ca!ai%ns, and restrictin% indeendent
e?enditures (or a eriod i!!ediatel" rior to elections& #lso struc- down ban on
!inors !a-in% contributions/
Cororations
$or profit corporations ha$e the ri%ht to !a-e contributions and
e?enditures, but can be (orced to se%re%ate (unds used (or ad$ocac"& *irst
&ational Bank of Boston v. Bellotti .1>96/ [1440] .holdin% that ro(it
cororations ha$e ri%ht to !a-e contributions and e?enditures/D *'C v.
assachusetts Citi-ens for ,ife .1>6J/ .notin% that ro(it cororations can
be (orced to se%re%ate ad$ocac" (unds&/D Austin v. ichigan Chamber of
Commerce .1>>0/ .(or ro(it cororations can be (orced to !aintain
searate accounts (or indeendent e?enditures&/&
)onprofit corporations can be restricted in (undraisin% and donations, and
while able to indeendentl" e?end and !a-e contributions, can be re:uired
to contribute onl" (ro! searate accounts& *'C v. &ational )ight to Work
Committee .1>62/ [1447] .restrictions on (undraisin% and sendin% li!its
are constitutional (or nonro(its and unions/D *'C v. assachusetts
Citi-ens for ,ife .1>6J/ .notin% that non-ro(it ad$ocac" or%ani0ations
cannot be (orced to se%re%ate (unds used (or indeendent e?enditures/D
*'C v. Beaumont .2007/ [1444] .ca!ai%n contributions can be re:uired
(ro! searate accounts&/
4nrotected 5eech
o 2ncite!ent, Fi%htin% 1ords, *ostile #udiences
2ncite!ent, which ro$o-es the $iolence o( an audience, can be barred when it
ad$ocates an i!!ediate act o( $iolence or ille%al act that oses a serious har! to
the state .Brandenbur%D 1hitne" Concurrence/
Fi%htin% 1ords, which ro$o-e $iolence toward the sea-er, has been narrowed as
a class o( unrotected seech&
)ere O((ense is insu((icient& Cantwell v. Connecticut .1>40/ [107>]
.Reli%ious rosel"ti0in% was o((ensi$e to the ublic, and threatened breach
o( the eace, but was not able to be barred on account o( the dan%er to the
ublic/
)ust ro$o-e a reasonable erson& Chaplinsky v. &ew Hampshire .1>42/
.Court created (i%htin% words doctrine, and uheld law ai!ed at barrin%
seech that would ro$o-e a reasonable erson at ro$o-in% a (i%ht&/
Oitalit" o( the (i%htin% words doctrine is less than certain& [1041] 5ince
1>42, no (i%htin% words con$ictions ha$e been uheld b" the court&
(ooding v. Wilson .1>92/ .struc- down (i%htin% words statute (or bein%
o$erbroad = included orobrious words or abusi$e lan%ua%e which tended
to breach the eace/D )osenfeld v. &ew .ersey .1>92/ .struc- down
alication o( (i%htin% words to use o( mother fuc-er at school board
!eetin%/D ,ewis v. &ew %rleans .1>92/ .struc- down alication o(
disorderl" erson statute to wo!an that called olice %od da!n !other
(uc-ers/D Brown v. %klahoma .1>92/ .struc- down alication o( a (i%htin%
words law in uni$ersit" chael/D +e!as v. .ohnson .1>6>/ .flag burning
was not a-in to (i%htin% words/D Cohen v. California .1>91/ [class 74, 1047]
.Gfuc- the draftH <ac-et worn into courthouse& Court o$erturned
con$iction, (indin% it was not le%all" obscene, was not (i%htin% words as it
wasn,t directed at a erson, and not incite!ent as there is no clear and
resent dan%er& )ere o((ense is not enou%h/
*ostile #udiences [1046] can lead to seech bein% barred solel" on account o( the
content, and the courts %enerall" use a balancin% rather than cate%orical aroach
as in (i%htin% words& #t the sa!e ti!e, this doctrine has been si%ni(icantl" li!ited&
1hen hostilit" in a crowd is %enerated b" the content o( the seech, it can
be ter!inated& *einer v. &ew 3ork .1>51/ .uholdin% a disorderl" conduct
con$iction o( a sea-er who %enerated a hostile crowd, and did not sto
when told to& Blac-,s dissent ar%ued that the dut" o( the olice was to
rotect the sea-er/ B4' 5@@ +erminiello v. Chicago .1>4>/ .'hou%h not
reachin% the hostile audience issue, !a<orit" oinion noted that seech that
usets re<udices and sensibilities cannot be barred unless it is clear and
resentl" roducin% a serious substanti$e ublic e$il/
)ost seeches and rotests are constitutional, and cannot be reached b" this
narrow doctrine& 'dwards v. South Carolina .1>J7/ .o$erturned con$iction
o( eace(ul rotestors at state caitol rotestin% se%re%ation/D Co! v.
,ouisiana .1>J5/ .o$erturned con$iction o( !inister who or%ani0ed
eace(ul rotest o( i!risoned teens, (indin% that ri%ht to (ree seech and
asse!bl" were in(rin%ed/D (regory v. Chicago .1>J>/ .O$erturned
con$iction o( eace(ul rotest that did not diserse uon re:uest/
+er!its (or seeches li-el" to %enerate hostile audiences are not %enerall"
constitutional& 4un- v. &ew 3ork .1>51/ .er!it re:uire!ents (or reli%ious
seeches were dee!ed to be an unconstitutional rior restraint/D *orsyth
County (eorgia v. &ationalist ovement8 .1>>2/ .Court struc- down as
(aciall" in$alid a er!it s"ste! that char%ed (or rotection due to hostile
audiences, and er!itted den"in% the er!it when the (ee was not aid/
o Libel, +ri$ac"
Libel is not rotected seech, thou%h its threshold is not eas" to satis("& 'raditional
ele!ents re:uire ublicationKco!!unication, o( a false fact, about an indi$idual,
which has a tendenc" to har! their reutation in their re(erence %rou, and causes
da!a%es& [class 7J]
'he idea o( %rou libel, while not o$erruled, is %enerall" discredited&
Beauharnais v. /llinois .1>52/ [1054] .4held %rou libel law which
rohibited ublications that libeled %rous o( eole/&
Libel a%ainst ublic o((icials and (i%ures !ust show actual !alice & &ew
3ork +imes v. Sullivan .1>J4/ .Bewsaer ad, with !inor (actual errors,
was critical o( olice chie( in )ont%o!er" #L& Court o$erturned
con$iction (indin% that technical untruths don,t su((ice (or cri!inali0in% =
e$en untruths can ha$e $alue& Rules that ublic o((icials !ust show actual
!alice, i&e& -nowin% or rec-less disre%ard o( the truth&/D Curtis "ublishing
Co. v. Butts and Associated "ress v. Walker .1>J9/ .e?tendin% BN 'i!es
doctrine to ublic (i%ures = athletic director and retired %eneral
resecti$el"/&
o 5o!e subse:uent cases $iew ublic (i%ures narrowl"& 3e" see!s to
be urosel" a$ailin% onesel( to ublicit"& [10J7] (ert- v. )obert
Welch .1>94/ .ro!inent law"er acti$e in his co!!unit" was
ri$ate (i%ure/D +ime6 /nc. v. *irestone .1>9J/ .+al! Beach societ"
di$orcee was not ublic (i%ure/D Hutchinson v. "ro!mire .1>9>/
.(ederall" (unded scientist was not a ublic (i%ure/D Wolston v.
)eaders $igest Assn /nc .1>9>/ .erson con$icted in 1>56 (or
conte!t in %rand <ur" in$esti%ation o( 5o$iet esiona%e was not
ublic (i%ure (or 1>94 alle%ation o( bein% 5o$iet a%ent/&
Libel a%ainst ri$ate (i%ures is easier to show, as the" are entitled to !ore
rotection than ublic (i%ures& (ert- v. )obert Welch .1>94/ .holdin% that
states can enu!erate their own standards (or libel a%ainst ri$ate
indi$iduals, but that da!a%es should onl" co!ensate actual har!& *ere a
law"er de(a!ed b" a ;ohn Birch 5ociet" !a%a0ine was dee!ed a ri$ate
indi$idual, and was able to reco$er/&
o 2( the sub<ect !atter is o( ublic concern, ri$ate (i%ures can be
discussed& )osenbloom v. etromedia .1>90/ .(ocus on adult
!a%a0ines <usti(ied includin% a distributor in the discussion = court
said it does not beco!e non-discussable on account o( includin% a
ri$ate indi$idual&/
o 2( the sub<ect !atter is o( ri$ate concern, there is little rotection
(or (alsities& $un # Bradstreet v. (reenmoss Builders .1>65/
.uholdin% da!a%es award (or ri$ate contractor da!a%ed in (alse
credit reortin%/&
+ri$ac" and other tort rotections
Four %eneral !ani(estationsA
o +ublic disclosure o( ri$ate (acts, when hi%hl" o((ensi$e and not o(
ublic concern
o )isaroriation
o False li%ht ortra"als that are o((ensi$e .thou%h truth is a de(ense/
o 2ntrusion in to ri$ate li(e in a wa" that is o((ensi$e
'ort re!edies !ust in$ol$e (alse (actual state!ents !ade with actual !alice
to rotect ublic o((icials and (i%ures& Hustler aga-ine v. *alwell .1>66/
[10J>] .Court denied relie( in intentional in(liction o( e!otional distress tort
to ublic (i%ure that was sub<ect o( cruel arod" ad& Court re:uired (alse
(actual state!ent to be !ade with actual !alice/&
'ort re!edies are broader in rotectin% ri$ate indi$iduals, unless a !atter
o( ublic record or ublic concern&
o False li%ht ortra"als o( ri$ate indi$iduals are not rotected when
!ade with -nowin% (alsit"& +ime6 /nc. v. Hill .1>J9/ .(alse li%ht
ortra"al o( the *ill (a!il", who was held hosta%e, was barred&
Court re$ersed da!a%es award, (indin% that stories on !atters o(
ublic interest could not be co!ensated (or unless -nowin%l"
(alse/&
o Cisclosure o( !atters o( ublic record are rotected& Co!
Broadcasting Corp. v. Cohn .1>95/ .reublication o( rae $icti!s
na!es was constitutional, as it was a !atter o( ublic court records/D
*lorida Star v. B...*. .1>6>/ .newsaer ublication o( na!e o(
$icti! o( se?ual o((ense was constitutional, as it was obtained (ro!
olice reort, which was ublic/&
o 2lle%all" obtained in(or!ation !a" be able to be distributed, i( it is
o( ublic concern& Bartnicki v. 1opper .2001/ .ban on radio show,s
broadcast o( an ille%all" obtained third art" con$ersation was
unconstitutional, as the con$ersation was one o( ublic concern&/
[1092]
o )edia cannot aroriate er(or!er,s act without consent&
9acchini v. Scripps5Howard Broadcasting Co. .1>99/ .4holdin%
award a%ainst !edia (or rebroadcastin% hu!an cannonballer,s act&/
o Obscenit" [10>4]
5eech !eetin% the le%al de(inition o( obscenit" is not rotected b" the First
#!end!ent, but ri$ate ossession is rotected& )oth v. 2S, )oth v. 2nited States,
Alberts v. California .1>59/ [read 29] .holdin% that obscenit" is not constitutionall"
rotected& #r%ued that "ou should use the standard o( an a$era%e erson, al"in%
conte!orar" co!!unit" standards, and $iewin% the wor- as a whole&/D 4ingsley
/ntl "ictures Corp. v. )egents .1>5>/ .Court o$erturned state law den"in% licenses
to theaters showin% adult !o$ies = se?ual i!!oralit" is not obscene/D Stanley v.
(eorgia .1>J>/ .Court o$erturned law barrin% ri$ate ossession o( obscene
!aterials = (irst a!end!ent rotects ossession/D 2nited States v. )eidel .1>91/
.+ost 5tanle", a((ir!ed that cri!inali0ation o( distribution o( obscene !aterials was
still constitutional/D iller v. California .1>97/ .court a((ir!s constitutionalit" o(
cri!inali0in% obscene !aterial, but rede(ines Roth standards/ +ursuant to )iller,
trier o( (act is to considerA
1hether a$era%e erson, loo-in% at the wor- as a whole, would (ind that it
aeals to rurient interests
1hether the wor- deicts or describes in a atentl" o((ensi$e wa", se?ual
conduct seci(icall" de(ined under alicable law&
o Local standards !atter& Hamling v. 2nited States .1>94/ .al"in%
local standards/D Smith v. 2nited States .1>99/ .intra state
distribution in state without standards was still sub<ect to local
standards/
1hether the wor- ta-en as a whole, lac-s serious literar", artistic, olitical,
or scienti(ic $alue&
o )ainstrea! wor-s are rotected& .enkins v. (eorgia .1>97/
.o$errulin% obscenit" con$iction (or !ainstrea! award no!inated
!o$ie about se?, (indin% that national standards are the %uidin%
ones/&
o GseriousH $alue o(ten er!its e?ert testi!on" to establish&
5ea-in% onl" to consentin% adults does not rotect distribution o( obscenit"&
"aris Adult +heatre / v. Slaton .1>97/ [1104, read 2>] .re<ectin% notion that ad!ission
onl" o( a"in% and consentin% adults e?e!ted theatre (ro! obscenit" law&/ B4'
Stanley rotects an indi$idual,s ri$ate ossession&
;usti(ications (or obscenit" law include debase!ent o( indi$idual character, o((ense
to unwillin% onloo-ers, induce!ent o( cri!inal conduct, erodin% !oral standards,
and har!in% the social (abric& [110>-1110]
Child +orno%rah" is unrotected, as is ri$ate ossession, but the law barrin% it
cannot be o$erl" burdenso!e& &ew 3ork v. *erber .1>62/ [1114] .Court re<ected
(irst a!end!ent challen%e to state child orn law, e$en thou%h not otherwise
!eetin% the le%al de(inition o( obscenit"& Court reasoned that there was a
le%iti!ate state interest in rotectin% the e?loitation o( the abuse o( children/D
%sborne v. %hio .1>>0/ .Finds that 5tanle" does not e?tend to child orno%rah" =
e$en ri$ate ossession can be cri!inali0ed/ B4' 5@@ Ashcroft v. *ree Speech
Coalition .2002/ .$irtual child orno%rah" is rotected, as its ban under the Child
+orno%rah" +re$ention #ct restricted too !uch le%iti!ate seech/&
5ubordination o( 1o!en is an insu((icient %rounds (or censorin% orno%rah"&
American Booksellers Assn v. Hudnut .9
th
Cir a((,d b" 45 1>6J/ [1122, read 2>]
.Court in$alidated ordinance that barred orno%rah" that subordinated wo!en&
Found that it was an unconstitutional content-based restriction, and that the e((ects
o( such ortra"als are insu((icient to <usti(" their ban&/
5e?uall" e?licit but non-obscene !aterials can ha$e restricted access, but cannot
be banned outri%ht& 2n so!e sense, thou%h ne$er e?licitl" held as such, such
seech has recei$ed less rotection (ro! the court&
Budit" Bans are not er!itted& 'r-no-nik v. .acksonville .1>95/ .re<ectin%
ban on non-obscene nudit" in !o$ies la"ed at dri$e in theaters = can onl"
bar it when intrusions into ersonal ri$ac" are una$oidable/D Schad v.
ount 'phraim .1>61/ [112>, read 70, class 76] .Court struc- down ban on li$e
nude dancin%/ B4' 5@@ Barnes v. (len +heater .1>>1/ .uholdin% bar on
ublic nudit" as alied to nude dancin%/
@ro%enous Ponin% laws are %enerall" constitutional, ri!aril" as a result o(
the secondar" e((ects o( such businesses& 3oung v. American ini +heaters
.1>9J/ .Court uheld 0onin% law barrin% location within so !an" (eet o(
other establish!ents = scatter 0onin%& +luralit" ar%ued that such seech was
entitled to a lower le$el o( rotection&/D )enton v. "laytime +heatres6 /nc.
.1>6J/ [1177, class 76] .Court uheld 0onin% law concentratin% such
businesses in one locale = concentration 0onin%& Oinion (ocused on the
secondar" e((ects that such businesses ha$e/D City of ,os Angeles v.
Alameda Books .2002/ .court held that su((icienc" o( secondar" e((ects
could not be deter!ined in this case on su!!ar" <ud%!ent& +luralit" was
de(erential with e$idence sulied, and (i(th $ote ar%ued that inter!ediate
scrutin" was needed to balance First #!end!ent interests/&
2ndecenc" bans in co!!unications !edia cannot be done outri%ht, but
so!e re%ulation is er!itted& *CC v. "acifica *oundation .1>96/ [1176, read
71, class 7>] .8eor%e Carlin,s seech ro!ted a warnin% (ro! the FCC&
Court uheld the re%ulation o( the ti!e such indecent seech could be aired
on radio, as it reached ri$ate real!s& +luralit" ar%ued (or lesser cate%or"
o( rotection, but additional !a<orit" $otes re<ected/
Cati$e audiences !a" ha$e li!ited rotection (ro! indecenc", but not
other disa%reeable seech& )owan v. 2.S. "ost %ffice $epartment .1>90/
.court uheld (ederal law er!ittin% reciients to ot out o( se?uall"
ro$ocati$e !ailin%s/ B4' 5@@ Consolidated 'dison v. "ublic Service
Commn .1>60/ .holdin% that Con @d could not be barred (ro! includin%
olitical !essa%es with utilit" bills/D Bolger v. 3oungs $rug "roducts Corp
.5tri-in% down bar on unsolicited !ailin%s ertainin% to contraceti$es =
!ailin%s were aroriate (or adults, and were rotected/&
'otal indecenc" bans are not er!itted& Sable Communications /nc. v. *CC
.1>6>/ [1145] .5tri-in% down (ederal bar on dial a orn >00 nu!bers/D
$enver Area 'ducational +elecommunications Consortium v. *CC .1>>J/
.uheld (ederal law er!ittin% cable oerators to bar obscene ro%ra!!in%,
but struc- down ro$isions o( the law allowin% FCC to re%ulate
obsceneKe?licit content, and (orced channelin% and bloc-in% unless
subscribers ot in& +luralit" (a$ored a balancin% aroach/D 2nited States v.
"layboy 'ntertainment (roup .2000/ .al"in% strict scrutin", court struc-
down (ederal re%ulation o( cable indecenc" that re:uired scra!blin% and
con(inin% to late ni%ht hours& Court (ound less restricti$e !eans were
otentiall" e((ecti$e, and burden was on the censor to show the" were not/&
2nternet censorshi o( indecenc" cannot be o$erl" restricti$e& )eno v.
American Civil ,iberties 2nion .1>>9/ .Court struc- down statute which
barred showin%sKtrans!issions where children would -nowin%l" %ain access
= burden was on %o$ern!ent to show that less restricti$e !eans would be
ine((ecti$e/D Ashcroft v. American Civil ,iberties 2nion .2002/ .Court
re<ected ar%u!ent that re$ised CO+# was (aciall" in$alid (or use o(
co!!unit" standards/D Ashcroft v. American Civil ,iberties 2nion .2004/
.Court a((ir!ed in<unction on the %rounds that the %o$ern!ent would li-el"
(ail in showin% that the less restricti$e !eans would be ine((ecti$e/&
o #d$ertisin% and other Co!!ercial 5eech [1156]
Co!!ercial seech is now a lower $alue rotected seech .as oosed to its
ori%inal doctrinal e?clusion (ro! First #!end!ent rotection/
*istoricall", co!!ercial seech was not rotected b" the First #!end!ent&
1alentine v. Chrestensen .1>42/ .First #!end!ent i!osed no restraint on
urel" co!!ercial ad$ertisin%/D "ittsburgh "ress Co. v. "ittsburgh Human
)elations Commn .1>97/ .bar on %ender desi%nated e!lo"!ent ads in
newsaers was uheld as First #!end!ent did not reach co!!ercial
ad$ertise!ents& B4' Bigelow v. 1irginia .1>95/ !ar-ed a chan%e when
the court struc- down a cri!inali0ation o( ad$ertisin% out o( state abortions&
Co!!ercial seech is resentl" a lower $alue rotected (or! o( seech &
1irginia "harmacy Board v. 1irginia Citi-ens Consumer Council .1>9J/
[read 77, 11J0, class 40] .Court stri-es down ban on ad$ertisin% rices o( dru%s
at har!acies, (indin% that while co!!ercial seech can le%iti!atel" be
re%ulated, it cannot be banned in a wa" that i!edes the (ree (low o(
truth(ul in(or!ation&/D ,inmark Associates v. Willingboro .1>99/ .e?tends
Oir%inia +har!ac" to rotect real estate G(or saleH si%ns/D Carey v.
"opulation Services /ntl .1>99/ .ban on ad$ertisin% contraceti$es is
unconstitutional/D Bates v. State Bar of Ari-ona .1>99/ .stri-es down bar on
law"er rate ad$ertise!ents/D /n )e "rimus .1>96/ .le%al ad$ice solicitation
(ro! #CL4 uheld/D /n )e ).... .1>62/ .stri-e down re%ulations on
law"er ad$ertisin% = re%ulations o( !isleadin% ad$ertise!ents !ust be
narrowl" drawn/D 9auderer v. %ffice of $isciplinary Counsel .1>65/
.otentiall" o((ensi$e drawin%s constitutional in law"er ads/D Shapero v.
4entucky Bar Assn .1>66/ .stri-in% down tar%eted direct !ail solicitations
(ro! law"ers ai!ed at rotectin% $ulnerable eole (ro! (eelin%
o$erwhel!ed/D "eel v. Attorney )egistration and $isciplinary Commn of
/ll .1>>0/ .er!itted letterhead ad$ertise!ent o( le%iti!ate certi(ications (or
attorne"/D 'denfield v. *ane .1>>7/ .struc- down ban on C+#s (ro!
solicitin%/D /bane- v. *lorida Board of Accountability .1>>4/ .er!itted
law"ers to ad$ertise the" were C+#s/ B4' 5@@ %hralik v. %hio State Bar
Association .1>96/ .uholdin% in erson law"er solicitation ban where state
(inds li-elihood o( ad$erse e((ects/D *lorida Bar v. Went *or /t6 /nc. .1>>5/
.uheld 70 da" state restriction on direct !ail (ro! attorne"s to in<ur"
$icti!s, (indin% a si%ni(icant state interest/
o )ere addition o( so!e in(or!ation does not re!o$e (ro!
co!!ercial real!& Bolger v. 3oungs $rug "roducts Corp .1>67/
.inclusion o( in(or!ational a!hlets did not !ean contraceti$e
ad$ertise!ent !ailin%s were non co!!ercial, but court still (ound
rotected/D Board of +rustees6 State 2niv. of &ew 3ork v. *o! .1>6>/
.inclusion o( ho!e!a-in% ad$ice in 'uerware arties did not
!a-e the! non-co!!ercial/
o Ce(inition o( co!!ercial seech does not include all acti$ities that
include ro(it !oti$es& *irst &ational Bank v. Bellotti .cororate
ad$ocac" (or business interests in olitical ca!ai%n en<o"ed (ull
First #!end!ent rotection/
5tandard o( re$iew
Co!!ercial re%ulation o( a truthful and non2misleading advertisement
of a lawful transaction is constitutional i( it directly advances a
substantial governmental interest b" !eans that are not more e0tensive
than necessary& Central Hudson (as v. "ublic Service Commn .1>60/
[1197, read 74, class 40] .Court in$alidated restriction on utilities ad$ertisin% to
%enerate de!and (or electricit"& @nu!erated the a(ore!entioned (our art
standard, and (ound the ban wantin% (or (ailure to !eet the (ourth ron%/&
5o!e <ustices ha$e ad$ocated (or strict scrutin", but the" ha$e ne$er
co!!anded a !a<orit"&
Re%ulation does not ha$e to be the least restricti$e alternati$e to be
constitutional& Board of +rustees6 State 2niv. of &ew 3ork v. *o! .1>6>/ .in
uholdin% bar on 'uerware art", court re<ected notion that Gno !ore
e?tensi$e than necessar"H !eant least restricti$e, rather, it !eans
aroriate/
Ci((erential treat!ent !a" re:uire a uni:uel" co!!ercial har! & Co!are
etromedia /nc. v. San $iego .1>61/ .uholdin% ordinance,s re%ulation o(
co!!ercial billboards while stri-in% its re%ulation o( non-co!!ercial
billboards/ with City of Cincinnati v. $iscovery &etwork /nc. .1>>7/ [1199]
.2n conte?t o( news rac-s, court held that co!!ercial seech could not be
treated di((erentl" (or aesthetic or sa(et" uroses absent distinct
co!!ercial har!/& B4' 5@@ ,os Angeles "olice $epartment v. 2nited
)eporting .1>>>/ .allowin% di((erential treat!ent (or disclosure o( arrest
records when intended to be used (or co!!ercial uroses/&
Oice e?cetion to co!!ercial seech has been seriousl" :uestioned &
"osadas de "uerto )ico Assocs v. +ourism Company of "uerto )ico .1>6J/
.alied Central *udson test, and (ound that bar on ad$ertisin% le%al
%a!blin% to +uerto Ricans was constitutional/D 2nited States v. 'dge
Broadcasting Co. .1>>7/ [1160, read 75] .4held (ederal law barrin%
broadcast o( lotter" ads sa$e (or stations in states where the lotter" is le%al/
B4' 5@@ )ubin v. Coors Brewing Co. .1>>5/ .5truc- down (ederal law
re:uirin% alcohol content to be disla"ed on labels, (indin% that thou%h
health interests were $alid, the re%ulation did not ad$ance the interests, and
was !ore e?tensi$e than necessar"& Re<ected the notion o( a $ice e?cetion
to co!!ercial ad$ertisin%&/D :: ,i;uormart6 /nc. v. )hode /sland .1>>J/
[1162] .5truc- down co!lete ban on li:uor ad$ertisin%& ;ustices di((ered on
reasonin%, but 5te$ens luralit" re<ected notion o( a $ice e?cetion&
Central *udson Coctrine increasin%l" in$alidates co!!ercial seech
re%ulations& (lickman v. Wileman Bros. .1>>9/ .thou%h not reachin% the
seech issue as (ees (or %eneric (ruit ad$ertisin% were not (ound to be
co!elled seech, dissents ar%ued that it was seech, and would (ail Central
*udson/D (reater &ew %rleans Broadcasting Association v. 2nited States
.1>>>/ .court unani!ousl" struc- down (ederal ban on ad$ertisin% lotteries
and %a!blin%/D ,orillard +obacco Co. v. )eilly .2001/ [116>] .court struc-
down state tobacco ad$ertisin% re%ulations, (indin% the! unable to !eet
(ourth ron% o( Central *udson/D +hompson v. Western States edical
Center .2002/ .struc- down ban on ad$ertisin% co!ound dru%s, (indin%
(ailure o( (ourth ron% as not narrowl" tailored/&
2!er!issible For!s o( 5eech Restricti$e Law include O$erbroad laws, Oa%ue laws, and rior
restraints&
o O$erbreadth [1774]
'hou%h a %o$ern!ental restriction o( seech !a" be constitutional as alied, i( it
is (aciall" o$erl" broad, it !a" be in$alidated on that %rounds& (ooding v. Wilson
.1>92/ .o$erturned con$iction o( antiwar de!onstrator (or usin% orobrious words
and abusi$e lan%ua%e = thou%h threats could otherwise be cri!inali0ed, law was
o$erbroad/D ).A.1. v. City of St. "aul .1>>2/ .1hite,s Concurrence noted that
barrin% racist s"!bols that caused an%er or alar! was o$erbroad in (i%htin% words
statute/&
O$erbreadth anal"sis is uni:ue in two resects& First, it does not consider whether
the etitioner,s actions are roerl" barred, as it is a (acial challen%e& 5econd, it
has uni:ue standin% rules, as "ou can brin% u the interests o( non-arties&
5ubstantial o$erbreadth !a" be re:uired where the seech includes conduct & #
(indin% o( substantial o$erbreadth re:uires that the statute be so broad and
restricti$e as to deter !uch le%iti!ate seech& Broadrick v. %klahoma .1>97/ [177J]
.restrictin% reach o( the o$erbreadth doctrine where the rotected seech in$ol$es
conduct = here in the conte?t o( li!itin% ci$il ser$ants (ro! artisan acti$it"&
Brennan dissent oints out that Gsubstantial o$erbreadthH is not de(ined and
unclear&/D City Council v. +a!payers for 1incent .1>64/ .5te$ens !a<orit" oinion
noted that there is no e?act de(inition o( substantial o$erbreadth, but that it !ust be
clear that the statute oses a realistic dan%er o( si%ni(icantl" co!ro!isin% the First
#!end!ent ri%hts o( nonarties/D &ew 3ork v. *erber .1>62/ .re<ected o$erbreadth
challen%e to child orno%rah" law, (indin% that the rotected interests were !inor
in co!arison to what was banned/D B4' 5@@ Ashcroft v. *ree Speech Coalition
.2002/ .stri-in% down Child +orn +re$ention #ct on substantial o$erbreadth
%rounds (or its reach o( di%ital i!a%es and deictions o( children/D 1irginia v.
Hicks .2007/ .court re<ects First #!end!ent challen%e to ublic housin%
de$elo!ent,s olic" o( controlled entr" (or (ailure to !eet substantial o$erbreadth
threshold&/
'he o$erbreadth anal"sis has been narrowed in reach & Brockett v. Spokane Arcades
/nc. .1>65/ [1741] .'hou%h in$alidatin% state obscenit" law entirel", court said that
when ossible to narrow the law to constitutional li!its, that is the roer course o(
action, not co!lete in$alidation/
But not in the conte?t o( (undraisin%& Schaumburg v. Citi-ens for Better
'nvironment .1>60/ .stri-in% down ordinance barrin% solicitations b"
charitable or%ani0ations that used less than 95Q o( receits (or charitable
use = artial in$alidation not an otion/D Secretary of State v. .oseph H.
unson .1>64/ .as in 5chau!bur%, in$alidates charitable solicitation law/D
)iley v. &ational *ederation of the Blind .1>66/ .in$alidatin% law i!osin%
reasonable (ee li!its (or (undraisers&/ B4' 5@@ /llinois v. +elemarketing
Associates /nc. .2007/ .uholdin% li!it on abilit" o( (undraisers to use
!isleadin% state!ents = 1
st
#!end!ent does not rotect (raud&/
Le%islati$e narrowin% o( law does not eli!inate the otential (or o$erbreadth
anal"sis& assachusetts v. %akes .1>6>/ .subse:uent le%islati$e a!end!ent does
not re$ent an o$erbreadth e?a!ination/& ;udicial narrowin% does end the
o$erbreadth anal"sis& %sborne v. %hio .1>>0/ .in child orn conte?t, <udicial
narrowin% o( otherwise o$erbroad law was (ound to end the o$erbreadth concern/&
'hou%h narrowed, o$erbreadth anal"sis re!ains $iable& Houston v. Hill .1>69/
.5tatute barrin% inter(erence with olice was in$alidated/D Board of Airport
Commissioners v. .ews for .esus .1>69/ .Bar on seech in airorts was o$erbroad
and in$alid/
o Oa%ueness [1749]
# statute is unconstitutionall" $a%ue i( reasonable eole di((er on what conduct is
barred b" the statute = it !ust ro$ide ade:uate notice& Connally v. (eneral
Construction Co. .1>2J/D .ordan v. $e(eorge .1>51/&
)ust ro$ide ade:uate %uidance& Coates v. Cincinnati .1>91/ .in$alidate
bar on anno"in% asse!blin% on sidewal-s = unascertainable standard/ B4'
5@@ (rayned v. )ockford .1>92/ .sustainin% anti noise ordinance near
school buildin%s as it would li-el" be interreted in a consistent wa"/&
First #!end!ent $& Cue +rocess = in the (irst a!end!ent conte?t, (indin% o(
$a%ueness %enerall" results in (acial in$alidation, whereas in due rocess conte?t, it
results in a narrowin%&
Oa%ueness does not reach !atters o( ublic subsidies (or seech& &ational
'ndowment for the Arts v. *inley .1>>6/ .uholdin% $a%ue decenc" standards (or
B@# = when %o$ern!ent is the atron, it is (ree to <ud%e itsel(/&
o +rior Restraint [1750, read 47]
+rior Restraints are al!ost alwa"s unconstitutional, e$en i( le%iti!atel" unished
a(ter the (act&
Licensin% statutes to er!it seech are %enerall" in$alid (or er!ittin%
ad!inistrati$e discretion& ,ovell v. (riffin .1>76/ .er!it re:uire!ent (or
distributin% written !aterials (aciall" in$alid/D ,akewood v. "lain $ealer
"ublishing Co. .1>66/ .struc- down er!it re:uire!ent (or newsaer
rac-s& Court declared that facial challenges to licensing statutes were
appropriate where administrative actors can discriminate on the basis
of content/&
o +rocedural sa(e%uards are re:uired when licensin% statutes are
uheld& *reedman v. aryland .1>J5/ .struc- down licensin%
statute on !o$ies& Re:uired rocedural sa(e%uards (or such a law to
be constitutional, includin% uttin% the burden on showin% it is
unrotected seech on the censor, ro$ision o( an aeal (ro!
censor,s decision, and ro!t <udicial ad<udication o( the clai!&/D
*W<"BS /nc. v. $allas .1>>0/ .Court relied on Freed!an to stri-e
down se?uall" oriented licensin% sche!e = (ound there was no ti!e
li!it (or (inal decision/ B4' 5@@ +homas v. Chicago "ark $istrict
.2002/ .holdin% that Freed!an standards do not al" to er!it
re:uire!ent (or lar%e scale ublic e$ents in ar-& Reasoned that law
was neutral, and onl" er!itted denial (or seci(ied reasons&/
o 5tandin% (or a (acial challen%e does not deend on actual denial,
whereas an as alied challen%e would& "oulos v. &ew Hampshire
.1>57/ [175J] .#(ter citation (or holdin% !eetin% in ar- without
er!it, court did not consider whether denial o( er!it was
arbitrar", as statute was (aciall" in$alid&/
;usti(ications For Bot +er!ittin% +rior Restraints include the ease o( barrin%
the seech b" stro-e o( the en, censor bias in (a$or o( %o$ern!ental
interests, in(or!alit" o( censor rocedure, e((ect o( barrin% ideas (ro! the
!ar-etlace, little -nowled%e o( the har!s o( such bans& [175J]& B4' 5@@
4ingsley Books /nc. v. Brown .1>59/ .uheld state rior restraint sche!e (or
obscene !aterials when clear standards and ro!t <udicial hearin%s were
in$ol$ed& Reasoned that under these circu!stances, rior restraints are not
!ore har!(ul/&
2n<unctions to re$ent ublication are not er!itted & &ear v. innesota
.1>71/ .Court struc- down state law that er!itted in<uncti$e relie( to bar
ublication o( !alicious, scandalous, or de(a!ator" written !aterial& Court
reasoned that it in(rin%ed on the (reedo! o( the ress, and a!ounted to a
rior restraint& Court (ound that rior restraints ha$e onl" been accetable
in e?tre!e cases o( national securit", obscenit", and incite!ent& [175>]/&
o But, when in<unctions are issued, !ust be (ollowed rior to $iolatin%
ursuant to the collateral bar rule& Walker v. Birmingham .1>J9/
.3in% $iolated <udicial in<unction barrin% arade& Court (ound that
in<unction has to be (ollowed until ruled unconstitutional&/D B4'
5@@ Carroll v. "resident # Commrs of "rincess Anne .1>J6/
.Court i!osed rocedural sa(e%uards and li!ited the circu!stances
under which an e? arte rocedure could %rant an in<unction/
@?tre!e )atters o( Bational 5ecurit" !a" <usti(" rior restraint & &ew 3ork
+imes Co. v. 2nited States ="entagon "apers> .1>91/ .Court holds that bar
on ublication o( +enta%on +aers, e$en i( ille%all" obtained, is
unconstitutional as the" are historical in nature, and there is no
con%ressional authori0ation& Finds that the ti!es !entioned in Bear that are
le%iti!ate %rounds (or censorshi are troop movements and nuclear
secrets&/D 2nited States v. "rogressive .1&C&1is 1>9>/ .%rants rior
restraint (or ublication o( lar%el" ublic record %uide to !a-e *-Bo!b& 2t
is a-in to a nuclear secret, and there is con%ressional authori0ation&/D 5@@
Snepp v. 2nited States .1>60/ [17J>] .Court noted that contractual li!its on
%o$ern!ental e!lo"ee,s disclosure o( con(idential in(or!ation !a" <usti("
rior restraint o( such in(or!ation/
o Fair 'rial concerns are not o(ten su((icient to <usti(" rior restraint&
&ebraska "ress Assn v. Stuart .1>9J/ .court used *and balancin%
o( e((ect o( retrial co$era%e, whether other !easures would
!iti%ate e((ects o( unrestrained ublicit", and e((ecti$eness o(
restrainin% order to stri-e down %a% order/&
First #!end!ent Ri%ht o( #ccess
o Ci((erin% $iews on ri%hts o( access& [class 44]
Classic $iew o( (irst a!end!ent did not suort constitutional ri%hts o( access&
'he (irst a!end!ent was li!ited to %o$ern!ental action, there was no inter(erence
with ri$ate editorial decisions, and inter$ention was onl" aroriate when there
was a !onool" o( scarce resources&
Barron,s $iew suorts a constitutional ri%ht o( access in certain circu!stances&
1hen there is a !onool", or when it ertains to the !edia .which alies
!a<oritarian rinciles b" aealin% to the lowest co!!on deno!inator/, then
access obli%ations !a" be aroriate&
o 'here is little ri%ht o( access to ri$ate roert" & [12>7] arsh v. Alabama .1>4J/
.reco%ni0ed ri%ht o( access to distribute literature in co!an" town = idea o( areas that
ser$ed a ublic (unction/D Amalgamated *ood 'mployees v. ,ogan 1alley "la-a .1>J6/
.reco%ni0ed ri%ht to eace(ull" rotest a suer!ar-et in ri$ate shoin% center that was
(unctional e:ui$alent o( ublic (oru!/ B4' ,loyd Corp. v. +anner .1>92/ .distin%uished
Lo%an Oalle" and struc- down ri$ate roert" rotest = rotest was unrelated to business
oeration, and there were alternati$e !eans o( rotest/D Hudgens v. &,)B .1>9J/
.!entioned that Lo%an Oalle" was no lon%er %ood law, and that there was no ri%ht o(
access (or ic-eters to rotest business on ri$ate roert"/&
o 'here is little constitutional basis (or co!elled access o( others, seech & [1796]
Ri%ht o( rel" (or broadcast, but not rint !edia & )ed ,ion Broadcasting Co. v.
*CC .1>J>/ .court uheld FCC re:uire!ent o( (airness doctrine, which re:uires
resonse ti!e (or those attac-ed, rel"in% hea$il" on the ublic nature o( the
broadcast sectru!& Coctrine was later eli!inated b" FCC/D iami Herald "ub.
Co. v. +ornillo .1>94/ .stri-in% down state ri%ht o( rel" (or rint !edia, (indin%
that it co!els ublishers to carr" a articular !essa%e/&
8enerall" no co!elled access to ri$ate roert" & "runeyard Shopping Center v.
)obins .1>60/ .Court uheld state constitutional ro$ision which re:uired access to
ri$ate shoin% centers, (indin% it did not in(rin%e on the (irst a!end!ent ri%hts o(
the roert" owner/D "acific (as # 'lec. Co. v. "ublic 2til. Commn .1>6J/ .court
(ound that utilit" did not ha$e to carr" !essa%e o( those critical o( its ractices = no
obli%ation to carr" !essa%e it disa%rees with& Cissent ar%ued there should be an
obli%ation as it is a re%ulated utilit" and cororation/D +urner Broadcasting System
v. *CC 7+urner /8 .1>>4/ [1761] .(ound that !ust carr" ro$isions (or cable
oerators to include local channels was content neutral, and li-el" satis(ied the
O,Brien test,s inter!ediate scrutin"/ a(ter re!and +urner // .1>>9/ .(ound that the
re%ulations were narrowl" tailored/&
+arades do not ha$e to carr" !essa%es their or%ani0ers disa%ree with & Hurley v.
/rish5American (ay6 ,esbian6 and Bise!ual (roup of Boston .1>>5/ .reasoned that
a ri$atel" or%ani0ed arade is e?ressi$e conduct, and that it does not ha$e to
co!ort with a state non-discri!ination law to carr" a !essa%e it disa%rees with/&
Broadcast, as a scarce resource, !a" ha$e obli%ations to carr" !essa%es, but the"
retain !uch editorial control& [14>1] )ed ,ion Broadcast Co. v. *CC .1>J>/
.uheld (airness doctrine in li%ht o( scarce resources/D Columbia Broadcasting6 /nc
v. $emocratic &ational Committee .1>97/ .court held that broadcasters retained
enou%h editorial control to re<ect olitical ad$ertise!ents while accetin%
co!!ercial ad$ertise!ents = re<ected e?andin% Red Lion/D CBS /nc. v. *CC
.1>61/ .court uheld (ederal law re:uirin% access to urchase ads on broadcast
!edia (or (ederal o((ice see-ers/D *CC v. ,eague of Women 1oters .1>64/ .court
struc- down ban on nonco!!ercial educational broadcastin% stations that recei$e
ublic (unds (ro! editoriali0in% = reasoned that there had to be a narrowl" tailored
restriction, (urtherin% a substantial %o$ern!ental interests, such as (air and
balanced co$era%e/D Arkansas 'ducational +elevision Commn 7A'+C8 v. *orbes
.1>>6/ .re<ected challen%e (ro! candidate e?cluded (ro! debate, (indin% that e$en
broadcasters retain editorial control/&
2nternet and Cable are not a-in to broadcast, and thus little <usti(ication (or access&
+urner / .1>>4/ .in reasonin%, court re<ected analo%" to rint !edia or broadcast,
(indin% that cable oerators retain editorial control&/D $enver Area 'ducational
+elecommunications Consortium v. *CC .1>>J/ .declined to decide whether cable
is li-e rint or broadcast, as it arose in a di((erent conte?t/D )eno v. AC,2 .1>>9/
.court re<ected analo%" between internet and broadcast !edia/
Freedo! o( #ssociation [176J]
o First #!end!ent rotects a%ainst disclosin% !e!bershi lists & &AAC" v. Alabama .1>56/
.Court struc- down order re:uirin% B##C+ to disclose !e!bershi list& Found that (ree
association was a constitutional ri%ht, and that state re%ulator" interest ursuant to
cororate charterin% was insu((icient to o$erco!e&/D Shelton v. +ucker .1>J0/ .5tri-es
down state law re:uirin% teachers to disclose all or%ani0ational !e!bershis, (indin% that
the state interest in teacher co!etence, while le%iti!ate, did not outwei%h/D (ibson v.
*lorida ,egislative /nvestigation Comm. .1>J7/ .!e!bershi did not ha$e to be disclosed
in le%islati$e in$esti%ation o( Co!!unis!, as there was no ne?us between the in(or!ation
sou%ht and a co!ellin% state interest& 5uch a ne?us is re:uired/&
o Cisclosure o( ca!ai%n contributions is re:uired & Buckley v. 1aleo .1>9J/D B4' Brown v.
Socials Workers ?: Campaign Committee .1>62/ .(ear o( inti!idation o( donors
outwei%hed interest in disclosure/
o Bans on solicitations to $alidate ri%hts $iolate (ree association & &AAC" v. Button .1>J7/
.stri-es down ban on solicitin% arties (or liti%ation, (indin% that it was rotected seech =
here to $indicate constitutional ri%hts/D Brotherhood of )ailroad +rainmen v. 1irginia
.1>J4/ .e?tends to ersonal in<ur" suits/D 2nited ine Workers v. /, State Bar Assn
.1>J9/ .e?tends to wor-er,s co!ensation clai!s/D 2nited +ransportation 2nion v. State
Bar of ichigan .1>91/ .rotectin% union !e!bers (ro! e?cessi$e attorne" (ees/&
o Freedo! o( #ssociation can be subordinated to co!ellin% state interests & [read >1]
8ender e:ualit" tru!s ri$ate ri%ht to associate & )oberts v. 2nited States .aycees
.1>64/ [1415] .held that ri$ate %rou could not e?clude wo!en in $iolation o( state
non-discri!ination law al"in% to laces o( ublic acco!!odation& Court alied
a co!ellin% interest test to the state, and (ound it !et&/D Board of $irectors of
)otary /nternational v. )otary Club .1>69/ .uheld alication o( Cali(ornia law to
!andate wo!en be included, (indin% that it was a non-selecti$e !e!bershi/D &ew
3ork State Club Assn v. City of &ew 3ork .1>66/ .uheld a nondiscri!ination law
(ro! a (acial First #!end!ent challen%e/
5e?ual Orientation is a le%iti!ate %rounds to e?clude uon & Boy Scouts of America
v. $ale .2000/ .Court held that the Bo" 5couts were en%a%ed in e?ressi$e conduct
and that it was aroriate to e?clude %a"s on that %rounds, in $iolation o( state
non-discri!ination law& Court (ound that the state had no co!ellin% interest&
Cissent ar%ued that Cale was not a sea-er, and did not $iolate the re$iousl"
unannounced rincile o( disaro$al o( %a"s/
Religious %utonomy
Ci((erin% $iews on the !eanin% o( the clauses [1504]
o Co!inant $iew belie$es in a whole searation o( church and state, and denies an"
%o$ern!ental suort o( reli%ion& 'his has been re(erred to as $oluntaris! and searatis!
= $oluntaris! in that onl" $oluntar" contributions can (urther the actions o( a reli%ious
%rou, and searatis! in that there !ust be a whole scale searation between church and
state& 'hese $iews are best articulated b" ;ustice Blac- in 'verson v. Board of 'ducation
.1>49/&
o )inorit" Oiew belie$es that the ro$isions !erel" re:uire %o$ern!ental non-
re(erentialis!& Bo one reli%ion can be endorsed, but there is no re:uire!ent o( -eein%
the %o$ern!ent and reli%ion searate& 'his $iew has been endorsed b" so!e <ustices, but
has ne$er co!!anded a !a<orit"& Wallace v. .affree .1>65/ .Rehn:uist dissent ar%ued
there is no constitutional re:uire!ent o( a wall o( searation, and that the establish!ent
clause onl" barred creation o( a national reli%ion/D )osenberger v. )ector .1>>5/ .'ho!as
ar%ued that onl" non-re(erence was re:uired/
Free @?ercise Clause
o Laws that urosel" discri!inate a%ainst reli%ion $iolate (ree e?ression clause & +orcaso
v. Watkins .1>J1/ .struc- down re:uire!ent that state o((iceholders ro(ess belie( in 8od/D
c$aniel v. "aty .1>96/ .Court in$alidated state law barrin% cler%" (ro! bein% le%islators
or dele%ates to constitutional con$entions/D Church of the ,ukumi Babalu Aye v. City of
Hialeah .1>>7/ .Court in$alidated ani!al sacri(ice ban, (indin% that it was not neutral (or
allowin% e?cetions, and that it was !oti$ated b" ani!us to a articular reli%ious %rou&
'o be $alid, a law burdenin% reli%ious ractice !ust be neutral, or o( %eneral alication,
or else it will be sub<ected to the !ost e?actin% scrutin"/D ,arson v. 1alente .1>62/ .struc-
down law that re:uired reortin% o( charitable contributions, but e?e!ted nu!erous
reli%ions = was tar%eted at non-traditional reli%ions/D B4' 5@@ ,ocke v. $avey .2004/
.uholdin% state constitutional ro$ision that barred state (unds (ro! suortin% reli%ion =
here scholarshi (unds (or indi$idual wantin% to stud" theolo%"/&
o @?e!tions (ro! !ilitar" ser$ice are constitutional under the (ree e?ercise clause& 2nited
States v. Seeger .1>J5/ [1510] .Court interreted reli%ion broadl" to e?e!t indi$idual that
belie$ed in sure!e bein% in a re!ote sense/D Welsh v. 2nited States .1>90/ .luralit"
de(ined reli%ion broadl" to %rant e?e!tion to indi$idual that struc- Greli%iousH (ro!
alication/ B4' 5@@ (illette v. 2nited States .1>91/ .held that Con%ress could re(use
e?e!tions (or those that onl" ob<ected to articular wars and con(licts&/
o Beutral laws that ad$ersel" a((ect reli%ious e?ercise !a" re:uire e?cetions to be
constitutional& Sherbert v. 1erner .1>J7/ .Court alied strict scrutin" to re:uire e?cetion
to unemployment compensation sche!e (or wo!an who could not wor- 5aturda"s which
were her 5abbath& Court reasoned that the e?tension o( bene(its was re:uired b" the
rincile o( reli%ious neutralit"& Rhas onl" been alied in une!lo"!ent conte?t/D
+homas v. )eview Board .1>61/ [152J, read 50] .e?tendin% 5herbert to indi$idual that :uit
<ob at !unitions (actor" out o( oosition to war/D Wisconsin v. 3oder .1>92/ .o$erturns
con$iction (or not (ollowin% a compulsory education law in $iolation o( #!ish reli%ious
belie(s = state interest in education !ust be balanced a%ainst (ree e?ercise ri%hts/D B4'
5@@ Braunfeld v. Brown .1>J1/ .uholdin% (unday closing law (ro! (ree e?ercise
challen%e b" Orthodo? ;ew& Court reasoned that belie(s were not co!elled/D 2nited
States v. ,ee .1>62/ .re<ectin% (ree e?ercise challen%e b" #!ish ob<ectin% to social
security ta0es/D Bob .ones 2niversity v. 2nited States .1>67/ .re<ectin% (ree e?ercise
challen%e to the denial o( ta0 e0empt status on account o( racial discri!ination/D
(oldman v. Weinberger .1>6J/ .Re<ectin% a challen%e to the ban on wearin% religious
symbols in the military/D %,one v. 'state of Shaba-- .1>69/ .re<ectin% (ree e?ercise
challen%e b" )usli! prisoners unable to attend a Frida" !idda" ser$ice = reasonableness
standard did not lace burden o( (indin% alternati$es on the rison o((icials/D Bowen v. )oy
.1>6J/ .Re<ected a (ree e?ercise challen%e b" Bati$e #!erican who ob<ected to child bein%
assi%ned a (() (or (ood sta! eli%ibilit"/D ,yng v. &orthwest /ndian Cemetery "rotective
Assn .1>66/ .Re<ected challen%e to usin% ublic lands (or har$estin% when contended that
it was a sacred area/
But %o$ern!ent can roerl" li!it reli%ious ractices without a co!ellin%
interest& )eynolds v. 2nited States .1696/ [1521] .4holdin% bi%a!" law a%ainst
(ree e?ercise challen%e, (indin% that %o$ern!ent can roerl" roscribe ractices/D
Cantwell v. Connecticut .1>40/ .court (ound that reli%ious belie(s were entitled to
absolute rotection, but that reli%ious conduct, while sub<ect to so!e re%ulation, is
not wholl" unrotected/D "rince v. assachusetts .1>44/ .uholdin% child wel(are
law barrin% !inor eriodical sellin% a%ainst challen%e (ro! ;eho$ah,s 1itness who
clai!ed it was re:uired b" reli%ion/D 'mployment $ivision6 $ept. of Human
)esources v. Smith .1>>0/ .Court uheld denial o( une!lo"!ent bene(its to
Bati$e #!ericans (ired (or use o( +e"ote& Reasoned that neutral, %enerall"
alicable laws are not barred (or in(rin%in% (ree e?ression in the absence o( other
ri%hts bein% burdened as well& Court rejected idea of re3uiring a compelling
governmental interest to <usti(" a neutral law a((ectin% a reli%ion, and li!ited
5herbert test to the une!lo"!ent conte?t/
#nti-@stablish!ent Clause
o 'he Le!on 'est was set out in ,emon v. 4urt-man .1>91/& 2t re:uired that a statute !eet
three criteria to withstand an establish!ent challen%eA
5ecular le%islati$e urose
+rincial or ri!ar" e((ect is not one that ad$ances or inhibits reli%ion
5tatute !ust not (oster e?cessi$e %o$ern!ent entan%le!ent with reli%ion&
'he Le!on test has been critici0ed, and not entirel" (ollowed&
o @nshrinin% O((icial Belie(s
+ublic 5chools
Released 'i!e ro%ra!s are constitutional, but reli%ious teachin% b" ublic
schools is not& cCollum v. Board of 'ducation .1>46/ .in$alidated
ractice o( teachin% reli%ion in ublic schools/D 9orach v. Clauson .1>52/
[1549, read 52] .4held a released ti!e ro%ra! where ublic school students
could attend reli%ious classes o(( o( school %rounds durin% school da"&
Court (ound that there was no coercion, and the statute did not (a$or an"
one reli%ion&/
O((icial school ra"er is not er!itted, as it o(ten in$ol$es coercion & 'ngel
v. 1itale .1>J2/ .co!ulsor" non-deno!inational school co!osed ra"er
in ublic schools was struc- down/D Abington School $ist. v. Schempp
.1>J7/ .struc- down Bible readin% and recitation o( the Lord,s ra"er at the
oenin% o( a school da"& Oinion reasoned that i( the urose was to
ad$ance reli%ion, then unconstitutional/D Wallace v. .affree .1>65/ .struc-
down state law re:uirin% !inute o( silence in ublic schools = (ound the
!oti$ation was ad$ancin% reli%ion/D ,ee v. Weisman .1>>2/ [1557] .5truc-
down nonsectarian ra"er at non-co!ulsor" %raduation cere!on", (indin%
that in ractice, attendance was re:uired, and that those that disa%reed had
little otion but to hear the ra"er = thus there was coercion/D Santa *e
/ndependent School $ist v. $oe .2000/ .struc- down ro%ra! er!ittin%
student led ra"er at ublic school (ootball %a!es with suort o( school&
Court (ound coercion (or those there (or credit = band and cheerleaders/&
Reli%ious 8rous !ust recei$e e:ual access& (ood &ews Club v. ilford
Central School .2001/ [15J1] .reli%ious %rous can use schools (or e?tra
curricular acti$ities when other %rous had access = neutralit" re:uired/&
Reli%ious !oti$ations cannot be (a$ored in ublic school curriculu! & Stone
v. (raham .1>60/ .in$alidated state law re:uirin% ostin% o( 10
Co!!and!ents in ublic schools (indin% that there was no secular
urose/D 'lk (rove 2nified School $istrict v. &ewdow .2004/ [15J2]
.'hou%h not reachin% the !erits, so!e <ustices indicated that the" would
ha$e (ound no establish!ent clause $iolation (or recitation o( the +led%e in
ublic schools/D 'pperson v. Arkansas .1>J6/ .struc- down ban on teachin%
e$olution in ublic schools, (indin% that it (a$ors a articular reli%ious
ersecti$e/D 'dwards v. Aguillard .1>69/ .(aciall" in$alidates state law
re:uirin% e:ual treat!ent o( e$olution and creationis!, (indin% that there is
no clear secular urose under the Le!on test& Coes not (oreclose the
ossibilit" o( teachin% creationis!&/&
Outside o( the school conte?t
Laws ori%inall" enacted with reli%ious !oti$ation can beco!e secular o$er
ti!e& c(owan v. aryland .1>J1/ [15J6] .court uheld 5unda" closin%
laws a%ainst establish!ent attac-, (indin% that the" ha$e beco!e secular
wa" o( ro!otin% da" o( rest/&
Le%islati$e +ra"er is constitutional on account o( its uni:ue histor" & arsh
v. Chambers .1>67/ .court uheld state ractice o( oenin% each le%islati$e
da" with a ra"er (ro! a state aid chalain& Relied lar%el" on the
historical nature o( the ractice&/
+ublic disla"s o( reli%ion are constitutional when there is no endorse!ent
b" the %o$ern!ent, and e:uall" a$ailable to others& ,ynch v. $onnelly
.1>64/ [1590, read 57] .uheld disla" o( crSche with other disla"s in a
holida" disla"& Found lon% histor" o( ublic suort o( secular holida"s,
and that the inclusion was !erel" showin% historical roots/D Allegheny
County v. American Civil ,iberties 2nion .1>6>/ .court stuc- down
(reestandin% disla" o( nati$it" scene on courthouse %rounds, but uheld a
!ulti-deno!inational disla"& Court adoted O,Connor,s no endorsement
aroach which (inds that %o$ern!ental endorse!ent, (a$oritis!, or
ro!otion o( a reli%ion is a $iolation o( the establish!ent clause&/D Capitol
S;uare )eview Board v. "inette .1>>5/ .uholds erection o( Latin Cross b"
ri$ate %rou on ublic roert"& +luralit" ad$ocated (or re<ection o( no
endorse!ent test, and (or a er se rule that ri$ate seech in a traditional or
desi%nated ublic (oru! oen to all is er se constitutional/
10 Co!!and!ents Cisla"s are constitutional when art o( secular disla" &
cCreary County v. AC,2 of 4entucky .2005/ .in$alidated courthouse
disla", (indin% that %o$ern!ental neutralit" was re:uired, and that the
ri!ar" !oti$ation was ro!otin% reli%ion/D 1an %rden v. "erry .2005/
.uholdin% disla" on caitol %rounds in sculture ar- as art o( lar%er
disla"& Bre"er (i(th $ote e!hasi0ed the lar%er conte?t, the secular nature
o( the %rou that laced the disla", and lac- o( challen%es/&
o #id to Reli%ious 2nstitutions
Financial #id (ro! %o$ern!ent can onl" indirectl" bene(it reli%ious schools &
'verson v. Board of 'ducation .1>49/ [1561] .Court uheld ta?es %oin% to bus
ser$ice (or children attendin% reli%ious schools& Boted thou%h that no ta? can
directl" suort reli%ious acti$ities or institutions/D Board of 'ducation v. Allen
.1>J6/ .state can lend boo-s on secular sub<ects to arochial schools/D itchell v.
Helms .2000/ .te?tboo-s and other instructional sulies can be lent to reli%ious
schools/D 9elman v. Simmons5Harris .2002/ [15>>] .uheld state $oucher s"ste!,
(indin% that the %oal was educational choice& 1here aid ro%ra! is reli%iousl"
neutral, and ro$ides aid to reli%ious schools onl" throu%h citi0en choice, little
basis (or establish!ent clause attac-/
Li-el" has to ass the Le!on test to stand& uller v. Allen .1>67/ [1564]
.uholdin% e?e!tion in state inco!e ta? (or incidental education e?enses
incurred in reli%ious education& Court alied and (ound satis(ied the
Le!on test&/
Financial #id to reli%ious hi%her education (acilities %enerall" (ace less barriers &
+ilton v. )ichardson .1>91/ .luralit" distin%uished between hi%her ed and
secondar" schools, (indin% that colle%e students are less i!ressionable& 4held
(ederal construction %rants to secular (acilities at reli%ious colle%es/D )oemer v.
aryland "ublic Works Bd. .1>9J/ .aro$ed %o$ern!ental %rants to ri$ate
colle%es, includin% reli%ions ones, so lon% as (unds not used (or secretarian
uroses/&
Reli%ious or%ani0ations can %enerall" be included in ublic subsid" sche!es when
neutrall" a$ailable to all& Witters v. Washington $ept. of Services for Blind .1>6J/
[15>1] .uheld the constitutionalit" o( allowin% ublic assistance (or rehabilitation
to be used b" a blind erson at a Christian colle%e/D Bowen v. 4endrick .1>66/
.re<ected a (acial attac- to (ederal %rants (or counselin% ser$ices bein% ro$ided to
reli%ious %rous& #lied the Le!on test&/D 9orbrest v. Catalina *oothills School
$ist. .1>>7/ .court (ound that %o$ern!ent aid (or a si%n lan%ua%e interreter in
reli%ious schools was O3&/D )osenberger v. )ector and 1isitors of the 2niversity of
1irginia .1>>5/ .Court held that reli%ious ublications could not be barred (ro!
bein% included in the uni$ersit" subsidi0ed ublication ser$ice (or student %rous&/D
Agostini v. *elton .1>>9/ .court held that ublic school teachers can instruct
re!edial education classes at reli%ious schools& 2( a bene(it is neutrall" a$ailable to
all in a nondiscri!inator" !anner, it is accetable&/D itchell v. Helms .2000/
.Court uheld state ro$ision o( co!uters to reli%ious and secular schools ali-e&/
o Le%islati$e #cco!!odation o( Reli%ion [1J0J]
Cele%ation o( ower to reli%ious or%ani0ations is unconstitutional& ,arkin v.
(rendels $en6 /nc. .1>62/ .struc- down law that %a$e churches and schools ower
to $eto li:uor licenses to establish!ents within (i$e hundred (eet/D Board of 'duc.
%f 4iryas .oel v. (rumet .1>>4/ [1J10] .struc- down acco!!odation o( a searate
%o$ern!ental district (or a reli%ious co!!unit"/&
Le%islati$e acco!!odations are accetable to a de%ree& 'state of +hornton v.
Caldor6 /nc. .1>65/ .5truc- down law er!ittin% eole to ha$e their own 5abbath
da" o(( o( wor-& Court $iewed as ad$ancin% a reli%ious ractice/D Corporation of
"residing Bishop v. Amos .1>69/ .uholds (ederal ro$ision that er!itted
reli%ious e!lo"ers to (ire those the" disa%ree with/D +e!as onthly /nc. v. Bullock
.1>6>/ .struc- down e?e!tion (ro! sales ta? (or reli%ious ublications/D Board of
'ducation v. ergens .1>>0/ .re<ected establish!ent clause challen%e to law that
re:uired e:ual access (or reli%ious %rous to schools that are oen to other student
%rous/&
Due 'rocess and Incorporation
+re Ci$il 1ar
o +rior to the ci$il war, the Bill o( Ri%hts was $iewed onl" as a li!it on the (ederal
%o$ern!ent, and the 5ure!e Court re(used to e?tend it to the states& Barron v. ayor
and City Council of Baltimore .1677/ [44J] .Court re<ected ar%u!ent (or e?tendin% the
Fi(th #!end!ent,s rotection a%ainst ta-in%s to the states& Court noted that the Bill o(
Ri%hts onl" rotected eole (ro! $iolation b" the (ederal %o$ern!ent/&
+ost Ci$il 1ar
o #(ter the assa%e o( the Reconstruction #!end!ents, the Court was initiall" unwillin% to
read the rotections an" broader than the conte?t in which the" were assed& Slaughter5
House Cases .1697/ .Court re<ected 17
th
a!end!ent in$oluntar" ser$itude and 14
th

a!end!ent ri$ile%es and i!!unities clai! (or butchers challen%in% !onool" %rant&
Court read the a!end!ents in the conte?t o( how the" were assed = that o( rotectin%
(or!er sla$es, and (ound that thou%h reachin% other circu!stances was not i!ossible,
there was a hea$" resu!tion a%ainst it that was not !et in this case& Court distin%uished
between citi0ens o( a state, and citi0ens o( the 4nited 5tates& Cissent ar%ued that the 14
th

a!end!ent e?tends ri%hts to all a%ainst deri$ation (ro! states, and that it should be read
as such/
o 'he Constitution rotects the ri%ht to interstate tra$el & Crandall v. &evada .16J9/
.in$alidatin% ta? on eole lea$in% state b" co!!on carrier, (indin% ri%ht to tra$el& Bote,
was be(ore 14
th
#!end!ent was enacted/D 'dwards v. California .1>41/ .su%%ested that
the ri%ht to tra$el !a" be rooted in the co!!erce clause& 5truc- down anti indi%ent law/
Curational residenc" re:uire!ents (or state bene(itsKri%hts are thus lar%el"
unconstitutional& Shapiro v. +hompson .1>J>/ .in$alidated denial o( wel(are
bene(its to new state residents (or "ear = basin% it on e:ual rotection clause o( 14
th

#!end!ent, (indin% that it unnecessaril" burdened tra$el&/D $unn v. Blumstein
.1>92/ .in$alidated one "ear residenc" re:uire!ent (or $otin% = struc- down on
e:ual rotection %rounds/D emorial Hospital v. aricopa County .1>94/ .struc-
down residenc" re:uire!ent (or indi%ent to recei$e (ree non-e!er%enc"
hositali0ation or !edical care&/D Saen- v. )oe .1>>>/ .Court in$alidated state
staute li!itin% wel(are bene(its (or eriod a(ter relocation to the le$el the" were in
re$ious state o( residenc"& 'he court noted that interstate tra$el is a (unda!ental
ri%ht, and alied strict scrutin" to in$alidate the law& Cissent ar%ued that there
was no inherent ri%ht to be a citi0en o( an" state/ B4' 5@@ Sosna v. /owa 7@A?B8
7upholding residency re;uirement to divorce a nonresident.8
o 'he Cue +rocess Clause was utili0ed to selecti$el" incororate constitutional ri%hts a%ainst
the states& "alko v. Connecticut .1>79/ [4J>] .Cardo0o ar%ued that not all o( the Bill o(
Ri%hts were e?tended to the states, but ar%ued (or selective e0tension& *ere he (ound that
the double <eoard" clause was not (unda!ental enou%h to be e?tended&/D Adamson v.
California .1>49/ .court denied e?tendin% sel( incri!ination ro$ision o( (i(th a!end!ent
to states& Blac- dissent ar%ued that full incorporation was the roer intent o( the
a!end!ents, and ut (orth a co!ellin% ar%u!ent&/&
2n site o( the tension at the ti!e, we ha$e seen nearl" (ull incororation in (act&
$uncan v. ,ouisiana .1>J6/ [495] .Court (ound that the ri%ht to a <ur" trial in
cri!inal roceedin%s was (unda!ental to the rinciles o( ordered libert", and that
the 14
th
#!end!ent, ursuant to the <usti(ications (or selecti$e incororation,
e?tended it to the states& Boted that !inor cri!es could be rosecuted without
<ur"/D B4' 5@@ Williams v. *lorida .1>90/ .(ound that at twel$e erson <ur" is not
re:uired (or states/D Apodaca v. %regon .1>92/ .(ound that a unani!ous <ur" is not
needed/&
(ubstantive Due 'rocess and /merging Rights to 'ersonal %utonomy or 'ersonhood
@cono!ic 5ubstanti$e Cue +rocess
o Rise o( concet o( econo!ic substanti$e due rocess
'he roots o( the idea behind due rocess in$alidation o( le%islati$e action were
based in the notion that the Constitutions was an e!bodi!ent o( a social contract,
which was set to reser$e ree?istin% (unda!ental ri%hts& 'hus, actions that were
contrar" to (unda!ental ri%ht were not constitutionall" sustainable& Calder v. Bull
.19>6/ [469] .Chase ar%ued (or such a $ision o( the natural law, and (ound that
le%islati$e acts that were contrar" to natural law, or that restrained ersonal libert"
or ri$ate roert" were in$alid&/
5uch ri%hts later beca!e en(orceable onl" when tied to seci(ic constitutional
ro$isions = Cue +rocess clause o( the 14
th
#!end!ent beca!e the ri!ar" ho!e&
8raduall", the Court be%an to ac-nowled%e econo!ic libert" interests& unn v.
/llinois .1699/ .'hou%h de(erentiall" uholdin% %rain rate re%ulations (or ublic
%ood, noted that ri$ate contracts that do not a((ect the ublic, were unreachable/D
ugler v. 4ansas .1669/ .thou%h uholdin% state li:uor re%ulation, court indicated
that substanti$e due rocess was a roer tool (or <ud%in% the ade:uac" o( use o(
the state olice ower/D Allgeyer v. ,ouisiana .16>9/ .(irst in$alidation o( state law
under substanti$e due rocess anal"sis = here a state restriction on obtainin%
roert" insurance (ro! non-co!l"in% co!anies& 'hou%h the oinion (ocused
lar%el" on the re%ulation o( a (orei%n cororation, the court broadl" de(ined the
ri%ht o( libert" to contract&/
o 'he hei%ht o( the concet o( econo!ic substanti$e due rocess
#t the hei%ht o( the doctrine, the court was willin% to stri-e down state le%islation
that i!eded on libert" to contract absent co!ellin% state interest& ,ochner v.
&ew 3ork .1>05/ .Court struc- down !a?i!u! hour law (or ba-ers, (indin% that
the rationale (or $iewin% the re%ulation as a le%iti!ate use o( the olice ower was
wea-, but that indi$iduals had the libert" to contract as the" so desiredD a
co!ellin% state interest was needed to li!it a (unda!ental ri%ht& *ol!es dissent
ar%ued that 5enser,s econo!ic theor" should not be the basis (or <udicial
decisions& *arlan dissent ar%ues that the !eans (or le%islation !ust be reasonable,
and the end le%iti!ate = this le%islation was such/ERichards ar%ues olitical theor"
should be !easured b" its (it with the law it atte!ts to e?lainFD iller v. %regon
.1>06/ .+re 1>
th
#!end!ent, uheld !ini!u! wa%e (or wo!en, (indin% that there
was a co!ellin% state interest to <usti(" the inter(erence with libert" o( contract/
Coppage v. 4ansas .1>15/ .in$alidated state law that re$ented e!lo"ers (ro!
conditionin% e!lo"!ent uon not <oinin% unions&/D Adkins v. Childrens Hospital
.1>27/ .+ost 1>
th
#!end!ent - struc- down a !ini!u! wa%e law (or wo!en as
bein% too arbitrar"/D Weaver v. "almer Bros. Co .1>2J/ .5truc- down o$er
inclusi$e health re%ulation (or beddin% (illers, (indin% that it was arbitraril" related
to the health interest/&
o Cecline o( concet o( econo!ic substanti$e due rocess = the !odern $iew
'he court now uses rational basis re$iew (or econo!ic re%ulation, and no lon%er
$iews libert" o( contract as a (unda!ental ri%ht& &ebbia v. &ew 3ork .1>74/ [507]
.Court uholds re%ulation o( !il- rices, (indin% that it is a !atter o( ublic
interest, and that states are (ree to adot econo!ic olic"& 'he court (inds that due
rocess in this real! re:uires onl" a rational basis in order to stand&/D West Coast
Hotel Co. v. "arrish .1>79/ .Re$ersed Adkins v. Childrens Hospital and uheld a
!ini!u! wa%e (or wo!en, (indin% that due rocess anal"sis could not in$alidate
such re%ulations, and that there was no (unda!ental libert" o( contract&/D 2nited
States v. Carolene "roducts Co. .1>76/ .4held a (ederal ban on (illed !il-
roducts a%ainst a due rocess challen%e, (indin% that onl" a rational basis was
re:uired (or econo!ic re%ulation& Footnote (our hinted thou%h that discrete and
insular !inorities could be rotected when lar%el" disen(ranchised and unable to
access the olitical s"ste! E@l"F/D Williamson v. ,ee %ptical Co. .1>55/ [50>] .2n a
$er" de(erential oinion, the court uheld a state law re:uirin% consultation with
e"e doctor and bar on ad$ertisin% $isual aids& Found the le%islature !a" ha$e had a
rational basis/D *erguson v. Skrupa .1>J7/ .sustain 3ansas law barrin% non-law"ers
(ro! bein% in business o( debt ad<ust!ent& Le%islature !ust wei%h wisdo! o( such
le%islation&/
B4' 5ubstanti$e Cue +rocess has been cited as a basis to in$alidate
e?cessi$e ci$il awards, and retroacti$e (inancial re:uire!ents& BW of
&orth America /nc. v. (ore .1>>J/ .re$ersed T2 !illion unitati$e da!a%e
award (or T4000 co!ensator" da!a%es (or (alsi(ied aint touch u&
Concurrences indicated that substanti$e due rocess rohibited/D 'astern
'nterprises v. Apfel .1>>6/ .Court in$alidated (ederal le%islation that
e?tensi$el" and retroacti$it" i!osed (inancial obli%ations on businesses =
3enned",s (i(th $ote loo-ed to substanti$e due rocess/&
5ubstanti$e Cue +rocess and Bon-econo!ic Liberties
o Rise o( 5ubstanti$e Cue +rocess (or non-econo!ic liberties
5tarted with a broad readin% o( libert"& eyer v. &ebraska .1>27/ [545]
.)cRe"nolds (or the court struc- down a ban on teachin% (orei%n lan%ua%es to
children, (indin% that it $iolated substanti$e due rocess, and was contrar" to
rinciles o( libert"/D "ierce v. Society of Sisters .1>25/ .5truc- down a
re:uire!ent to attend ublic schools, (indin% it inter(ered with the libert" o( arents
and %uardians, and that there were no su((icient state <usti(ications/D Skinner v.
%klahoma .1>42/ .struc- down state co!ulsor" sterili0ation law (or reeat (elons
co!!ittin% cri!es o( !oral turitude = (ound ri%ht to rocreate to be (unda!ental/&
o 5ubstanti$e Cue +rocess was e?tended to (ind a ri%ht o( privacy
;ohn 5tuart )ill ro$ides the basis (or rotectin% a ri%ht o( ri$ac"& 2n GOn
Libert"H he ar%ued that there were two basic ri%hts, (ree seech, and what we call
constitutional ri$ac"& *e also resented the notion o( a har! rincile, which
reasoned that law !a" be used b" !a<orities to har! !inorities, and that
%o$ern!ent should be en%a%ed to counteract this otential (or abuse& [class 52]
+ri$ac" rotects the ri%ht to access contracetion & (riswold v. Connecticut .1>J5/
[54J, read 5>, class 57] .2n$alidated state ban on contracetion in the !arital conte?t,
(indin% that there was a constitutionall" deri$ati$e ri%ht o( ri$ac" that was
(unda!entall" rotected& *arlan concurrence ar%ued (or (indin% the ri%ht in
ordered concets o( libert" that the Constitution inherentl" rotects/D 'isenstadt v.
Baird .1>92/ .o$erturned a ban on distributin% contraceti$es/D Carey v.
"opulation Services /nternational .1>99/ .stri-es down state ban on sellin%
contraceti$es to !inors under 1J/
+ri$ac" rotects the ri%ht to obtain abortions & )oe v. Wade .1>97/ [556, class 57, read
J0] .Court (ound that the ri%ht to ri$ac" rotected the abilit" to !a-e !edical
decisions, but that it !ust be balanced with state interests, which in this case, are
also co!ellin%& # co!lete ban e?cet (or the li(e o( the !other $iolates
substanti$e due rocess& Oinion created tri!ester (ra!ewor- to %uide states in
re%ulatin% access to abortions& Cissents ar%ued that there was no (unda!ental ri%ht
to abortion, and that the !atter was a olitical :uestion&/D $oe v. Bolton .1>97/
.5truc- down e?tra rocedural re:uire!ents (or abortions, (indin% that h"sician,s
best clinical <ud%!ent should su((ice/
5ousal Consent is not er!itted, but so!e arental noti(ication and
consent re:uire!ents areA "lanned "arenthood of Central issouri v.
$anforth .1>9J/ .struc- down arental and sousal consent re:uire!ents/D
Bellotti v. Baird .1>9>/ .luralit" said that arental in$ol$e!ent in child,s
abortion is onl" er!itted when allowin% (or <udicial b"ass/D "lanned
"arenthood Assn. of 4ansas City v. Ashcroft .1>67/ .endorsed Bellotti
luralit", and (ound that arental consent with b"ass could be er!itted/D
H.,. v. atheson .1>61/ .sustained arental noti(ication law in !ost cases/D
Hodgson v. innesota .1>>0/ .struc- down absolute noti(ication
re:uire!ent o( both arents/D %hio v. Akron Center for )eproductive
Health .1>>0/ .uheld one arent noti(ication with <udicial b"ass/D Casey
.sousal noti(ication undul" burdenso!e, luralit" sa"s arental consent
with b"ass is accetable/
Burdenso!e re%ulations o( !edical ractices ha$e been struc- down A Akron
v. Akron Center for )eproductive Health 7Akron /8 .1>67/ .in$alidated
re:uire!ent that ost (irst tri!ester abortions had to haen in hosital, and
re:uire!ent o( biased in(or!ation to be resented/D +hornburgh v.
American Coll of %bst. # (yn .1>6J/ .Court struc- down reortin%
re:uire!ents, and hei%htened rotections (or ost-$iabilit" abortions/D
Stenberg v. Carhart .2000/ [56>] .struc- down ban on dilation and
e?traction (or lac- o( health e?cetion (or !other/ B4' Casey luralit"
would $alidate truth(ul in(or!ationD a-urek v. Armstrong .1>>9/ .(ound
that restrictin% abortion to licensed h"sicians was not an undue burden/
'he %o$ern!ent not ha$e to a" (or abortions & aher v. )oe .1>99/ [5J>]
.Cenied alication o( strict scrutin", and uheld e?clusion o( abortion (ro!
state !edicaid s"ste! (indin% that (undin% was not re:uired (or the
(unda!ental ri%ht/D Harris v. c)ae .1>60/ .Found that substanti$e due
rocess did not re:uire the (ederal %o$ern!ent to (und e$en !edicall"
necessar" abortions/D )ust v. Sullivan .1>>1/ .Court uheld (ederal (undin%
restrictions on or%ani0ations that ro!oted, encoura%ed, or ad$ocated (or
abortion in ro$idin% !edical treat!ent&/
)oe *as Been Uuestioned& [592-4] Akron / .1>67/ .dissents ar%ued (or
!o$in% awa" (ro! tri!ester (ra!ewor-/D +hornburgh v. American Coll. %f
%bst. # (yn. .1>6J/ .dissents ar%ued that it had beco!e unwor-able/D
Webster v. )eproductive Health Services .1>6>/ .declined to o$errule, but
luralit" ad$ocated (or rewor-in% tri!ester s"ste!/&
o But its central holdin% has been rea((ir!ed& "lanned "arenthood of
Southeastern "a. v. Casey .1>>2/ .Court rea((ir!ed the co!!it!ent
o( Roe to usin% $iabilit" as a !ar-in% oint, and (ound that Roe is
still wor-able& Re<ected the tri!ester (ra!ewor-, and !o$ed to an
undue burden standard = undue burdens rior to $iabilit" will not
be tolerated& Finds sousal noti(ication is an undue burden, and in
luralit" ar%ues that the waitin% eriod, ro$ision o( (actual
in(or!ation, arental consent with b"ass, and the collection o( data
are all constitutional/
5ubstanti$e Cue +rocess and (a!il" relationshis&
o )arria%e is a (unda!ental ri%ht that is rotected b" the substanti$e due rocess clause &
,oving v. 1irginia .1>J9/ [5>1, read J1] .(indin% that ri%ht to !arr" is a (unda!ental ri%ht,
and stri-in% down ban on interracial !arria%e on e:ual rotection and due rocess
%rounds/D 9ablocki v. )edhail .1>96/ .stri-es down a ban on !arria%e (or eole that ha$e
ille%iti!ate children& )arshall oinion couched the substanti$e due rocess ri%ht in the
ri%ht to ri$ac"/D +urner v. Safley .1>69/ .@?tended the ri%ht to !arr" to risoners, and
in$alidated restrictions on the ri%ht/&
o Fa!ilial #ssociation is rotected, thou%h arental ri%hts are ri!ar" & oore v. 'ast
Cleveland .1>99/ .stri-in% down a 0onin% ordinance that de(ined (a!ilies as onl" nuclear
units, to the e?clusion o( two %randchildren and a %rand!other/ Contrast with Belle +erre
v. Boraas .1>94/ .uholdin% 0onin% ordinance that e?cluded non-relati$es/D +ro!el v.
(ranville .2000/ .court struc- down er!ission to $isit %randchildren a%ainst will o(
!other, (indin% it $iolated the !other,s substanti$e due rocess ri%hts/&
o 'radition bears uon what is $iewed as a (unda!ental ri%ht & ichael H v. (erald $
.1>6>/ .uholdin% a denial o( biolo%ical (ather,s ri%ht to see child a(ter wi(e re!arries =
5calia,s anal"sis o( substanti$e due rocess loo-ed to tradition to <usti(" the result& But,
Brennan dissent ar%ued a%ainst the use o( tradition/&
5ubstanti$e Cue +rocess and se?ual orientationA
o Ri%ht to inti!ate association is rotected& Bowers v. Hardwick .1>6J/ .(ound that there
was no (unda!ental ri%ht to sodo!", and a(ter loo-in% to histor", uheld state sodo!"
ban& Cissent ar%ued that the ri%ht was de(ined too narrowl", and that the bi%%er :uestion
was whether the ri%ht to ri$ac" would be reco%ni0ed/D ,awrence v. +e!as .2007/ [J02, read
J2, class 55] .O$erruled Bowers6 and in$alidated a state law that onl" alied to sa!e se?
interactions& Found that it $iolated the substanti$e due rocess rotections& O,Connor
concurrence would ha$e (ound a $iolation o( e:ual rotection, and not o$erruled Bowers&/
5ubstanti$e Cue +rocess and the ri%ht to die
o 5ubstanti$e Cue +rocess does not rotect the ri%ht to die, but there is so!e ri%ht to end li(e
suort& Cru-an v. $irector6 issouri $ept. of Health .1>>0/ [J14, class 55, read J2] .Finds
that there is a libert" interest that rotects the ri%ht to end li(e suort when ter!inall" ill,
but that Cue +rocess does not re:uire the ill erson de!onstrate with clear and con$incin%
e$idence that it is their desire& 'he state can roerl" ut the burden o( ersuasion, in this
circu!stance, on the art" wantin% death&/D Washington v. (lucksberg .uheld state ban on
h"sician assisted suicide& 'he court (ound that there was no histor" o( (unda!entalness,
thus substanti$e due rocess anal"sis was not alicable& )oreo$er, the court (ound
le%iti!ate state interests in re$entin% suicide, ro!otin% ethics, and rotectin% $ulnerable
%rous& 5te$ens concurrence ar%ued that it !a" be in$alid as alied, as the state interests
are not the sa!e in all cases/D 1acco v. Cuill .1>>9/ .Court held that it does not $iolate
e:ual rotection to den" assisted suicide while er!ittin% the ri%ht to re(use treat!ent/&
/3ual 'rotection
5tandards o( Re$iew
o Rational Basis 'est
2dea o( underinclusi$e and o$erinclusi$e&
2n %eneral, underinclusi$e laws are ones ai!ed at a roble!, that (ail to
address all causes o( it& O$erinclusi$e laws are ai!ed at a roble!, and in
addressin% it, also include non-causes&
'uss!an-tenBroe- anal"sis [J45] re(ers to the de(inin% characteristic o( the
le%islati$e classi(ication as the trait = & 2t re(ers to the urose o( a law as
bein% ai!ed at eli!inatin% a !ischie( = ,& 2t en$isions (i$e otential
situationsA
1& #ll 's are )s, and all )s are 's&
a& +er(ectl" Reasonable
2& Bo 's are )s .and no )s are 's/
a& +er(ectl" 4nreasonable
7& #ll ',s are ),s, but so!e )s are not 's&
a& 4nderinclusi$e
4& #ll ),s are ',s, but so!e 's are not )s&
a& O$erinclusi$e
5& 5o!e ',s are ),s, 5o!e ',s are not ),s, and 5o!e ),s are not
',s&
a& 4nderinclusi$e and o$erinclusi$e
Court is willin% to tolerate so!e o$erinclusi$eness and so!e underinclusi$eness
when utili0in% rational basis& )ailway '!press Agency v. &ew 3ork .1>4>/ [J49, read
J7, class 5J] .Court holds that it is not a re:uire!ent o( e:ual rotection that a
rational law be er(ectl" rational, rather, a de%ree o( under or o$er-inclusi$eness is
accetable& *ere it uholds a ban on ad$ertisin% on $ehicles not ri!aril" en%a%ed
in transortation&/
Rational Basis 5crutin" uholds le%islation where the le%islature had a rational
basis (or enactin% the le%islation& Williamson v. ,ee %ptical .1>55/ .Court re<ected
e:ual rotection and due rocess challen%es, (indin% that the le%islature need not
eli!inate all or no e$ils in order to ass constitutional !uster/D c(owan v.
aryland .1>J1/ .Cenied an e:ual rotection challen%e to 5unda" Closin% law
e?etions, (indin% that rational basis onl" re:uires in$alidations o( classi(ications
that are wholl" irrele$ant to achie$in% state ob<ecti$es/D c$onald v. Board of
'lection Commissioners .1>J>/ .Re<ected a challen%e b" :uali(ied $oters in <ail
desirin% access to absentee ballots& Court reasoned that a le%islature could ursue
re(or! one ste at a ti!e, and that le%islation is not constitutionall" in(ir! (or
(ailin% to address e$er" e$il/&
8raduall", court beca!e $er" de(erential in uholdin% econo!ic re%ulation&
&ew %rleans v. $ukes .1>9J/ .sustained ro$ision %rand(atherin% in lon%-
ti!e ushcart $enders to restrictions on $endors in the French Uuarter&
Court was $er" de(erential, and case si%nals a willin%ness to be :uite
de(erential on re%ulations that are solel" econo!ic/D assachusetts Bd. of
)etirement v. urgia .1>9J/ [J57] .4held a !andator" retire!ent law (or
state olice = thou%h the <ustice concerns !a" be %ra$e, when there is no
susect class or (unda!ental ri%ht, there is no constitutional re!ed"/D
1ance v. Bradley .1>9>/ .uheld (ederal law re:uirin% (orei%n ser$ice
eole to retire at J0/D 2.S. )ailroad )etirement Bd. v. *rit- .1>60/ [J55,
class 59, read J4] .Bene(its reclassi(ication (or railroad wor-ers was uheld
under rational basis in:uir"& 'he court (ound that there was a rational
relation in the recenc" o( the ties to the railroad industr"& 'he dissent
ar%ues that the court has abstained (ro! its duties, and has (ailed to re:uire
e$en a rational basis& 'he case reresents the largely deferential approach
on econo!ic !atters/D Schweiker v. Wilson .1>61/ .Court narrowl" uheld a
denial o( allowances to disabled eole con(ined in institutions unless the
institutions were recei$in% (ederal (unds& Cissent wanted a (urther in:uir"
to satis(" rational basis/D &ordlinger v. Hahn .1>>2/ .distin%uished
Allegheny and uheld an ac:uisition $alue based roert" ta? s"ste! when
the articular %oal was the ad$anta%es o( such a s"ste!/D *CC v. Beach
Communications6 /nc. .1>>7/ .Court uheld a distinction between cable
(acilities& Found that e:ual rotection clai!s !ust (ail when there is an"
Greasonabl" concei$able set o( (actsH that ro$ides a rational basis (or the
classi(ication, re%ardless o( whether it was the actual !oti$ation o( the
le%islati$e bod"&/
'he court beca!e less de(erential with non-econo!ic re%ulations& &ew
3ork City +ransit Auth. 1. Bea-er .1>9>/ .'hou%h uholdin% a ban on !eth
users in transit e!lo"!ent, <ustices indicated a less than de(erential
aroach in the rational basis in:uir"/D ,ogan v. 9immerman Brush Co.
.1>62/ .5tate re<ected a discri!ination clai! a(ter it (ailed to consider it
within the alicable ti!e& 'he court struc- the rulin% down on rocedural
due rocess %rounds, but si? <ustices indicated that it would (ail the rational
basis test,s !ini!u! re:uire!ents o( e:ual rotection/
But, the Court occasionall" (ound le%islation with no rational basis,
%enerall" where so!e sort o( ani!us is at wor-& 2.S. $ept. of Agriculture
v. oreno .1>97/ .stri-in% down a restriction on (ood sta! eli%ibilit" (or
households with unrelated indi$iduals li$in% therein = re:uire!ent was
clearl" irrational, and little in:uir" was !ade a(ter (indin% the restriction
was !oti$ated b" ani!us to hiies/D Allegheny "ittsburgh Coal v. Webster
County .1>6>/ [JJ1] .stri-es down a roert" ta? s"ste! that bases its
assess!ent on urchase rice, thus disad$anta%in% recent urchasers/D
1illage of Willowbrook v. %lech .2000 = er curia!/ .court struc- down a
$illa%e de!and (or a lar%er ease!ent to connect articular iece o( roert"
to ser$ices, (indin% that it was li-el" !oti$ated b" re$en%e a%ainst one
ho!eowner/&
o 5trict 5crutin"
Race based distinctions !erit strict scrutin"& 'his !eans that racial classi(ications
are ordinaril" suspect, and re:uire a compelling justification (ro! the state&
;usti(ications (or $iewin% race as a susect classi(ication [class J5]
o 2t is an i!!utable characteristic
o 5alience = it is an ob$ious h"sical characteristic that !a-es the
discri!ination all the !ore odious&
o 2rrational re<udice based on bac-%round
'otal abrid%e!ent o( basic ri%hts = i&e& conscious, (ree
seech, inti!ate li(e, ri%ht to wor-
Cehu!ani0in%
o 2rrele$ant to an" state urose
o +owerless
+re$iousl" not er!itted to $ote
@$en when the" %et the $ote, the" are a s!all !inorit"
Racial classi(ications that disad$anta%e !inorities (ail strict scrutin" &
Strauder v. West 1irginia .1660/ [JJ9, read J5, class 59] .5truc- down a state
bar on blac- eole ser$in% in <uries& Court noted that all racial e?clusions
would be susect, and co$ered b" the rincile o( e:ual rotection/D
4orematsu v. 2nited States .1>44/ .alies Gthe !ost ri%id scrutin"H to
intern!ent ca! :uestion, but uholds as the countr" is at war& )urh"
dissent ar%ued that !ore o( an in:uir" needed to be !ade into the reasons
(or the !ilitar",s decision/
Racial se%re%ation (ails strict scrutin" &
o 5earate but @:ual was ori%inall" <usti(ied on a distinction between
ci$il and social discri!ination& "lessy v. *erguson .16>J/ .uheld
searate but e:ual acco!!odations (or rail tra$el, distin%uishin%
between social and ci$il discri!ination& Richards calls it an
ori%inalist oinion& Cissent ar%ues that it instills a caste s"ste!/
o Le%al e((orts b" B##C+ led to searate but e:ual bein% in$alidated
in the educational conte?t& (aines v. Canada .1>76/ .2n$alidated
state,s denial o( ad!ission to blac- alicant to state law school
endin% creation o( a searate (acilit"& 2n the absence o( e:ual
(acilities, inte%ration was re:uired/D Brown v. Board of
'ducation [J97, read JJ, class J0] .1>54/ .Court (ound that thou%h the
(acilities o( searate schools !a" be no!inall" e:ual, se%re%atin% on
account o( race retards the caacit" to learn = it is inherentl"
une:ual& Contro$ersial was (ootnote L5, which loo-ed to social
science to <usti(" the e((ects that sti%!a ha$e/D Bolling v. Sharpe
.1>54/ .in$alidated racial se%re%ation in the CC ublic schools =
thus al"in% the rincile to the (ederal %o$ern!ent as well/&
Recall <usti(ications o( <udicial re$iew& 1echshler would
re:uire a neutral rincile to <usti(" <udicial re$iew& *e
(ound none here& [class J1]
o Once in$alidated in the educational conte?t, the court !erel"
e?tended the ban on se%re%ation to other state conte?ts& ayor of
Baltimore v. $awson .1>55/ .beaches/D (ayle v. Browder .1>5J/
.busses/D Holmes v. Atlanta .1>55/ .%ol( courses/D &ew %rleans City
"ark /mprovement Association v. $etiege .1>56/ .ar-s/D .ohnson v.
1irginia .1>J7/ .in$alidated con$iction (or nonco!liance with
se%re%ation in courtroo!& Court de(initi$el" stated that states
cannot se%re%ate an" ublic (acilities/D ,ee v. Washington .1>J6/
.in$alidate se%re%ation in risons/D .ohnson v. California .2005/
.strict scrutin" (or se%re%ation in risons/&
o 5e%re%ation was also in$alidated in the conte?t o( ersonal
relationshis& ,oving v. 1irginia .1>J9/ [J61] .al"in% strict
scrutin", the court (ound no o$erridin% state urose to <usti(" the
ban on interracial !arria%e, and struc- it down&/D c,aughlin v.
*lorida .1>J4/ .struc- down a ban on interracial cohabitation& 2t
was in$idious discri!ination without state <usti(ication/D "almore v.
Sidoti .1>64/ .Re$ersed a custod" decision re!ised on
disa%ree!ent with the !other,s second souse bein% blac-& Court
(ound that there !ust be a co!ellin% %o$ern!ental interest,
necessar" to the acco!lish!ent o( a le%iti!ate state urose, and
that the law could not %i$e ri$ate biases e((ect/&
o E5ee below (or Cese%re%ation <urisrudenceF
Raciall" discri!inator" uroses and e((ects (ail strict scrutin" &
o Racial bias in the ad!inistration o( the law is unconstitutional & 3ick
Wo v. Hopkins .166J/ [J65] .struc- down law re%ulatin% laundr"
er!its as applied, (indin% that it was discri!inator" in e((ect/
o Racial bias in the !oti$e (or le%islation is %rounds (or
unconstitutionalit", thou%h courts are %enerall" reluctant to ascertain
!oti$es& (omillion v. ,ightfoot .1>J0/ .re$ersed a cit" re0onin%
that e((ecti$el" re!o$ed all blac-s = !oti$ation was discri!inator"
in urose&/D (riffin v. County School Board of "rince 'dward
County .1>J4/ .(ound that the !oti$ation o( closin% inte%rated
ublic schools while ro$idin% subsidies (or whites to attend ri$ate
schools was raciall" !oti$ated, and in$alid/ B4' 5@@ "almer v.
+hompson .1>91/ .uholdin% closin% an inte%rated ublic ool&
Court re<ected call to in:uire into !oti$e, (indin% that !oti$e o( a
le%islati$e bod" was i!ossible to ascertain, and insu((icient to
in$alidate le%islation/
o Raciall" disarate i!acts, in the absence o( urose(ul
discri!ination, are insu((icient to in$alidate le%islation& Washington
v. $avis .1>9J/ [J66, read JJ] .Court uheld a CC olice ro(icienc"
e?a!, which disroortionatel" was (ailed b" racial !inorities& 'he
court (ound that the re:uire!ent was reasonabl" related to the
urose, and that there was no discri!inator" urose& Reasoned
that disroortionate i!act was not irrele$ant, but alone does not
show discri!inator" intent&/D Arlington Heights v. etropolitan
Housing Corp .1>99/ .a((ir!ed a denial o( a re0onin% re:uest to
ha$e !ore low inco!e tenants = disroortionatel" !inorit"& Court
a%ain (ound that o((icial action is not unconstitutional !erel" on
account o( a disarate racial i!act/ .4 (// )ogers v. ,odge
.1>62/ [J>4] .uholdin% (indin% at an at-lar%e electoral s"ste! (or
count" board had a disarate racial i!act, and was thus in$alid&
Court (ound ast discri!ination in access to $otin% re%istration and
education to be circu!stantial e$idence o( urose(ul
discri!ination/D Hunter v. 2nderwood .1>65/ .5tri-in% down state
constitutional ro$ision that disen(ranchised (elons o( cri!es o(
!oral turitude = (ound that it was assed in an at!oshere o(
racis!, and had disen(ranchised blac-s at a rate ten(old to whites/D
ECese%re%ation in 5chools belowF
Ciscri!inator" intent is needed to show a $iolation o( the
17
th
#!end!ent as well& emphis v. (reene .1>61/ .thou%h
not recisel" reachin% the :uestion, uheld a !unicial street
closin% between two racial nei%hborhoods/D (eneral
Building Contractors Assn v. "ennsylvania .1>62/ .held that
to sustain a cali! under the enactin% statute o( the 17
th

#!end!ent, needed to show roo( o( discri!inator" intent/
o 'hou%h not initiall", the court now see!s inclined to adhere to the
urose e((ect distinction in addressin% the e((ects o( se%re%ation in
schoolsA
Court re$iousl" too- a broad aroach in eli!inatin% the
e((ects o( racial se%re%ation = i&e& de <ure discri!ination
which was based on e?ress or i!lied historical ractice&
(reene v. County School Board .1>J6/ [J>6] .5truc- down a
(reedo! o( choice lan (or school choice ost-Brown,
(indin% that in ractice, it did not e((ect a chan%e in the racial
co!osition o( the schools/D Swann v. Charlotte5
ecklenburg Board of 'ducation .1>91/ .a((ir!ed a court
order to adot a co!rehensi$e inte%ration lan, includin%
bussin%& Court noted that the re!edial owers to address de
<ure showin%s o( ast wron%s is broad/D 4eyes v. School
$istrict .1>97/ .allowed i!utin% discri!inator" intent
across entire school district when onl" a section o( the
district intentionall" discri!inated/D Columbus Board of
'ducation v. "enick .1>9>/ .(ound that disarate i!act can
be e$idence o( urose(ul discri!ination/ $ayton Board of
'ducation v. Brinkman .1>9>/ .!easured school s"ste!,s
constitutionalit" b" the e((ecti$eness, not urose, o(
eli!inatin% $esti%es o( se%re%ation/&
Court retreated (ro! broad ower to address de <ure
se%re%ation& illiken v. Bradley .1>94/ [900] .(indin% that
there could onl" be a !ulti district re!ed" i( there was a
!ulti-district wron% = !ere e((ects do not su((ice/ B4' Hills
v. (autreau! .1>9J/ .uheld !ulti-<urisdictional re!ed"
when the wron% was co!!itted across boundaries/D
issouri v. .enkins / .1>>0/ .Rebu-ed (ederal district court
(or !andatin% a ta? increase, in $iolation o( state law, to
address e((ects o( dese%re%ation/D issouri v. .enkins //
.1>>5/ .stri-es down order (or salar" and (undin% increases
to re!ed" student achie$e!ent = not directl" related to
endin% se%re%ation/&
Re!edies (or eli!inatin% e((ects o( se%re%ation do not last
eretuall"& Board of 'd. %f %klahoma City v. $owell
.1>>1/ .court held that re!edial in<unctions (or
dese%re%ation do not last eretuall" = school was (ree to
chan%e aroach a(ter si%ni(icant de!o%rahic chan%es/D
*reeman v. "itts .1>>2/ .a((ir!ed a artial release (ro!
<udicial suer$ision when !o$e (ro! dual s"ste! was (ound,
but !aintained so!e <udicial suer$ision/D B4' 5@@ 2nited
States v. *ordice .1>>2/ .re!ainin% e((ects o( se%re%ation in
hi%her education s"ste! had to be addressed, and !ere
adotion o( neutral laws and re:uire!ent o( searate
(acilities was not enou%h to show co!liance/&
o Court %enerall" adheres to the urose = e((ect distinction in access
to the olitical rocess& Hunter v. 'rickson .1>J>/ [904] .5truc-
down a law that sub<ected rotections on account o( race to !a<orit"
$oter aro$al = undul" burdened racial !inorities in the olitical
rocess/ E5ee!s 5i!ilar to Ro!er $ @$ansFD Washington v. Seattle
School $ist. .1>62/ .Relied on Hunter and struc- down initiati$e
re:uirin% a hi%her threshold o( aro$al (or school districts to
i!le!ent bussin% s"ste!s to address de (acto se%re%ation&
2nitiati$e had an e?e!tion (or co!liance with court decisions to
address de <ure se%re%ation/ B4' 5@@ Crawford v. ,os Angeles
Board of 'ducation .1>62/ .4held a state law li!itin% the abilit" o(
state courts to order bussin%&/
'here are (ew re!ainin% er!issible uses o( racial criteria& Anderson v.
artin .1>J4/ [J64] .race cannot be !andated to aear on electoral ballots
= brin%s re<udice to the olls/D +ancil v. Wolls .1>J4/ .uholdin% reortin%
re:uire!ent in di$orce records indicatin% race = use(ul (or $ital statistics/D
,ee v. Washington .1>J6/ .in$alidatin% se%re%ation in risons, thou%h
concurrence said it !a" be considered in order to !aintain securit",
disciline, or %ood order/&
#((ir!ati$e #ction and Race +re(erences
o Cisa%ree!ent o$er which standard to al" to race re(erences& [class
J7]
Bic-el ar%ues that all race based le%islation, whether
!oti$ated b" bias or not, should be treated with strict
scrutin"& 2t should all be er se unconstitutional&
@l", Cwor-in, and others ar%ue that "ou should loo- to the
!oti$ation& 2( the !oti$ation is in$idious race hatred, it is
in$alid, but i( it is not, then it should be sub<ect to a lower
threshold o( scrutin" .@l" sa"s rational basis/& Cwor-in
ar%ues that i( we are to accet Brown, the onl" rincile can
be stri-in% down o( in$idious race hatred, which is the
roer rincile&
o Race re(erences in the educational conte?t !a" be considered, but
consideration !ust be indi$iduali0ed, and are sub<ect to strict
scrutin"& )egents of 2niv. of California v. Bakke .1>96/ [906, read J9,
class J7-4] .+luralit" (inds that the 14
th
#!end!ent rotects all races,
and treats all racial classifications as suspect, and re:uirin% strict
scrutin"& *ere, the slots reser$ed (or !inorities were an
inaroriate !eans o( addressin% the %oal, thus it was not narrowl"
tailoredD ur%ed the *ar$ard !odel which was still an indi$iduali0ed
consideration& Brennan dissent ar%ued (or inter!ediate scrutin", to
be uheld when the re(erences are addressin% a disarate i!act,
that is the roduct o( discri!ination& #r%ues that the distinction
between :uotas and lus (actors is !eanin%less/D (rutter v.
Bollinger .2007/ .4holds a((ir!ati$e action lan that considers
race as a lus (actor (or ad!ission to law school, and indicates non-
indi$iduali0ed s"ste!s are unconstitutional& Finds that di$ersit" is a
co!ellin% state interest, but that the !eans !ust be narrowl"
tailored& Relies hea$il" on a!icus brie(s (ro! !ilitar" and
business/D (rat- v. Bollinger .2007/ [929, read J>] .stri-es down
under%raduate a((ir!ati$e action lan that auto!aticall" %i$es
!inorities 20Q score bonus& )a<orit" (inds that it is not an
indi$iduali0ed consideration, and that the state lan is not narrowl"
tailored/&
o Race +re(erences in +ublic @!lo"!ent and Contractin% is sub<ect
to strict scrutin"&
)ust be narrowl" tailored to co!ellin% state interest in
ublic e!lo"!ent& Wygant v. .ackson Board of 'ducation
.1>6J/ .stri-in% down la" o(( olic" that was ordered b"
seniorit", so lon% as the o$erall ercenta%e o( !inorities was
not di!inished& Court (ound no co!ellin% state interest
that was narrowl" tailored to <usti(" the racial classi(ication&
+re$iousl" er!issible in ublic contractin% and licensin%
when narrowl" tailored to a co!ellin% state interest, or
when Con%ress !andates, but #darand calls into :uestion&
*ullilove v. 4lut-nick .1>60/ [979, read J>] .4held a (ederal
set aside re:uire!ent in local %rant ro%ra!s& Bo court
oinion, thou%h de(erence to Con%ress was i!ortant/D
)ichmond v. ..A. Croson Co. .1>6>/ .Court held there !ust
be a showing of discrimination (or set aside ro%ra! to be
<usti(ied, and dis!issed conclusor" assertions and e$idence
o( disarit"& +luralit" ar%ued that states ha$e a hi%her
burden than the (ederal %o$ern!ent, as the 14
th
#!end!ent
acts as a restriction on the states& )arshall dissent ar%ues
that it is an aroriate re!ed" to addressin% ast
discri!ination,s e((ects, and that the court is adotin% strict
scrutin" as standard o( re$iew (or race based re!edial
le%islation/D etro Broadcasting /nc. v. *CC .1>>0/
.uholds (ederal set aside ro%ra! (or broadcast licenses,
(indin% that when Con%ress acts, it is not li!ited to
re!ed"in% ast wron%s& O,Connor concurrence notes the
(ederal %o$ern!ent has %reater owers under 5ection 5 o(
the 14
th
#!end!ent&/D Adarand Constructors6 /nc. v.
"ena .1>>5/ [94>, read 90] ERichards notes the O,Connor
oinion adots Bic-el,s ersecti$eF .Re!andin% set aside
ro%ra!& Racial classi(ications b" the %o$ern!ent are held
to a searchin% anal"sis, all racial classi(ications are held to
the sa!e anal"sis, and the 5
th
and 14
th
a!end!ent standards
re:uire the sa!e anal"sis (ro! state or (ederal action& 5calia
decidin% $ote indicates that %o$ern!ent ne$er has
co!ellin% interest in !a-in% u (or ast discri!ination&/
o Race re(erences in electoral districtin% can be considered, but
cannot be the ri!ar" !oti$ation& 2nited .ewish %rgani-ations v.
Carey .1>99/ [956] .Court de(erentiall" uheld redistrictin% ai!ed at
!aintainin% blac- control o( con%ressional district/D Shaw v. )eno
7Shaw /8 .1>>7/ [95>, read 91, class J4-5] .court stri-es down racial
redistrict ai!ed at creatin% !a<orit" blac- districts& O,Connor (inds
that e:ual rotection treats all racial classi(ications as susect, and
thin-s that i!lied racis! is !oti$atin% the redistrictin%& Race
cannot be the !oti$ation o( a redistrictin% lan/D iller v. .ohnson
.1>>5/ .court clari(ies that 5haw was not deendant on the shae o(
the district, but rather, on the !oti$ation& *ere, as the !oti$ation
was race, it had to be struc- down& Court (inds that good faith of
the legislature should be presumed/D Shaw v. Hunt 7Shaw //8
.1>>J/ .Rea((ir!ed that strict scrutin" is the aroriate standard,
and disa%reed that the state considerations (or !inorit" district were
co!ellin%/D Bush v. 1era .1>>J/ .luralit" (ound that strict scrutin"
was aroriate when other le%iti!ate considerations were
subordinated to race in redistrictin%, and that !ere consideration o(
race or creation o( !inorit"-!a<orit" districts did not re:uire strict
scrutin"/D Abrams v. .ohnson .1>>9/ .uheld adotion o( one
!inorit" district, thou%h le%islature would ha$e re(erred two,
(indin% that such would subordinate the traditional districtin%
oliciesKconsiderations to race/D ,awyer v. $epartment of .ustice
.1>>9/ .re<ected e:ual rotection challen%e to state court ordered
redistrict that was challen%ed as subordinatin% other considerations
to race& Court (ound no clear error = the re:uisite standard o( re$iew
ost-!iller, as %ood (aith resu!ed/D Hunt v. Cromartie .1>>>/
.sa!e district in 5haw cases was, on re!and, (ound to be ri!aril"
!oti$ated b" race& Court o$erruled, (indin% that %ood (aith
resu!ed, and the threshold has not been !et = district could stand/&
Funda!ental Ri%hts unenu!erated in the Constitution also !erit strict scrutin"&
#ccess to Ootin%
o #ccess to $otin% is dee!ed a (unda!ental ri%ht rotected b" the
e:ual rotection clause& Harper v. 1irginia State Board of
'ducations .1>JJ/ [67>, read 9>, class 97] .Court (inds that the ri%ht to
$ote is a (unda!ental ri%ht, and that while states do not ha$e to hold
elections, i( the" do, then e:ual rotection re:uires that the ri%ht be
e?tended to all& *ere the court stri-es down a oll ta?, (indin% that
it laces a wealth restriction on the ri%ht to $ote, and that this is not
a le%iti!ate state urose&/D 4ramer v. 2nion *ree School $istrict
&o @B .1>J>/ .struc- down restrictions on ri%ht to $ote in school
district elections to arents o( children, and land ownersKrenters&
Court (ound that there !ust be a compelling interest to restrict the
ri%ht to $ote& ERichards notes @l" was 1arren,s cler-, and that this
case stands (or re<ectin% ori%inalis! when it hurts reresentationF/
Li!ited urose elections can restrict the ri%ht to $ote when
onl" a discrete class is the sole interested art"& Salyer ,and
Co. v. +ulare ,ake Basin Water Storage $istrict .1>97/ [647,
read 60] .uholds restriction (or $otin% in water district to
landowners in the district& #lies !ini!al scrutin"/D Ball
v. .ames .1>61/ .uhold one acre one $ote sche!e (or water
recla!ation district, al"in% !ini!al scrutin"/ B4' 5@@
Cipriano v. Houma .1>J>/ .in$alidatin% restriction o( ri%ht to
$ote in bond !easures to roert" owners, when bonds aid
(ro! utilit" oeration/D "hoeni! v. 4olod-ie0ski .1>90/
.e?tendin% Ciriano to bonds that were aid lar%el" (ro!
roert" ta?es/D Cuinn v. illsap .1>6>/ .distin%uishin%
5al"er and Ball to (ind that e:ual rotection was not wholl"
inalicable to %o$ern!ental units lac-in% %eneral owers -
here stri-e down landowner restriction to be !e!ber o(
board o( (reeholders& 4sed rational basis and (ound no
rational urose&
Felons can be disen(ranchised, e$en a(ter ser$in% sentence&
)ichardson v. )amire- .1>94/ .Court uheld state
disen(ranchise!ent o( (or!er (elons, (indin% that V2 o( the
14
th
#!end!ent, den"in% $ote to those that articiate in
Grebellion, or other cri!eH <usti(ied&
@:uall" alicable burdens to $ote in ri!aries are
accetable, but now (ace strict scrutin"& )osario v.
)ockefeller .1>97/ .uheld a lon% ri!ar" re%istration eriod
to be eli%ible to $ote& Cissent ar%ued (or strict scrutin",
(indin% that dela" in ri%ht can be a-in to denial/D 4usper v.
"ontikes .1>97/ [644] .used strict scrutiny to in$alidate a bar
on chan%in% art" re%istrations (or 27 !onths = in(rin%ed on
1
st
a!end!ent ri%ht to associate/D )ice v. Cayetano .2000/
.in$alidated an ancestral re:uire!ent (or $otin% (or *awaiian
a((airs ost, (indin% that ancestr" was a ro?" (or race, and
thus the 15
th
#!end!ent barred it&/
o Oote dilution and racial %err"!anderin% are not constitutional &
*istoricall", the court was reluctant to enter into districtin%
!atters, (indin% that the" were olitical !atters& Colegrove
v. (reen .1>4J/ [64J] .court re(used to hear challen%e to
districtin% law, (indin% that it was a olitical !atter be"ond
the reach o( the <udiciar"/& B4' Baker v. Carr .1>J2/ .court
re<ected clai! that e:ual rotection challen%es to
aortion!ent sche!es were non<usticiable&/
One erson, one $ote is the re:uired standard in districtin% &
)eynolds v. Sims .1>J4/ [649, read 60, class 94] .Court (inds
state,s lac- o( redistrictin% (or si?t" "ears unconstitutional,
as it $iolates e:ual rotection& Finds that one person one
vote is a basic re:uire!ent o( citi0enshi, but that other
considerations !a" be considered, and absolutel" e:ual
districts are not !andated&/D ,ucas v. *orty5*ourth (en.
Assembly .1>J4/ .that the le%islati$e districts are aro$ed in
an election does not $alidate the! = the" !ust co!l" with
rinciles o( e:ualit"&/
Local %o$ern!ent !ust co!l"& Avery v. idland
County .1>J6/ .e?tends e:ual reresentation to local
%o$ern!ent ad!inistrati$e districts/D Hadley v.
.unior College $ist. .1>90/ .e?tends rincile to
<unior colle%e districts = whene$er there is a oular
election, there !ust be e:ual reresentation/&
Cistricts re:uire recise e:ualit" in con%ressional
districts, but are !ore de(erential in state le%islati$e
districts&
o Con%ressional districtin%& 4irkpatrick v.
"reisler .1>J>/ .(ound that a 2-7Q di((erence
was too !uch = !ust !a-e %ood (aith e((ort
to achie$e recise e:ualit"/D White v. Weiser
.1>97/ .adhered to recise e:ualit" standard
to (ind that e$en s!all oulation $ariances
were unaccetable/D 4archer v. $aggett
.1>67/ .&9Q $ariance was unaccetable
without a state <usti(ication (or it/
o 5tate districtin%& Abate v. undt .1>91/ [657]
.de$iations !ust be <usti(ied b" le%iti!ate
state considerations& *ere historical need (or
cooeration between town and count"
<usti(ied an 11&>Q de$iation/D ahan v.
Howell .1>97/ .resect (or olitical
subdi$isions <usti(ied a 1J&4Q de$iation/D
(affney v. Cummings .1>97/ .6Q total
de$iation was accetable/D White v. )egester
.1>97/ .>&>Q de$iation insu((icient to !a-e
ri!a (acie case o( in$idious discri!ination/D
Brown v. +homson .1>67/ .*istorical resect
(or count" boundaries <usti(ied a J0Q
$ariance/ B4' 5@@ Board of 'stimate v.
orris .1>6>/ .Bew Nor- Cit" could not
er!it borou%h residents to ser$e on the
Board o( @sti!ate = ended u bein% a 172Q
de$iation/
5uer!a<orit" $otin% re:uire!ents do not $iolate the
rincile o( one erson one $ote& (ordon v. ,ance
.1>91/ .(indin% that there is no Constitutional
re:uire!ent that a !a<orit" re$ail on e$er" issue =
uheld suer!a<orit" re:uire!ent (or re(erendu!s/
+olitics can be a consideration in districtin%, but
discri!inator" intent <usti(ies <udicial re$iew&
(affney v. Cummings .1>97/ .court (ound that
olitics was not an unconstitutional consideration in
districtin%/D $avis v. Bandemer .1>6J/ [655, read 62]
.Challen%e to state redistrictin% that roduced
disarate results (or Ce!ocratic art" were uheld,
as (or olitical redistrictin% clai!s to be <udiciable,
there must be a prima facie showing of
discrimination& *ere, !ere disarate results in one
election were not su((icient&/ B4' 5@@ 1ieth v.
.ubelirer .2004/ .luralit" ar%ued that olitical
%err"!anderin% clai!s should cate%oricall" be non-
<udiciable/
#ccess to <udicial rocess
o @cono!ic barriers in the cri!inal conte?t&
@cono!ic barriers to aealin% cri!inal con$ictions are not
er!itted& (riffin v. /llinois .1>5J/ [6J1, read 67, class 94] .held
that state !ust ro$ide a trial transcrit to indi%ent cri!inal
de(endant aealin% con$iction& 'hou%h noted that aeals
are not constitutionall" re:uired, when er!itted, cannot
discri!inate on account o( wealth&/D $ouglas v. California
.1>J7/ .*eld that states !ust ro$ide indi%ent with counsel
(or their (irst aeal where aeals are %ranted/&
'here is no absolute ri%ht to counsel (or aeals & )oss v.
offitt .1>94/ .held that the indi%ent do not ha$e to be
ro$ided with counsel (or discretionar" aeals = indi%ent
still ha$e !eanin%(ul access/&
Other necessities o( aeals !a" be re:uired& Ake v.
%klahoma .1>65/ .state ro$ided s"chiatrist
re:uired (or rearin% insanit" de(ense/D ,ittle v.
Streater .1>61/ .state subsidi0ed blood tests re:uired
(or indi%ent de(endant in aternit" suit/&
4nconstitutional to i!rison in order to wor- o(( (ines&
Williams v. /llinois .1>90/ .re:uire!ent to re!ain in <ail
until (ines aid o(( was unconstitutional/
o @cono!ic barriers in the ci$il conte?t&
1hen (unda!ental ri%ht is at sta-e, courts are !ore willin%
to stri-e down econo!ic barriers& Boddie v. Connecticut
.1>91/ .Court struc- down re:uire!ent (or indi%ent to a"
ser$ice (ees to obtain a di$orce, reasonin% that !arria%e is a
(unda!ental ri%ht, and the state controls the !eans to endin%
one/D ,ittle v. Streater .Boddie was e?tended to re:uire
indi%ent de(endants to ha$e state subsdidi0ed blood tests in
aternit" suits& Reasoned that the roceedin%s were :uasi
cri!inal, and that constitutionall" si%ni(icant interests were
at sta-e&/D .,.B. v. S.,... .1>>J/ [6JJ, read 67-4] .Court (ound
that aeals (ro! roceedin%s ter!inatin% arental ri%hts
could not be conditioned on the abilit" to a" the substantial
record rearation (ees& Court reasoned that it was a :uasi
cri!inal roceedin%, and enu!erated two e?cetions to the
%eneral rule that states do not ha$e to ad<ust ractices (or
econo!ic di((erencesA the ri%ht to $ote and cri!inalK:uasi-
cri!inal roceedin%s/&
1hen no (unda!ental ri%hts are at sta-e, courts are less
willin% to stri-e down econo!ic barriers& 2nited States v.
4ras .1>97/ .Boddie was not e?tended to ban-rutc" (ilin%
(ees, (indin% no (unda!ental ri%ht/D %rtwein v. Schwab
.1>97/ .Boddie was not e?tended to wel(are bene(it aeals,
(indin% !uch less constitutional si%ni(icance in areas o(
econo!ics and social wel(are/
Bon-(unda!ental interests do not recei$e strict scrutin"&
o Food and necessities are not dee!ed a (unda!ental interest&
$andridge v. Williams .1>90/ .court uheld li!its on aid to need"
(a!ilies with children, (indin% that it did not $iolate e:ual
rotection, and was not sub<ect to strict scrutin"& 2!er(ect state
laws (or social wel(are are not necessaril" unconstitutional&/
o 5helter is not $iewed as a (unda!ental interest& ,indsey v. &ormet
.1>92/ .uheld state law allowin% e$iction (or nona"!ent o( rent,
re<ectin% that shelter be $iewed as a (unda!ental interest su((icient
to <usti(" hei%htened scrutin"/
o @ducation is not $iewed as a (unda!ental interest& San Antonio
/ndependent School $ist v. )odrigue- .1>97/ [697, read 64, class 95]
.court (ound no e:ual rotection $iolation (or school district (undin%
s"ste!, where so!e districts had !ore !eans than others& Found no
identi(iable class, and no (unda!ental ri%ht to education/ B4' 5@@
"lyler v. $oe .1>62/ .alied hei%htened scrutin" to re:uire
ad!ission o( ille%al aliens to ublic schools/D artine- v. Bynum
.1>67/ .uholds law den"in% (ree tuition to -ids li$in% in the district
onl" (or that urose/D 4adrmas v. $ikinson "ublic Schools .1>66/
.uholdin% state re:uire!ent (ro transortation (ees (or students/&
o 2nter!ediate 5crutin"
8ender Classi(ications
*istoricall", %ender based classi(ications were uheld, and recei$ed no
hei%htened scrutin"& Bradwell v. State .1697/ .uholdin% denial o( bar
ad!ission to wo!an, (indin% that 14
th
#!end!ent did not al" to se?
discri!ination/D inor v. Happersett .1694/ .14
th
a!end!ent did not
e?tend the ri%ht to $ote/&
o Laws ai!ed at the creation o( searate sheres (or wo!en were
uheld& (oesaert v. Cleary .1>46/ [992, class JJ, read 92] .uheld a
law restrictin% the abilit" o( wo!en to wor- in bars/
o 8raduall", hei%htened scrutin" be%an to e!er%e& )eed v. )eed
.1>91/ .4sed rational basis to in$alidate a ban on wo!en ser$in% as
estate ad!inistrators& ERichards thin-s that when rational basis is
used to in$alidate le%islation, it denotes a shi(t& *ere there were
concei$able rational basises = i&e& !en were better educated&F/D
*rontiero v. )ichardson .1>97/ .in$alidated a double standard (or
sousal bene(its (or ser$ice !e!bers& Brennan luralit" alied and
ad$ocated (or hei%htened scrutin", a(ter co!arin% race to %ender&
Concurrence said while @R# under debate, should abstain as it is
olitical/&
2dea o( a race %ender analo%" is o(ten used to <usti(" a hei%htened (or! o(
re$iew (or %ender classi(ications& Richards, $iew, also ad$ocated b"
Brennan in *rontiero luralit"& [class JJ]
8ender classi(ications now re:uire hei%htened scrutin" & Craig v. Boren
.1>9J/ [995, class J9, read 92] .5truc- down di((erential treat!ent o( se?es in
state li:uor law, and enu!erated hei%htened scrutin" standardA %ender
classi(ications !ust ser$e important governmental objectives and !ust be
substantially related to the achie$e!ent o( those ob<ecti$es& *ere it (ound
that there was not a substantial relation to the %o$ern!ent,s sa(et" interest/
o )en are e:uall" rotected ississippi 2niversity for Women v.
Hogan .1>62/ .struc- down a state wo!en,s colle%e ban on !en =
!en are e:uall" rotected (ro! %ender discri!ination& Re<ected
notion that there was a need (or %ender based a((ir!ati$e action/
o )ore than i!ortant, <usti(ication !ust be e?ceedin%l" ersuasi$e&
..'.B. v. Alabama .1>>4/ .struc- down %ender based ree!tor"
challen%es, (indin% that %ender classi(ications re:uire an
e0ceedingly persuasive justification&/D 2nited States v. 1irginia
.1>>J/ [961, class J6, read 97] .Court struc- down Oir%inia )ilitar"
2nstitute,s ban on wo!en, (indin% that it did not ro$ide an
e?ceedin%l" ersuasi$e <usti(ication& Court reasoned that wo!en
were deri$ed o( the abilit" to share in the uni:ue reutation that the
school had, and that searate (acilities would not su((ice& 5calia
dissent ar%ues, a!on% other thin%s, that the decision will end sin%le
se? education& ERichards notes that e?ceedin%l" ersuasi$e
<usti(ication is %reater than inter!ediate scrutin", but less than
strictF/&
Cistinctions based on physical se0 differences are held to a si!ilar
standard, but are !ore li-el" to con$ince the court& [read 94]
o +re%nanc" can be treated di((erentl" . (eduldig v. Aiello .1>94/ [9>7]
.uholds e?cludin% re%nanc" related disabilities (ro! the state
disabilit" insurance s"ste!/
o 5tatutor" Rae Laws can consider se?& ichael . v. Superior
Court .1>61/ .4holds a statutor" rae law that treats !ales and
(e!ales di((erentl"& Reasonin% based on histor" = !en unished
with i!rison!ent, wo!en with re%nanc"& Cissent ar%ues that the
law is based on stereot"es, and that a %ender neutral one would be
<ust as e((ecti$e/
o 5electi$e 5er$ice does not ha$e to include wo!en& )ostker v.
(oldberg .1>61/ [class J6->] .Re<ected a challen%e to the selecti$e
ser$ice onl" re%isterin% !en, (indin% that Con%ress considered and
re<ected doin% so& Cissent ar%ued that there was no relation to an
i!ortant %o$ern!ental interest&/
o 2lle%iti!ate Fathers can be treated di((erentl"& "arham v. Hughes
.1>9>/ .uheld a law den"in% ille%iti!ate (athers the ri%ht to sue (or
wron%(ul death, (indin% that the" can choose to beco!e le%iti!ate&/D
,ehr v. )obertson .1>67/ .court uheld law den"in% ille%iti!ate
(ather notice rior to adotion/D &guyen v. /.&.S. .2001/ .uheld law
treatin% children di((erentl" deendin% on whether the !other or
(ather was the citi0en& Found it was substantiall" related to the
achie$e!ent o( %o$ern!ental interests in ensurin% biolo%ical
relationshi, and child-arent relationshi/ B4' 5@@ Caban v.
ohammed .1>9>/ .in$alidated a law %i$in% !others !ore ri%ht in
adotion roceedin%s than (athers o( ille%iti!ate children& Bo
substantial relation to a le%iti!ate interest/&
o But does this reco%nition bene(it wo!enI [607]
Ciscri!inator" @((ect o( 5e? Ciscri!ination& "ersonnel Administrator of
ass. 1. *eeney .1>9>/ .enu!erated two art test (or laws challen%ed (or
their disroortionate i!actA is the classi(ication neutral with respect to
gender, and i( so, whether its e((ect reflects invidious gender based
discrimination& *ere the court (ound the li(eti!e re(erence in ci$il
ser$ice <obs (or $eterans to satis(" the test, as it was %ender neutral, and all
non $eterans, !en and wo!en ali-e, (elt the e((ects&/
)ost re(erential treat!ent (or wo!en (ails, unless it is beni%n or
co!ensator"&
o +roert" ta? e?e!tions& 4ahn v. Shevin .1>94/ .uheld under
rational basis, re-Crai%, a roert" ta? e?e!tion (or widows, but
not widowers&/
o #li!on"& %rr v. %rr .1>9>/ .struc- down law i!osin% ali!on" on
husbands but not wi$es = indi$iduali0ed considerations were
re:uired/
o Bene(its ro%ra!s& Weinberger v. Wiesenfeld .1>95/ .struc- down
sche!e which %a$e less social securit" bene(its (or widowers&/D
Califano v. (oldfarb .1>99/ .struc- down restrictions on widower
recei$in% sur$i$or bene(its when there were none (or widows/D
Wengler v. $ruggists utual /ns. Co. .1>60/ .struc- down a state
law resu!in% deendenc" (or wo!en, but not !en, in wor-er,s
co!ensation/ B4' 5@@ Califano v. Webster .1>99/ .uheld beni%n
bene(it (or wo!en in calculatin% old a%e bene(its, (indin% that the
urose o( re!ed"in% ast discri!ination was <usti(ied/
o )ilitar" ro!otions& Schlesinger v. Ballard .1>95/ .re<ected !ale
challen%e to se? distinctions in ro!otion s"ste!& 1o!en
dischar%ed a(ter 17 "ears without ro!otion, whereas !en were
dischar%ed a(ter two ass o$ers (or ro!otion/
Other classi(ications that !a" warrant so!e (or! o( hei%htened scrutin"
;usti(ications (or al"in% hei%htened scrutin" to other classi(icationsA
o 'he RaceK8ender #nalo%"
2!!utabilit"
5alience
2rrational re<udice
2n$idious Ciscri!ination
5tereot"es
2rrele$ance
+owerlessness
o 'he Reli%ion #nalo%"
2rrational re<udice
2rrele$ance
#liena%e
o #nalo%" to RaceA Coes not !eet !ost ele!ents, but aliens are
owerless as the" cannot $ote
o 5trict 5crutin" is %enerall" re:uired (or restrictions on le%al aliens
b" states& (raham v. )ichardson .1>91/ [611, class 90, read 95] .held
that states could not den" wel(are bene(its to aliens, (indin% that
status was inherentl" susect, and sub<ect to close scrutin"/D /n )e
(riffiths .1>97/ .e?tended 8raha! to er!it aliens to ractice law/D
Sugarman v. $ougall .1>97/ .in$alidated law barrin% aliens (ro!
er!anent ositions in ci$il ser$ice, thou%h %rantin% an e?cetion
(or certain ositions related to %o$ern!ent (unction/
5u%ar!an %o$ern!ent (unction e?cetion has been read
broadl" to e?clude aliens (ro! cate%ories o( e!lo"!ent&
*oley v. Connelie .1>96/ .alied rational basis to uhold
e?clusion (ro! olice/D Ambach v. &orwick .1>9>/ .uheld
e?clusion (ro! ublic school teachin%/ B4' 5@@ Bernal v.
*ainter .1>65/ .re<ectin% ban on aliens (ro! ser$in% as
notaries/
Federal ree!tion !a" be an alternati$e %round (or stri-in%
down restrictions on aliens& +oll v. oreno .1>62/ [617]
.stri-in% down restriction on aliens to do!icile in state to
recei$e state tuition rates, (indin% that Con%ress inaction on
abilit" to do!icile ree!ted state action/
o Less scrutin" re:uired (or restrictions on le%al aliens b" the (ederal
%o$ern!ent& Hampton v. ow Sun Wong .1>9J/ .2n$alidatin% a bar
on le%al aliens (ro! wor-in% in the (ederal ci$il ser$ice, but
indicatin% that the +resident or Con%ress could roerl" roscribe/D
athews v. $ia- .1>9J/ .in de(erential re$iew, uheld e?clusions o(
aliens (ro! )edicare/
Bon-!arital Children
o #nalo%" to RaceA 2!!utable, histor" o( re<udice, li-el" irrele$ant,
and the sti%!a ar%uabl" creates a de%ree o( owerlessness
o 5crutin" (or restrictions on ille%iti!ate children are $a%ue, thou%h
there is so!e basis (or hei%htened scrutin"&
Cuttin% ille%iti!ate children out entirel" see!s in$alidA ,evy
v. ,ouisiana .1>J6/ [615, class 91] .struc- down a rohibition
on ille%iti!ate children suin% (or their !other,s wron%(ul
death = oinion hinted at both rational and hei%htened
scrutin"/D +rimble v. (ordon .1>99/ .struc- down ban on
ille%iti!ate children inheritin% (ro! (athers a(ter al"in%
scrutin" that was Gnot toothlessH/ B4' ,alli v. ,alli .1>96/
.held that it was constitutional to re:uire that aternit" be
ro$en in the (ather,s li(eti!e/D ills v. Habluet-el .1>62/
.in$alidate law re:uirin% aternit" suit be brou%ht be(ore
child one "ear old, when no li!it on le%iti!ate children/D
"ickett v. Brown .1>67/ .in$alidate law si!ilar to in )ills,
but with two "ear eriod/
5ubordinatin% interests to le%iti!ate children see!s $alidA
,abine v. 1incent .1>91/ .uheld intestate succession
ro$ision subordinatin% the ri%hts o( ac-nowled%ed non-
!arital children to other relati$es/D athews v. ,ucas .1>9J/
.uholdin% 5ocial 5ecurit" act ro$ision disad$anta%in% non-
!arital children = le%iti!ac" is a constitutional indicator o(
deendenc" status/ B4' 5@@ Weber v. Aetna Cas. # Sur.
Co. .1>92/ .held that deendant unac-nowled%ed non-
!arital children could not be subordinated to clai!s o(
le%iti!ate children/
*ei%htened scrutin" at lastI Clark v. .eter .1>66/
.in$alidated si? "ear statute o( li!itations on suort actions
(or children, (indin% not substantiall" related to state interest&
Court said ille%iti!ac" was sub<ect to intermediate
scrutiny&
Cisabilit" 5tatus .!ental retardation/
o #nalo%" to RaceA O(ten i!!utable, o(ten salient, not alwa"s
irrational with resect to re<udice, not entirel" irrele$ant, but
lar%el" owerless .thou%h 1hite indicates otherwise/
o )ental retardation is sub<ect to rational basis scrutin" & Cleburne v.
Cleburne ,iving Center6 /nc. .1>65/ [616, read 99, class 91] .Court
re<ected denial o( 0onin% er!it (or %rou ho!e, but re<ected lower
court,s alication o( hei%htened scrutin"& *eld that rational basis
scrutin" was re:uired (or (our reasonsA Reduced !ental caacit"
<usti(ies secial treat!ent (ro! state, not discri!inator", %rou is
not oliticall" owerless, and the e((ects o( er!ittin% hei%htened
scrutin" are too nu!erous& )arshall oinion ar%ues that in truth,
hei%htened scrutin" is bein% alied, as the er!it denial has a
rational basis = in turn ad$ocates (or $ar"in% the le$el o( scrutin"
with the i!ortance o( the interest a((ected, and the in$idiousness o(
the discri!ination/
#%e Classi(ications
o #%e classi(ications are sub<ect to rational basis& assachusetts Bd.
of )etirement v. urgia .1>9J/ .holds that rational basis scrutin" is
re:uired in uholdin% !andator" retire!ent a%e (or state olice/
+o$ert" and 1ealth Classi(ications
o #nalo%" to RaceA +owerlessI *a$e abilit" to $ote, but do not $ote
in ractice& Bot i!!utable, not necessaril" salient, thou%h there is
irrational re<udice&
o 1ealth classi(ications are sub<ect to rational basis & .ames v.
1altierra .1>91/ [625, class 91] .4held a law re:uirin% $oter
aro$al (or the creation o( low inco!e housin%& Found that
rational basis was the roer le$el o( scrutin"/&
5e?ual Orientation
o #nalo%" to RaceA Bot clear that it is i!!utable& +eole re!ain in
the closet = not clearl" salient& 'here is !uch irrational re<udice =
colored b" $icious dehu!ani0in% stereot"es& Bot irrele$ant in the
a%e o( Bowers, but ost Lawrence& Bot clear that owerless = or is
itI Esee Brennan in )owlandF
o 5e?ual Orientation is sub<ect to rational basis, but it loo-s
hei%htened in ractice& )omer v. 'vans .1>>J/ [625, read 96, class 92]
.#lies rational basis scrutin" to o$erturn a constitutional
a!end!ent barrin% L8B' eole (ro! see-in% le%al rotection
a%ainst discri!ination& Court reasons that ani!us !oti$ated the
le%islation, and a(ter bein% too broad and too narrow, is thus
in$alid/D )owland v. ad )iver local School $istrict .1>65/ .in
dissent (ro! denial o( certiorari, Brennan ad$ocated (or se?ual
orientation to recei$e hei%htened scrutin", (indin% it was irrational
and that %a"s were owerless/
(tate %ction and Congressional /nforcement of Civil Rights
5tate action is re:uired (or there to be an e:ual rotection or due rocess clai! under the 14
th

#!end!ent = GBo 5tate shall !a-e or en(orce an" law&H But 5ee (uest&
o Ori%inall" broad !andates were !ade, but were soon restricted b" the courts
5tatutor" Fra!ewor- o( Ci$il Ri%hts Laws o( Reconstruction @ra
Ci$il Ri%hts laws o( the era
o 16JJ #ct = @laborated on the 17
th
#!end!ent, and enu!erated the
ri%hts that the citi0ens o( the united states ha$e&
On (ear that the 17
th
#!end!ent would be insu((icient to <usti("
the statue, the 14
th
#!end!ent was rati(ied in 16J6&
o 1690 #ct = cri!inali0ed consiracies to den" (ederal ri%hts& 2t also dealt
ri!aril" with state denials o( $otin% ri%hts, in elaboratin% on the 15
th

#!end!ent&
o 1691 and 1695 #cts = were established to en(orce the 14
th
#!end!ent,
and established cri!inal and ci$il liabilities (or $iolation&
Laws that re!ain $alid (ro! the era [669, read 65-J]
o Cri!inal
16 45C V 241 = cri!inali0es a consirac" to in<ure, oress,
threaten, or inti!idate so!eone (or e?ercisin% their
constitutional ri%hts&
16 45C V 242 = cri!inali0es the deri$ation o( ri%hts done
under color o( law
o Ci$il
42 45C V 1>61 = !andates that all eole ha$e the sa!e ri%hts
under the law in each state&
42 45C V 1>62 = !andates that all citi0ens ha$e the sa!e
roert" ri%hts in each state
42 45C V 1>67 = (inds that denial o( ri%hts, ri$ile%es and
i!!unities under color o( law is actionable
42 45C V 1>65.7/ = !a-es a consirac" to inter(ere with one,s
ci$il ri%hts actionable&
'he re:uire!ent (or state action was una$oidable& Civil )ights Cases .1667/ [666, class
9J, read 6J] .2n$alidates the Ci$il Ri%hts #ct o( 1695, which cri!inali0e denials o( e:ual
en<o"!ent in ublic acco!!odations& Court (inds that the 14
th
#!end!ent is only
directed at state action, and thus there is no constitutional basis (or (ederal le%islation
directed at ri$ate action& Re<ects (indin% a <usti(ication in the 17
th
#!end!ent, as this
is not sla$er"& *arlan,s dissent ar%ues that the 17
th
#!end!ent %rants the authorit" to
address the e((ects o( sla$er", as here, and ar%ues that 5ection 5 o( the 14
th
#!end!ent
as well could <usti(" the law in that it rotects e$er"one,s ri$ile%es and i!!unities,
and state action is (ound in the licenses to oerate ri$ate businesses/D B4' 5@@
2nited States v. Cruikshank .1695/ .5ection J o( the 1690 act as alied was
unconstitutional - barred inter(erence with the ri%ht to asse!ble& But, court indicated
that the result would ha$e been di((erent i( the asse!bl" was to etition the %o$ern!ent
(or redress/
o O$er ti!e, the Court (ound state action under the ublic (unction and si%ni(icant state
in$ol$e!ent concetions&
+ri$ate er(or!ance o( a 'ublic $unction %i$es rise to (indin% state action under the
14
th
#!end!ent& arsh v. Alabama .1>4J/ [6>4, read 69] .Co!an" town was
indistin%uishable (ro! other towns, and thus er(or!ed a ublic (unction&
#ccordin%l", e?clusion o( sea-ers was unconstitutional&/
arsh has been %reatl" restricted& Amalgamated *ood 'mployees 2nion v.
,ogan 1alley "la-a .1>J6/ .$iewed shoin% !all as ser$in% a ublic (unction
as in arsh/ B4' ,loyd Corp v. +anner .1>92/ .uheld e?clusion o( anti-war
lea(letters (ro! ri$ate shoin% center/D Hudgens v. &,)B .1>9J/ .indicated
Lo%an Oalle" was no lon%er law, and ri$ate shoin% center owners are not
en%a%ed in state action/
+ublic (unction has been (ound in ri$ate ar-s& 'vans v. &ewton .1>JJ/
.ublic (unction was a secondar" <usti(ication (or stri-in% down racial
e?clusions in a ri$ate ar- oerated wholl" as a ublic one/
@?clusion (ro! ri!ar" elections can be seen as ublic (unction cases& &i!on
v. Herndon .1>29/ .law e?cludin% blac-s (ro! ri!ar" elections was in$alid
er the 14
th
#!end!ent/D &i!on v. Condon .1>72/ .racial e?clusion (ro! art"
e?ecuti$e co!!ittees in$alid on account o( co!!ittees bein% an a%ent o( the
state/D Smith v. Allwright .1>44/ .o$erruled 8ro$e" $& 'ownsend, (indin% that
e?clusion (ro! ri!ar" con$entions was unconstitutional = state reco%ni0ed
role o( con$entions in selection rocess = thus state action/D +erry v. Adams
.1>57/ .ri$ate art" club,s e?clusion o( blac-s $iolated the 15
th
a!end!ent (or
the endorse!ent,s role in the election&/
+owers e?clusi$el" reser$ed to the state are now the onl" real!s that the Court
is willin% to tolerate an e?tension o( the ublic (unction doctrine to& .ackson v.
etropolitian 'dison Co. .1>94/ [6>6] .Re<ected e?tendin% the ublic (unction
doctrine to ublic utilities, (indin% that it !ust be a ri$ate entit" e?ercisin%
owers traditionall" e0clusively reserved to the state&/D *lagg Bros.6 /nc. v.
Brooks .1>96/ .wearhouse!an,s arbitration ractice did not !eet the standard
o( e?clusi$e reser$ation to the states, thus ublic (unction not (ound/
(ignificant state involvement o( state actors in ri$ate action !a" %i$e rise to (indin%
state action& Shelley v. 4raemer .1>46/ [>01, read 66] .Court struc- down racial
co$enants in roert", (indin% that the <udicial en(orce!ent o( the co$enants could be
$iewed as state action& Court (ound that wholl" ri$ate conduct was unreachable, and
distin%uished too between state en(orce!ent and non-en(orce!ent = (or!er rises to
state action whereas latter does not/D 5@@ #L5O 5ection below on 14
th
#!end!ent
ri%hts and ri$ate action&
#n" en(orce!ent o( racial restrictions in deeds, trusts, or ri$ate conduct
su((ices (or state in$ol$e!ent& Barrows v. .ackson .1>57/ .holdin% that states
cannot en(orce da!a%e awards (or (ailure o( ri$ate arties to en(orce racial
co$enants/D "ennsylvania v. Board of $irectors of +rusts .1>59/ .racial
restriction in trust creatin% school was unen(orceable, and ad!inistration o( the
colle%e trust b" state o((icials was enou%h to constitute state action/D "eterson
v. (reenville .1>J7/ .ri$ate se%re%ation in restaurant could not be en(orced b"
olice/D ,ombard v. ,ouisiana .1>J7/ .state courts cannot ut cri!inal
sanctions on $iolators o( racial discri!inator" olicies in ublic laces/D Bell v.
aryland .1>J4/ .o$erturnin% tresass con$iction in sit-in case, and di$idin%
e:uall" on the issue o( whether or not it su((ices (or state action to en(orce/
B4' CO)+#R@ 'vans v. Abney .1>90/ .+ost @$ans $& Bewton, when
restriction in the trust was unen(orceable, Court (ound that the state,s decision
to re$ert the land to trust,s heirs was not state action suortin% racis!/
o 2n %eneral, state cannot en(orce restrictions when arties !utuall" do
not want to .Ci$il Ri%hts #ct 16JJ/, but when one art" wants to, the"
!a" be able to& [>0J->09]
Con%ress can rotect a%ainst ri$ate inter(erence with constitutional ri%hts on $arious %rounds&
o 14
th
#!end!ent ri%hts can be rotected a%ainst ri$ate action & 2nited States v. (uest .1>JJ/
[>26, read 66->] .uholdin% indict!ents under 16 45C V 241 (or inter(erence with en<o"!ent o(
ublic acco!!odations, and the ri%ht to interstate tra$el& Court notes that state action is
re:uired, and can be (ound in the articiation o( the olice& Court (inds that ri$ate
inter(erence with constitutional ri%hts can be reached& Brennan concurrenceKdissent notes that
a !a<orit" o( the <ustices (ind that 5 6 of the 78
th
%mendment reaches rights violations
without state action/&
1hen actin% in con<unction with state actors& 2nited States v. "rice .1>JJ/ [>72]
.Reinstated char%es under 16 45C V 242 a%ainst ri$ate indi$iduals en%a%ed with
olice in consirac" a%ainst ci$il ri%hts = cooeration was Gunder colorH o( law/D
Williams v. 2nited States .1>51/ .(ound that ri$ate detecti$e with secial o((icer
bad%e oerated under color o( law/D 2nited States v. Williams .1>51/ .court had
di$ided on whether ri$ate actors actin% in con<unction with state actors acted under
color o( law/
1hen actions are calculated to restrict an enu!erated ri%ht& Screws v. 2nited States
.1>45/ .re<ected char%es o( $a%ueness, thou%h in conte?t o( state action, as to what
ri%hts are rotected b" re:uirin% a will(ul deri$ation o( a ri%ht enu!erated in the
constitution or (ederal law&/
V 245 o( the 1>J6 Ci$il Ri%hts #ct ro$ides broad cri!inal and ci$il liabilit" (or
ri$ate inter(erence with ri%hts rotected b" the 14
th
#!end!ent& [>7J]
Ci$il Re!edies are also ro$ided b" con%ressional statute, but onl" (or $iolations
a%ainst rotected classes& (riffin v. Breckenridge .1>91/ .e?anded interretation o(
1>65.c/, which barred consirac" to li!it constitutional ri%hts, to reach ri$ate
consiracies& Found that with a showin% o( in$idious discri!ination, and so lon% as
the statute did not beco!e a %eneral tort, the use was aroriate/ B4' 5@@ 2nited
Brotherhood of Carpenters v. Scott .1>67/ [>7>] .(indin% that consirac" statute did not
reach $iolence in the conte?t o( unions, and that so!e de%ree o( state in$ol$e!ent in
the consirac" or ai! o( the consirac" to li!it state acti$it" were re:uired& Class
based ani!us, and other econo!ic !atters are not reachable&/D Bray v. Ale!andria
Womens Health Clinic .1>>7/ .ani!us towards abortion was not reachable, as a class
cannot be based on those wantin% certain conduct& 1o!en are not the class, as the" all
do not want abortions/ ECi$il re!edies (or this conduct were later obtainable throu%h
R2COF
o 17
th
#!end!ent does not re:uire state action, and !a" be a <usti(ication (or rotections&
.ones v. Alfred H. ayer Co. .1>J6/ [>42] .2n considerin% the constitutionalit" o( 42 45C V
1>62 = based on 16JJ act, which ro$ided e:ual roert" ri%hts on basis o( race, court (ound
that the statute reached ri$ate sales, and that it was constitutionall" suorted b" the 17
th

#!end!ent, which has been interreted to allow Con%ress to abolish the badges and
incidents of slavery&/&
16JJ #ct .42 45C V 1>61, 1>62/ ro$isions ertainin% to roert" ha$e been
interreted broadl" to rotect race& Sullivan v. ,ittle Hunting "ark6 /nc. .1>J>/
.residence association,s denial o( abilit" o( white ho!eowner to lease !e!bershi to
blac- erson $iolated 16JJ #ct& 1here no selecti$it" in a %rou !e!bershi, cannot
be selecti$e on account o( race/D )unyon v. cCrary .1>9J/ .(ound 5ection 1>61
rohibited ri$ate schools (ro! den"in% ad!ission on account o( race/ B4' (eneral
Building Contractors Assn. v. "ennsylvania .1>62/ .held that suits under 1>61 need to
ha$e a discri!inator" intent, not !erel" disroortionate i!act/&
'he @n(orce!ent Clause .V5/ o( the 14
th
#!end!ent %rants Con%ress Broad Re!edial +owers
o Re!edial owers o( Con%ress can rotect ri%ht to $ote&
Be(ore con%ressional action, the Court did not re:uire broad re!edies& ,assiter v.
&orthampton County 'lection Bd. .1>5>/ [>46, read >1] .court uheld the
constitutionalit" o( literac" tests and other re%istration re:uire!ents, (indin% it is a
neutral re:uire!ent/
'he Court uheld Con%ressional #ction& South Carolina v. 4at-enbach .1>JJ/ [class
60] .uholds the 1>J5 Ootin% Ri%hts #ct, (indin% that it is ai!ed at a lon% histor" o(
discri!ination, and neutral re:uire!ents that e((ecti$el" disen(ranchised& Court
sustained the (or!ula deri$ed to tar%et <urisdictions to susend literac" tests/D %regon
v. itchell .4holdin% 1>90 a!end!ents in$alidatin% nationwide literac" tests/
'he re!edial re:uire!ent is interreted loosel" when rotectin% ri%ht to $ote &
4at-enbach v. organ .1>JJ/ [>52, read >2, class 60] .Court uholds section o( Ootin%
Ri%hts #ct er!ittin% ri%ht o( educated +uerto Ricans to $ote& 4holds as an e:ual
rotection !eans o( accessin% %o$ern!ental ser$ices, and as a !eans (or eli!inatin%
in$idious discri!ination (or $oter :uali(ications ECongress enumerating what an
undue burden on a fundamental right isF& Brennan !a<orit" $iews 56 as a one2way
ratchet to er!it Con%ress to e?and on ri%hts, but cannot reduce ri%hts Court
reco%ni0es& *arlan dissent ar%ues that such a la? standard cannot be er!itted (or
in$alidatin% state laws, rather, it is the dut" o( the court to ascertain whether state laws
are $iolatin% constitutional rinciles/D )ome v. 2nited States .1>60/ .uheld ro$ision
o( $otin% ri%hts act allowin% (ederal in$alidation o( state election lans that
disroortionatel" burden !inorities = (inds it is aroriate er the 15
th
#!end!ent/
B4' 5@@ %regon v. itchell .1>90/ [>56, class 61, read >7] .Court uholds ro$ision in
Ootin% Ri%hts #ct (or 16 "ear olds to $ote in (ederal elections, but stri-es down
ro$ision al"in% to state elections& Faction oosin% re:uire!ent on states ar%ues
in$idious discri!ination !ust be shown& Brennan (action suortin% the ro$ision to
the states sa"s it should be e$aluated on rational basis/ERichards sa"s that Con%ress is
(indin% an undue burden on a (unda!ental ri%htF
o @n(orce!ent ower is li!ited to +roortional and Con%ruent re!edies
Con%ressional Le%islation based on the en(orce!ent clause !ust be re!edial & City of
Boerne v. *lores .1>>9/ [>J2, read >7] .Court stri-es down Reli%ious Freedo!
Restoration #ct, which re:uired co!ellin% interest <usti(ication (or an" state decision
burdenin% reli%ious e?ercise& Court held that V5 onl" allows remedial le%islation,
<usti(ied b" a showin% o( discri!ination, not substantive creation o( constitutional
ri%hts& #dditionall" the le%islation !ust re(lect a roortionalit" and con%ruence to a
le%iti!ate %oal&/D 2nited States v. orrison .2000/ [>90, read >4] .2n$alidates (ederal
statue ro$idin% ci$il re!edies (or $icti!s o( %ender cri!e, (indin% that thou%h there
was substantial e$idence, state action was re:uired, and the le%islation was not
su((icientl" re!edial/
5o$erei%n 2!!unit" o( 5tates can onl" be li!ited b" re!edial le%islation&
*lorida "repaid "ostsecondary 'ducation '!pense Board v. College Savings
Bank .1>>>/ .2n$alidatin% atent le%islation abro%atin% so$erei%n i!!unit",
(indin% there was no e$idence <usti("in% (indin% it as re!edial, and it was not
roortionate and con%ruent/D College Savings Bank v. *lorida "repaid
"ostsecondary 'ducation '!pense Board .1>>>/ .stri-in% down atent
le%islation on the sa!e %rounds = not -ind o( ri%hts en$isioned in 14
th

#!end!ent/&
Le%islation is not %enerall" re!edial i( the classi(ications are not hei%htened or
susectA
o #%e& 4imel v. *lorida Board of )egents .2000/ .5tri-es down
le%islation er!ittin% state e!lo"ees to sue states (or a%e
discri!ination = $iolates roortionalit" and con%ruence test, and
insu((icient e$idence o( discri!ination/
o Cisabilit"& Board of +rustees of the 2niversity of Alabama v. (arrett
.2001/ .in$alidatin% 5ection 2 o( #C# (or creatin% cause o( action
a%ainst states (or disabilit" status& Finds that there was insu((icient
e$idence o( discri!ination, and it was not con%ruentKroortional/ B4'
5@@ +ennessee v. ,ane .2004/ .uholdin% section 22 o( the #C#,
(indin% that (unda!ental ri%hts, such as access to courts, were at sta-e&
'here was a histor" o( discri!ination, and it is con%ruent and
roortional&/
o 8ender Ciscri!ination& &evada $epartment of Human )esources v.
Hibbs .2007/ .4holds (a!il" and !edical lea$e act, %roundin% it in
histor" o( discri!ination a%ainst wo!en& Finds it is con%ruent and
roortional/&