You are on page 1of 48

Outline

I. Differences between EP, SDP, and PDP:


a. Equal Protection- Cant do this to me while treating others differently
b. Procedural Due Process- Cant do this to me without notice and hearing.
c. Substantive Due Process- Cant do this to me AT ALL.
II. Due Process
a. 14
th
Amendment
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty, or property without due process of law;
nor deny to any person within its jurisdiction the equal protection of the laws.
b. 5
th
Amendment
No person shall be deprived of life, liberty, or property without due process of law.
c. Rights
i. Life, Liberty, and Property = Due Process
1. Life = cruel and unusual punishment.
2. Liberty = government wants to take your freedom
3. Property = gov. wants to take your property.
ii. Rights can pre-empt powers.
iii. Governments have powers; people have rights.

III. Standards of Review
a. Rational Basis: Means are rationally related to a legitimate government purpose.
b. Intermediate: Means are substantially related to an important government goal.
c. Strict Scrutiny: Means are substantially related to serve a compelling governmental goal. Narrowly
tailored - No less restrictive alternatives (LRA).












ECONOMIC INTERESTS

I. SUBSTANTIVE DUE PROCESS [467-491]
a. Overview
i. Derived from the 5
th
and 14
th
Amendment
ii. You cant do this to me AT ALL.
iii. 2 Eras of Substantive due Process
1. Economic Interest
2. Privacy Interest
b. Natural Law
i. The written constitution reaffirms preexisting fundamental rightssuch as life, liberty, and
propertythat are entitled to protection whether or not they are explicitly stated in the constitution.
Certain natural rights prevailed for all men & that the government cannot limit or impair these rights.
ii. Calder v Bull
1. Chase & Natural Law:
a. The proper role of the SC was to invalidate legislation if it interfered with rights that the
natural law had vested in the people.
2. Iredell Whos to decide what right v is wrong?
a. Textualism: The courts had no role in voiding a law just bc they think its contrary to
natural law. Ct. should only void law if it has constitutional text support. Otherwise would
result in subjective decisions of Justices.
c. Development of SDP
i. Munn v Illinois
1. State can exercise its PP to control the use of property when it is necessary for the public good.
ii. Mugler v Kansas Explicitly Stating Cts Allowed to Apply SDP
1. Must look to the substance of the laws to see if the legislature had surpassed its authority to
exercise its police powers to protect the public health, morals, and safety.
2. Rule: a statute had to have a substantial relation to the protection of the public health, morals,
or safety before the Ct would sustain the measure as a valid exercise of the states police power.
iii. Allgeyer v Loisiana
1. liberty protected by Due Process Clause includes right to contract, which was abridged by
state insurance regulation
d. Lochner Era
i. Arrow
1. Lochnerizing: Ct. would essentially make a ruling due to subjective opinion, but discise it with
made up SDP economic interest rationale.
2. Holmes Dissent Whos to decide whats good v. evil? THE PEOPLE
ii. Lochner v. New York
1. Rule: Freedom of K is found in DP clause
2. Note: Different from K clause bc this grants freedom to enter and make lawful Ks
a. K clause only restricts existing K.
3. Facts: K a law limiting the number of hours that bakers could work unreasonably interfered
with the freedom to enter into lawful K bc that freedom is a liberty protected under 14
th
.


iii. Coppage v Kansas- Protect Unionization
1. Made crime to condition employment on not being part of union-not allowed
iv. Muller v Oregon- Max Female Hours Law
1. Law regulated female workers-ok since the work is related to effects would have on society if
allowed to work lots of hours
v. Bunting v. Oregon- State Met PP Burden for Hour Law
1. Upheld law that limited hours because state showed that it was proper exercise of PP
vi. Adkins v Childrens Hospital- Min Wage Law
1. Law setting min wage for women and children not valid since prevents parties from making K
on best terms can get and not related to work employer engaged in.
e. The Demise of Lochner After the New Deal
i. Nebbia v. New York- Overruled Lochner
1. A grocer, convicted for selling milk at prices below the legislatively-mandated minimum price,
challenges the constitutionality of the regulation.
2. Rule: if laws seem to have reasonable relation to proper purpose, and there no arbitrary or
discriminatory elements, then due process is satisfied
3. Reasoning
a. K rights are not absolute due process satisfied if law is reasonable and not arbitrary.
ii. West Coast Hotel v Parrish
1. Upheld a minimum wage law for women, overruling Muller
2. The exploitation of a class of workers who are in an unequal position with respect to bargaining
power and are thus relatively defenseless against the denial of a living wage is not only
detrimental to their health and well-being but casts a direct burden for their support upon the
community.
iii. Carolene Products- Footnote 4
1. Footnote 4: Minimum Rational Basis Standard governs DP review of economic legislation
2. Heightened scrutiny may be appropriate if statute directed to particular DISCRETE AND
INSULAR MINORITIES
f. Minimum Rationality Review of Economic Legislation
i. Williamson v. Lee Optical Co.
1. An optician challenged a state law that prohibited him from dispensing glasses or fitting lenses
without a prescription
2. Rule: Economic regulation is constitutional if there exists some hypothetical rationale for the
law
3. Dont look to actual purpose of the law to make optometrists more money
4. Court attempts to come up with reasoning for legislature legislature may have concluded . . .
g. Punitive Damages
i. BMW v Gore
1. Rule: punitive damages were excessive so they were overturned
2. Reasoning
a. $2 million in punitive compared to $4K in compensatory is grossly excessive
b. This was arbitrary deprivation of property by the state without due process
substantively not procedurally
c. BMW was not on notice that this type of loss was even possible in case.

ii. State Farm v Campbell


1. Facts: Punitive: $145 million, Compensatory $1 million
2. Rule: this is excessive and overturned
3. Reasoning
a. Factors:
i. Cant let experts come in and talk about practices in other states
ii. Relevant civil fines in the area
iii. Difference between compensatory and punitive damages no more than 1 digit
ratio ex: 1:9.
iii. Phillip Morris v Williams
1. Facts: Jury instruction: punitive damages awarded to punish misconduct of D and to deter
action.
2. Rule: this instruction was insufficient.
3. Reasoning
a. This was decided on procedural grounds and not substantive due process grounds.
4. Is the court retreating from substantive due process challenges to punitive damages?





















II. TAKINGS [568-594]


a. 5
th
Amendment: 4 Elements:
i. Nor should
1. Private Property
2. Be Taken
3. For Public Use
4. Without Just Compensation
ii. Definitions
1. Was there a taking?
a. Possessory taking-when gov physically occupies
b. Regulatory -gov regulation leaves no reasonable economic viable use of the property
2. Is it property- Tangible, intangible, etc. - usually based on state law
3. Is it for public use = public benefit this is broadly defined
4. Was there just compensation = fair market value
b. The Public Use Requirement
i. Rule: A use is held to be public if it is rationally related to a conceivable public purpose
ii. Berman v Parker
1. Facts: law authorized taking of private property to redevelop urban areas. Property was then
sold to private developers.
2. Rule: this is allowed as a public purpose
iii. Hawaii Housing Authority v Midkiff
1. Facts: landownership in HI was concentrated among a tiny portion of population. Law took
property from landowners and gave it to life tenants.
2. Rule: This is a public use.
a. Rejected claim that purpose was for redistribution for private and not public benefit.
b. Market malfunctioning and this law fixed it.
c. Government doesnt have to directly use property for it to be for public use.
iv. Kelo v. City of New London Public Purpose = Public Use
1. Facts: law took land away from private parties and gave it to private company to develop into
pharmaceutical plant. City needed emergency redevelopment
2. Rule: economic development can be public use
a. Public use = public purpose now; Total plan serves the public purpose; This will help
revitalize the local economy and bring in jobs
c. Regulatory Takings
i. Pennsylvania Coal Co. v. Mahon
1. A coal company challenges a state law which prohibited the company from mining in such a
way as to cause subsidence of living structures.
2. Rule: A regulation that severely restricts land use rights can constitute a taking, which is
unconstitutional unless just compensation is paid by the government.
a. The source of the damage to the surface structure is not a nuisance, but a legitimate
interest
b. Act cannot be sustained as exercise of police power so far as it affects mining coal under
streets or cities or in places where right to mine has been reserved
c. Owners of structures knew about potential for damage when they bought structure or sold
mineral rights underneath it.
ii. Miller v Schoene
1. Required cutting certain trees to save orchards down the road


2. Rule: state can exercise PP and destroy one class of property to save another if leg. Decides its
of greater value to the public
iii. Keystone v Debenedictis
1. Law required the owners of subsurface mineral rights to leave 50% of the coal in the ground
below certain types of structures and surfaces was not a taking of property for which just
compensation was due
a. Unlike Penn Coal, the law was for public purpose, enhancing public safety, not private
b. Less than 2% of coal under surface must be left to keep structure from collapsing.
iv. Penn Central Balancing Test
1. Penn Central Transportation v NYC - Penn Central Balancing
a. Facts: this building was given historical mark and denied from building a building on top
of station.
b. Rule: no because the restriction imposed are substantially related to promotion of general
welfare and not only permit reasonable benefit of use of landmark, but opportunity to
enhance other property.
1. PA central can still be used for what it was being used for. The government
cannot take what you dont have. It must already be in your bundle of sticks
2. Test: Factors for whether or not regulations go too far
i. Economic impact on landowner
ii. Interference with investor backed expectation
iii. Character of regulation
3. The 5th amendments guarantee is to bar government from forcing some
people along to bear public burden which in all fairness and justice
should be borne by public as a whole.
2. Temporary Regulatory Takings Tahoe-Sierra v Tahoe Regional Planning Agency
a. Rule: temporary development ban would have to be evaluated case-by-case basis under
PA Central test, rather than treated categorically as taking under the per se rule of Lucas.
i. Duration of taking a significant factor.
3. Palazzolo v Rhode Island
a. Rule: property owner could challenge as a regulatory taking restrictions on his property
that had originally been imposed prior to acquisition of that property
i. Fact that restrictions on land use predated landowners acquisition of title couldnt
be dispositive because future generations have right to challenge unreasonable
limitations on use and value of land.
v. Per Se Takings No balancing needed
1. Loretto v Teleprompter Per se rule of permanent physical occupation
a. Facts: NY law provided that landowner must permit cable TV to install cable wire on
landlords rental property
b. Rule: permanent physical occupation is a taking without regard to public interests that
action may serve.
i. Permanent physical occupation is government action of such unique character that
it is a taking without regard to other factors that court might ordinarily examine
2. Lucas v SC Costal Council - -per se rule of denying all beneficial or productive use


a. Facts: P bought land on beach to build condos for money. Commission declared area a
flood plain so no building on land.
b. Rule: when all economic beneficial use then per se taking.
c. Reasoning
i. Even if this is a valid health and safety law, it is a taking when all economic benefit is
taken from land.
vi. Conditional Development
1. Nollan v California Coastal Commn
a. State conditioned permit for beach property that will give easement to cross for visual
access
b. Was a taking since gov purpose wasnt related to the ban
c. PP allows to gov. to put conditions on development as long as rationally related to
preventing harms from construction
2. Dolan v City of Tigard
a. Made dedicate part of lot for flood control and traffic improvements
b. Rule: degree of connection bwt regulation and projected impacts is rough proportionality-
city has to make indiv determination that dedication is related in nature and extent to
impact of proposed development
c. Had legit interests here so OK

















III. THE CONTRACTS CLAUSE [594-600]
a. Overview


i. Art I 10: Prohibits any state law impairing the obligation of contracts.
ii. Only Applies:
1. To State or local government
2. To existing contracts
b. Home Building & Loan Assn v. Blaisdell
i. Facts: During depression, everyone getting foreclosed on. A law extended time to pay mortgages to
victims of foreclosures.
ii. Rule: Law is valid IF its temporary conditional emergency historical setting case law
reasonable public interest would otherwise suffer
iii. Reasoning
1. Obligation in K still there, just get more time to pay it
2. Ignore purpose of law, because it is no longer relevant
3. National economy can create a valid emergency that justifies the government interfering with
private contracts.
c. The Scope and Limits of Blaisdell
i. US Trust Co. v NJ Impairment of Public Contract
1. Facts: NJ has K with bondholders that money will not be used for specific purpose then the state
attempted to get out of the K and use the money for exactly that purpose
2. Rule: laws impairing states own obligation requires SS
a. A public body is not free to determine whether to pay or terminate its obligation
ii. Structural Steel Co v Spannaus
1. Facts: statute imposed new obligation on Corporations to pay pension for discharged
employees.
2. Rule: it is a violation of the K clause to impose new, serious obligations on existing contracts.
















LIBERTY INTERESTS: DUE PROCESS

I. SUBSTANTIVE DUE PROCESS AND PRIVACY


a. WHOS TO DECIDE WHATS GOOD vs. EVIL?
i. SDP = Cts deciding
b. Fundamental Liberties
i. Note: Different from FL in EP and PDP
ii. Liberty Defined: Liberty denotes not merely freedom from bodily restraint, but also the right of a
person to contract, work, learn, marry, rear children, worship God as he wishes and generally enjoy
the privileges recognized at common law as essential to the orderly pursuit of happiness. (Meyer)
iii. SOR:
1. An abridgment of FL triggers SS under SDP; No FL triggers RBT
a. SS = Government must prove legislation is necessary (LRA) (narrowly tailored) to achieve a
compelling governmental interest
b. RBT = The statute will be upheld if there is a rational relationship between the statute and
a legitimate governmental goal.
iv. Threshold Question What is a FL under SDP?
1. LEVEL OF GENERALITY: WE HAVE TO KNOW WHAT THE IT IS TO DETERMINE IF FL
v. Substantive due process Ratchets when analyzing due process issue:
1. Brennan
a. Broad definition of what constitutes fundamental right
b. Rights may change over time, and we can look to contemporary views
c. Recognizes more fundamental rights and apply strict scrutiny to strike down statute
2. Rehnquist/Scalia SDP analysis
a. Glucksberg:
i. Due Process Clause protects fundamental rights/liberties which are objectively
deeply rooted in nations history and tradition.
ii. There must be a careful description of the asserted LI (narrow levels of generality)
1. Look to our nations history, legal traditions and practices
b. If there is no support under the narrow history or tradition, there is not a fundamental
liberty interest and rational basis is triggered
i. Allows for higher deference to legislature
vi. Meyer v. NE
1. Facts: D convicted of teaching German to her child Unconstitutional
vii. Pierce
1. Law: children must go to public schools Unconstitutional
a. Decisions by parents about how to raise and educate children are covered under right of
privacy due process
c. SDP, Childbearing, and Contraception
i. Skinner v OK
1. Law: three time felons were forced to be sterilized.
2. Rule: marriage and procreation are fundamental rights that cannot be taken away without strict
scrutiny
ii. Contraception
1. Griswold v. CT
a. Law: made it illegal to use or facilitate the use of contraception by others. D was found
guilty and fined because he counseled married couple to use birth control.
b. Rule: There is a FL interest in the use of contraception by married persons


i. A statute banning such use is a violation of the due process clause
ii. Specific guarantees in the bill of rights have penumbras formed by emanations
from those guarantees that help give them life and substance
c. Goldberg concurrence (Arrow Disagrees)
i. Support for this fundamental right exists in the 9th amendment looking at the
traditions and collective conscience of the American people
2. The right to contraception has been extended to non-married people
a. If the right to privacy means anything, it is the right of the individual, married or single, to
be free from unwarranted governmental intrusion into matters so fundamentally affecting
a person as the decision to have a child (Eisenstadt)
3. The fundamental liberty interest in contraceptives has been extended to minors (Carey)
d. SDP and Abortion: 3 Historical Periods for Abortion
1. Original Jurisprudence
a. Roe v. Wade
i. The right to an abortion is a fundamental liberty interest; however, when the fetus becomes
viable, the state has a compelling interest in both maternal health and preserving which
allows them to regulate it in the following situations:
1. During the 1
st
trimester, the decision is left completely to the medical judgment of the
attending physician.
2. During the second trimester, until viability, the state may regulate procedures in ways
that are reasonably related to maternal health
3. During the stage subsequent to viability, the st, in promoting its interest in human life,
may regulate/forbid abortion except where its necessary to save the life of the mother.
ii. The term physician can be restricted to licensed only physicians
2. Regulations of Medical Procedures
a. Doe v Bolton
i. The attending physicians best clinical judgment is sufficient to protect the states interest
in the health of the mother.
b. Akron I
i. Law: required that woman go to hospital in order to gain a 2nd trimester abortion.
ii. Rule: this law in invalid because it places a substantial burden on womans constitutionally
protected right to get an abortion.
ii. Period II: Between Roe and Casey
1. Spousal and Parental Consent Requirements
a. Danforth
i. Rule: Requiring consent from spouse is invalid because it places substantial burden on
womans constitutionally protected right for woman to get an abortion
1. There is a history in this country of spousal abuse could be reason for abortion
2. Woman has necessity to get an abortion wo having to go through the abusive spouse.
b. Bellotti v. Baird
i. Rule: requiring parental consent for a minor is okay, SO LONG AS there is a judicial bypass
that the minor could go through it the parent refused.
2. Abortion Funding Restrictions
a. Maher v. Roe
i. The fundamental right to have an abortion is merely the right to have an abortion without
additional burdens being imposed by the state.


ii. No liberty interest has been abridged by simple refusal to fund the womans abortion with
state funds
iii. Standard of review is rational basis
b. Harris
i. Rule: the government CAN refuse to fund even a medically necessary abortion.
c. Rust v. Sullivan
i. If the government chooses to fund childbirth, but not abortion counseling, it may do so. The
government has no constitutional duty to subsidize an activity merely because that activity
is constitutionally protected.
d. Webster
i. Rule: upheld ban on use of state facilities for abortions.
iii. Current Law
1. Planned Parenthood v. Casey - plurality
a. Law: 24 hour wait period; information from physician about nature of procedure: health risk of
abortion and childbirth and gestational age of child; spousal consent required for married women;
under 18 must have parental consent; facilities required to file report and state funded then
public information; information about women is always kept confidential.
b. Rule: Right to abortion is no longer reviewed under strict scrutiny, but rather the more deferential
undue burden standard
i. Test An undue burden exists, and a provision of law is invalid if its purpose or effect is
to place a substantial obstacle in the path of a woman seeking an abortion before the fetus
achieves viability.
c. Court rejects the trimester framework of Roe, and the state may take measures to ensure that the
womans choice is informed
i. Measures designed to advance this interest in potential life will not be invalid as long as
their purpose is to persuade the woman to choose childbirth over abortion.
d. The state may enact regulations to further the health or safety of a woman seeking an abortion.
e. A state may not prohibit any woman from making the ultimate decision to end her pregnancy
before viability
f. A state may regulate and even proscribe abortion except where it is necessary in appropriate
medical judgment for the preservation of the life or health of the mother.
g. Imposing a 24 hour waiting period on obtaining an abortion is not an undue burden
h. However, requiring spousal notification before having an abortion is an undue burden
2. Stemberg: Struck down law banning partial birth abortion as an undue burden
a. Where substantial medical authority agrees that banning a particular abortion procedure could
endanger womens health, the statute must include an exception for the health of the mother
iv. Gonzales v. Carhart
1. Facts: congress passed ban on partial birth abortions part of fetus is delivered then doctor performs
and overt act which kills fetus.
2. Rule: banning partial birth abortions is not substantial obstacle because there are other ways to
accomplish this.
3. Reasoning:
a. D & E: where fetus is extracted from uterus piece by piece.


b. Where government has rational basis to act, doesnt impose undue burden, state may regulate
certain procedure and substitute others in furtherance of legitimate interest in regulating medical
profession in order to promote respect for life
c. The precedent to this case was Stenberg required maternal safety exception to abortion limits
not required here
d. This case COULDNT have passed under Roe test is no longer strict scrutiny for abortion cases
because abortion is losing its status as a fundamental right.
4. Thomas concurrence
a. Roe and Casey should be overruled
5. Ginsberg dissent
a. Tolerates federal intervention to ban nationwide procedure even when necessary for health of
mother
b. The other method court talks about is less safe than partial birth abortion
c. Law doesnt save the fetus still dies
e. SDP and Marriage and Family Relationships
i. Marriage
1. Lovings v. VA
a. Struck down law banning interracial marriage
b. The right to marry is a fundamental liberty interest protected by substantive due process
2. Zablocki v. Redhail
a. Rule: invalidated WI law that said any resident having minor not in his custody and which
he is under obligation to pay support couldnt marry without court approval which
depended on proof that support obligation had been met and child was not likely to
become ward of state.
b. Reasoning:
i. Strict scrutiny test when it comes to marriage state has less intrusive means for
exacting compliance with support obligations.
ii. Test: law that imposes a substantial burden is unconstitutional
iii. Right of privacy = right to marry = fundamental right.
ii. Household Composition and Extended Family Relationships
1. Moore v. East Cleveland - plurality
a. Invalidated zoning ordinance limiting occupancy of dwelling to members of a single,
narrowly defined family
b. Family living arrangements are a fundamental liberty interest. When the government
intrudes on choices concerning family living arrangements, the court will apply strict
scrutiny

2. Belle Terro v. Borras
a. Rule: no privacy rights involved in family-oriented zoning restrictions excluding most
unrelated groups from a village
b. Reasoning:
i. Economic and social legislation
ii. Deference to legislation in most zoning cases
iii. Distinguished Moore because non-related rights.
3. Troxwel v. Granville


a. Rule: state court decision granting grandparents visitation rights to grandchildren over
objection of parent (fit mother) violated mothers substantive due process rights.
b. Reasoning
i. Due process protects parents rights to make decision for children
ii. General rule is best interest of child
iii. Exception to general rule: Moms right to raise child did overrule states regulation
about visitation.
iv. Parents decision about raising children = fundamental right. Even if it leads to
some bad results.
iii. Family Relationships and the Role of Tradition
1. Michael v. Gerald
a. Facts: CA law establishing presumption that child born to wife is legitimately child of
marriage. Rebuttable under limited circumstances. Gerald is biological father of married
couple and sought visitation.
b. Rule: Court upheld CA judgment that no visitation even though Gerald was biological
father of baby
c. Reasoning:
i. Gerald didnt have any constitutional rights violated
ii. Scalia footnote: Relevant history tradition was that specifically related adulterous
father not parents more generally
d. Brennan dissent
i. Concept of tradition is malleable and elusive
ii. Traditional reasons for unilateral family presumption is because no paternity tests
now we have those!
iii. Consensus/tradition/history/state practice: less liberty you will find. Liberty =
right not to conform. Right to be in minority.
f. SDP and Sexuality
i. Bowers v. Hardwick
1. Issue: whether constitutional confers right upon homosexuals to engage in sodomy? Very
narrow!
2. Rule: no fundamental right to sodomy, so no violation of constitution
3. Reasoning
a. When you define the right narrowly, you wont find it.
b. No relation to family, marriage or procreation
c. These types of laws have tradition in common law

ii. Lawrence v. TX
1. Facts: police went to private residence for weapons investigation and found 2 men and charged
them with deviate sexual intercourse
2. Rule: Bowers is overruled and gays have the right to liberty under due process, which give them
full right to engage in private conduct without intervention from state.
3. Reasoning:
a. Uses abortion case as precedent
b. Never says that gay sex is a fundamental right dont have to use strict scrutiny
c. Use rational basis opinion that says government has no business in this area.
d. History


i. Not aimed at homosexual conduct not conduct that is not procreative. Not enforced
against consenting private adults
1. New laws against gays because not enforceable against married.
iii. US v Windsor







g. SDP and Rights Over Death
i. Cruzan
1. A state can apply a clear and convincing evidence standard in proceedings where a guardian
seeks to continue nutrition and hydration of a person in a persistent vegetative state
2. There is no fundamental right to die, but there is a fundamental right to refuse medical
treatment
ii. Washington v. Glucksberg
1. Issue: can state allow physician assisted suicide when victim is competent to refuse medical
treatment
2. Rule: court defined right narrowly defined it to this exact issue above. State can refuse to
recognize physician assisted suicide as a fundamental right.
3. Reasoning
a. History/tradition/state practice
i. Laws against suicide and assisted suicide
b. Right to refuse medical treatment
i. Forcing medical treatment on someone is a battery
c. Decision doesnt come from personal autonomy
i. Must put this language in case because Casey said liberty includes controlling ones
existence
d. There is a right to refuse treatment, but physicians cannot help suicide.
iii. The Right to Die & EP
1. Vacco v. Quill
a. Rule: there is no violation of equal protection in allowing right to refuse medical
assistance and not right to assisted suicide.
b. Reasoning
i. Reason for death is the underlying pathology in right to refuse medical treatment
ii. In physician assisted suicide underlying reason for death is physician action.
c. Concurrences
i. Right case may make court recognize the right





















II. PROCEDURAL DUE PROCESS AND THE RIGHT TO A HEARING
a. Overview
i. Government CAN take liberty and property away, but must allow due process.
ii. SOR
1. Do we have a liberty or property interest?
a. Legitimate claim of entitlement OR mere unilateral expectation
b. As understood by some sort of understanding such as state law or contract
2. If so, what process (notice/hearing) is due?
b. Defining Property and Liberty
i. Property
1. Traditional view (Rights/Privileges distinction)
a. If there is a right, due process is implicated and one must have notice and a hearing before
the right is abridged.
b. If there is a privilege, you have no due process rights
2. Current view


a. Goldberg v. Kelly
i. Rule: P is entitled to welfare, so must give her hearing before taking benefit away.
1. Statutory entitlements are property
b. Perry v. Sinderman
i. Rule: P proved de facto tenure system so he was entitled to have a hearing when
tenure denied
1. This is an exception to the general rule. Generally, non-tenured professors have
no right to firing hearing
2. Here, the rule was different because the expectation of the employee changed.
c. Board of Regents v Roth
i. Rule: non-tenured professor has no entitled to be tenured, so no hearing required
when P fired
ii. Property interests are not created by the constitution. They stem from
independent sources or understandings such as state law
1. A mere unilateral expectation is not enough.
ii. Liberty
1. Paul v. Davis - Stigmatization
a. Rule: reputation alone is not a liberty interest
b. Reasoning:
i. Must be reputation coupled with something more like loss of your job.
c. What Process Is Due?
i. Matthews v. Eldridge
1. Rule: balancing test to determine if procedure meets 14th amendment requirements.
a. Private interest
b. Risk of erroneous deprivation of interest and procedure used and value of safeguards
c. Government interest including fiscal burdens and substitute procedure requirement.
ii. Stigmatization
1. If found, like you did not get job bc of it, since you dont have property interest in non-existent
job, you get a clear your name hearing
EQUAL PROTECTION
I. OVERVIEW
a. You cant do something to me differently than others who are similarly situated
b. Analyzing an equal protection question:
i. Is there state action?
ii. Is there a classification? Identify the classes
iii. Classify the classification
1. Is it a Suspect class, Semi-suspect, Ordinary
a. If the classification is not discriminatory on its face, look to see if is it De Jure v. De Facto
Discrimination or if it is being administrated discriminatorily
iv. Apply the proper standard of review
c. Equal Protection Clause:
i. No state shall deny to any person the equal protection of its laws
d. All laws classify. The problem of equal protection arises when the classification is unrelated to merit


i. Equal protection is designed to apply unequal laws in an equal fashion
ii. Equal protection can be summed up by the idea of democracy and distrust
1. To the extent that we trust the democratic output, the standard of review is more lenient
2. To the extent that we distrust democratic output, the standard of review is strict
e. Four Types of Classifications
i. Suspect class
1. Receives Strict Scrutiny
ii. Semi-Suspect Class
1. Receives Intermediate Scrutiny
iii. Classifications that abridge fundamental rights
1. Ex: Voting and right to travel
2. Reviewed under strict scrutiny
iv. Ordinary Classifications
1. Anything not within the first 3 categories is reviewed under rational basis test
f. Levels of Scrutiny
i. Rational Basis
1. Legislative classifications must be rationally related to legitimate government objective
2. Applies when there is an equal protection challenge by a non-suspect class
3. Challenger must show either that the law:
a. Does not rationally advance a legitimate state interest, OR
b. The objective itself is not legitimate
4. Statute can be over or under inclusive
a. Court will look for any conceivable legitimate purpose to uphold the law


ii. Strict Scrutiny
1. Triggered if government uses suspect criteria or substantially impinges a constitutionally
fundamental right (SDP)
a. Government must prove that the law is necessary to achieve a compelling
governmental goal
When the Court wants to apply strict scrutiny with rigor, it will say that the action
must be necessary to a compelling governmental goal.
There is no other way the state could achieve the goal
When the Court wants to make the strict scrutiny more lax, you will see the words
narrowly tailored to serve the compelling interest.
Gives court more wobble room to pass Strict scrutiny
2. Requires a perfect fit (cant be over or under inclusive)
3. Purpose considered must be the true or articulated purpose (Court wont look for conceivable
purpose)
iii. Intermediate Scrutiny
1. Applies to quasi-suspect classes
2. Statute is presumptively void (like strict scrutiny)
a. Government has burden of proving classification is


substantially related to
important state interest
3. Requires a pretty good fit (cant be too over or under inclusive)
4. Court only considers true purpose
5. In most cases using intermediate scrutiny, the court will look to the indicia of suspectness and
the indicia of fundamentality when doing their analysis
g. Two Parts of Equal Protection Analysis
i. Frontloaded Part of Analysis
(What is the Trait?)
1. The court will determine whether they are dealing with a suspect class.
a. Indicia of Suspectness (Carolene Products)
To determine if a classification is suspect or not, we should look at:
Is there an insular or discrete minority
Insular: Does the group tend to be isolated in enclaves
Discrete: Can you tell the group is a minority by looking at them
Is the classification unrelated to merit?
Is the characteristic immutable?
Is this a historical accident of birth?
Does the group have a history of political powerlessness?




ii. Backloaded Part of analysis (What is the Mischief?)
1. Note: Mischief = Purpose: (1) articulated; (2) true; (3) hypothetical
2. Court applies appropriate standard of review
a. If there is a suspect class, court will apply strict scrutiny.
b. If there is no suspect class, court applies rational basis test
3. When the court applies the rational basis test, they will determine if the classification is
reasonably related enough to avoid being an Equal Protection violation
a. If the classification and the law coincide completely with the class of those similarly
situationed with respect to the purpose of the law (perfectly reasonable)
b. No member of the class defined in the law is tainted with the mischief at which the law
aims (perfectly unreasonable)
c. All who are included in the class are tainted with the mischief, but there are others also
tainted whom the classification does not include (underinclusive)
d. Classification imposes a burden on a wider range of individuals than are included in the
class of those tainted with the mischief at which the law aims (overinclusive)
e. Statute is drawn to be both underinclusive and overinclusive
If statute is underinclusive, overinclusive or both, court must decide if the
connection is reasonable enough to sustain the statute under equal protection
4. Strict scrutiny requires a perfect fit. Cannot be under or over inclusive.
5. When doing backloaded analysis, consider the following ratchets:\


a. Brennan
Broad definition of what constitutes fundamental right
Rights may change over time, and we can look to contemporary views
Recognizes more fundamental rights and apply strict scrutiny to strike down statute
b. Rehnquist/Scalia SDP analysis
Glucksberg:
Due Process Clause protects fundamental rights/liberties which are objectively
deeply rooted in nations history and tradition.
There must be a careful description of the asserted liberty interest (narrow
levels of generality)
Look to our nations history, legal traditions and practices
If there is no support under the narrow history or tradition, there is not a
fundamental liberty interest and rational basis is triggered
Allows for higher deference to legislature
6. Arrows opinion regarding backloaded analysis:
a. Strict scrutiny should be strict in theory and fatal in fact
b. Rationality review should involve minimal scrutiny in theory and virtually none in fact
Arrow believes that if the court strikes down a law when applying the rational
basis test, they are acting like a super-legislature. The under-inclusive/over-
inclusive analysis should not be done


II. RATIONAL BASIS TEST
a. Economic Regulations
i. Minimum rational review of economic regulation
1. Overview: works just like Lee Optical. In normal economic regulation, the court affords almost
no review of laws.
ii. Railway Express Agency v. NY
1. Facts: NYC had ordinance that said no advertising on the sides of cars unless they were owned
by the business that was advertising.
2. Even if a statute is underinclusive, it can still satisfy the rational basis test
iii. Williamson v. Lee Optical
1. Reform may take 1 step at a time addressing itself to phase of problem most acute to legislative
mind
a. Piecemeal legislation is okay
iv. New Orleans v. Duke
1. Facts: law kicks food vendors in the French Quarters out unless they have been there 8+ years.
2. Rule: the law is upheld under rational basis.
v. NYC v. Beazer
1. Law: no methadone users can work to drive trains
2. Rule: this is upheld under rational basis as rationally related to legitimate government interest
in preventing accidents.
vi. Allegheny Coal v. Webster


1. Facts: WV property tax was based on recent selling price. If you hadnt bought home recently,
then your property tax was grossly disproportionate.
2. Rule: this failed rational basis test because this form of property tax violated its own constitute
3. Reasoning
a. CA law that was about the same was upheld because it didnt violate CA constitution.
b. US RR Retirement v. Fritz
i. Facts: law allowed dual benefits for some people. Workers who hadnt yet retired but could have
gotten social security benefits and retirement could only get those benefits if 1) worked on RR since
1974, 2) current connection with RR industry, 3) 25 years of RR service.
ii. Rule: if there is any plausible connection between law and legitimate government interest, then the
analysis stops there.

III. SUSPECT CLASSIFICATIONS: RACE
a. Racial Discrimination
i. Equal protection standard: if you are similar situated, you get the same protection under the law. If
you are not similarly situated, you dont.
b. Racial Segregation
i. Strauder v WV
1. Law: no blacks can serve on juries. Black man was convicted of murder under this system
2. Rule: unconstitutional because black man was not judged by jury of his peers
ii. Plessey v. Ferguson
1. Law: separate but equal is okay
c. Facial Discrimination Against Racial Minorities-Strict Scrutiny
i. Korematsu
1. Facts; during WWII, certain limitations were placed on Japanese Americans by military orders.
D convicted of violating restriction.
2. Rule: court upholds intentional segregation based on race by military for public necessity
during wartime.
d. Segregation in Public Education
i. Brown v. Board of Education [Brown I] no more segregation!
1. Held: Law segregating schools based on race is an Equal Protection violation
2. Separate but equal is inherently unequal, therefore segregation violates EP
a. Segregation creates a feeling of inferiority in minority groups and impedes learning
because of the psychological effect on students
ii. Modern Law
1. In order for violation to be found, there must be intentional segregation by race that forms a
dual school system
a. Dual school system alone is not unconstitutional.
2. Bolling v. Sharpe
a. the concept of equal protection is incorporated in the 5
th
amendment, and therefore
segregated schools in DC are also unconstitutional
iii. Implementing Brown I
1. Brown II
a. Rule: good faith test to determine if school boards are doing enough to comply with Brown


b. Reasoning
School board is in charge of applying brown is subject to review of District Court.
2. Eliminating the vestiges of de jure segregation
a. Green v. County School Board
Facts: school board attempted to allow parents/children to decide where children
went to school. There was still a dual school system in effect.
Rule: it is for the school board to fix the Brown problems not the parents/children of
the school
Cant bypass the requirements of Brown by placing burden on parents/children
to apply Brown
b. Swan v. Charlotte
Facts: when Green was decided, most rural areas were desegregated. Urban areas
werent because geographical school zoning left segregation because living was
segregated as well.
Rule: bussing can be required as tool to desegregate schools unless the health of het
children is adversely affected by the distance or the education of the children unduly
suffers from the distance of the bussing.
Neither school nor district court is required to make annual adjustments to
racial composition of schools once desegregation has been achieved. V
The evil now is intentional segregation
3. Desegregation Outside the South
a. Keyes v. School District
Rule: finding of maintaining intentional discrimination on part of school district
affecting substantial proportion of students violates Brown
This decision makes it much easier to find segregation problems in North.
Makes it violation of Brown to maintain system even if it was not created as
segregated system.
4. Limiting Remedies
a. Milliken
Facts: couldnt achieve desegregation of urban schools because there were no
whites to place in school. Town responded by passing rezoning for school districts
that affect 53 total school districts.
Rule: no inter-district remedy if no inter-district violation. Only intra-district
remedy is available.
b. MO v. Jenkins
Rule: court cant order tax increase directly on school district to pay for
desegregation
5. Terminating Long-Standing Decrees
a. OK v. Dowell
Facts: after Brown, OK placed system that would lead to desegregation. System
worked. Years later, they cancelled system. Now, they want to revive system that
would continue to ensure desegregation.
Rule: jurisdiction of federal court over school system comes to an end when
reasonable times passes and unitary school system is found successful


The integration remedy was meant to be temporary, not continuing obligation
on school systems
OKC put in provision that was successful, no duty to continue to annually check
and make sure numbers are equal.
e. Eliminating Other Vestiges of Segregation
i. Interracial Cohabilitation
1. McLaughlin v Florida
a. One cannot remove a child from his mothers custody just because she begins dating
interracially. (EP violation)
2. Lovings v. VA
a. Facts: ban on miscegenation in VA
b. Rule: we will look behind statute to find if there is a discriminatory purpose
State argument: we treat both races equally under this law so no equal protection
violation
Protects only whites
Other mixed races can marry
This is about white supremacy not purity in race
Badge of inferiority placed on blacks.
Racial classifications will get strict scrutiny
White supremacy is not a compelling government interest.
3. Palmore v. Sidoti
a. Facts: parents divorced and mom got custody of child, until she married black man then
child given to father.
b. Issue; can best interest of the child be considered when deciding on custody of child in
mixed race home?
c. Rule: No, private biases have no effect in law.
d. Reasoning
Compelling government interest: to protect child from private biases of others.
Private biases have no place in court system.
ii. Permissible Uses of Racial Criteria
1. Johnson v. CA
a. Facts: prisons were segregated for safety of prisoners and guards because of gang violence
which occurs down race lines
b. Rule: no segregation in prison system fails strict scrutiny
c. Reasoning
State: dont use strict scrutiny
We are only doing this until we can figure out what to do about this problem
Court: we will apply strict scrutiny
CA: okay, we pass because we are doing this for safety of all
Court didnt actually integrate: you can consider past affiliations when
determination housing decisions
Consider gang affiliations and then you can still segregate
d. Dissent
You lose rights when you go to prison
Defer to prison wardens knowledge in this instances


f. The Role of Intent: Racially Discriminatory Purpose and Effect
i. Discriminatory Application of Facially Neutral Laws
1. Yick wo v Hopkins
a. Facts: CA said you needed permit in order to operate laundry in wooden building. All
Chinese laundry merchants were denied permits, while all whites got one.
b. Rule: though law is fair on face, if administered with evil eye and unequal hand, so as
practically make unjust and illegal discrimination this is a denial of equal protection and is
unconstitutional
c. Reasoning
Must show PURPOSE OF LAW was to discriminate
Can use circumstantial evidence
Then must show DISCRIMINATORY EFFECT
ii. Discriminatory Purpose Underlying Facially Neutral Laws
1. Gomillion v. Lightfoot
a. Facts: voting districts were rezoned in order to prevent blacks from getting to vote.
b. Rule: this violated equal protection
This was a super obvious attempt to disenfranchise black voters.
2. Griffin
a. Facts: to desegregate schools, town closed all public schools and gave white students
vouchers for private schools
b. Rule: this violates equal protection
c. Reasoning
Education is necessary for students
This is obviously an attempt to avoid Brown.
iii. Facially Neutral Laws with Discriminatory Effect
1. Washington v. Davis VERY IMPORTANT
a. Facts: police were admitted a test they had to pass in order to be a cop. Whites passed at
much higher rate than blacks
b. Discriminatory impact on the basis of race without an intent to discriminate on the
basis of race will not be treated as a racial classification for purposes of equal
protection and will therefore only trigger the rational basis test.
However, if the challenging party can show racially discriminatory intent, in
addition to disparate impact, then it will be treated as a racial classification for
purposes of equal protection and will trigger strict scrutiny.
g. Affirmative Action: Race
i. Regents CA v. Bakke
1. Held that a medical school which reserved 16 out of 100 places in its entering class for
minorities was an equal protection violation
a. Any time a statute classifies on the basis of race, even if the discrimination is benign
discrimination against whites, it will be reviewed under strict scrutiny.
b. Two compelling governmental goals allowing racial classifications:
Remedying the past discrimination of this particular governmental institution
Arrow: In order to win a racial discrimination suit against an affirmative action
program brought by a white, you have to be able to prove that you could have
successfully lost a racial discrimination suit brought by a non-white.


Must be actual evidence of past discrimination by the institution
Obtaining an ethnically diverse student body leading to a robust exchange of ideas
Unique to educational setting
A flat quota of minorities is not narrowly tailored enough to survive strict
scrutiny
A school can consider race or ethnic background as a plus factor in the
admissions process, but it cannot isolate them completely from all other
admissions candidates. Must be an individual determination
2. Wygant v. Jackson
a. Facts: layoff preferences were given to minorities regardless of tenure as a result of K with
labor union
b. Rule: strict scrutiny is applied to governmental race classifications this law is not
compelling enough or narrowly tailored to ends.
School argument: role model theory, students need minority role models not good
enough!
Loss of job is too burdensome dont burden teacher because of inadequate interest
3. Richmond v. Croson
a. Held plan awarding preference to government contracts to minorities unconstitutional
Strict scrutiny applies to any governmental action based on race, regardless of who
is doing the discriminating
The only compelling governmental interest that can be asserted in this context is
to remedy past governmental discrimination of the particular governmental unit
involved.
There must be actual proof of prior purposeful discrimination against the race
by this particular governmental unit.
Cannot merely be general discrimination in the construction industry.
Must be both general discrimination in the industry and in this geographic
location.
4. Adarand Constructino v. Pena
a. Rule: federal government affirmative action is subject to strict scrutiny just like state.
5. Grutter v. Bollinger
a. Facts: program at MI law school that promoted diversity as stated in mission statement.
No quota system admitted critical mass of minorities for unique contribution.
b. Rule: this was upheld because there was individualized review, no quota system, diversity
is a compelling interest, and court said it survived strict scrutiny
c. Reasoning:
Strict scrutiny minus: before strict scrutiny had ALWAYS meant law was
unconstitutional. Now laws are passing strict scrutiny
Court said they were giving discretion to university because they are uniquely
equipped for making educational decisions.
They are uniquely qualified to make decisions about that school
Narrowly tailoring doesnt require exhausting all race neutral means just GOOD
FAITH consideration of race neutral means we will take universitys word for
it.
Easy to pass!
6. Gratz v. Bollinger


a. Facts: MI undergraduate case. 20/100 points were added to admission score if minority.
Other cool talents got points too, but not the same as minority.
b. Rule: This plan fails because there was no individualized consideration for applicants
just assigned point value without considering facts other than race.
c. Reasoning:
School argued: we cant read all of these applications
Administrative inconvenience will always fail when constitutional violation.
7. Fisher v University of Texas
a. Must show that its narrowly tailored
b. Evaluated as an individual
c. Ct determines that its necessary
d. Carefully considered
e. Not required to consider every possible alternative
f. Not defer to
ii. Racial Diversity in K-12 Public Education
1. Education v. hiring
a. Hiring: strongest strict scrutiny
2. Courts rationale
a. Equal protection protects people NOT groups!
3. Parents involved v. Settle Schools
a. Facts:
Seattle plan: give students/parents the choice of where kids go to school. If their 1st
choice is full, then school chosen based on race.
Jefferson plan: did operate segregated school system at one time, been fixed for a
long time. 15-50% black at each school.
b. Rule: These ends are not near narrowly tailored enough to pass strict scrutiny test that
applies when race is basis of classification.
Because made decision solely on race
IV. SUSPECT CLASSIFICATIONS: ALIENAGE
a. Current Alienage Test:
i. Alienage is a suspect classification triggering strict scrutiny, unless the political function exception
applies, in which case it isnt a suspect class and is subject to the rational basis test
b. General Rule
i. Graham v. Richardson: States cannot deny welfare benefits to aliens
1. Aliens are a suspect class and classifications based on alienage receive strict scrutiny
c. The Political Function Exception:
i. Under the Political function exception, the state may exclude non-citizens from
1. elected government positions,
2. positions related to the democratic process,
3. Positions involving a significant policymaking function,
4. Positions requiring exercise of important discretionary governmental powers over citizens
ii. Foley v. Connellie: Held that a state could bar employment of aliens as state troopers
1. Created political function exception
2. Political function exists when dealing with matters firmly within a states constitutional
prerogatives


iii. Ambach: Applied political function test to hold that a state can refuse to hire aliens as school teachers
who are eligible for citizenship but refuse to seek naturalization
iv. Bernal: Political function exception does not allow Texas to bar aliens from becoming notaries
d. Federal Restrictions on Aliens
i. Public Employment
1. Hampton: Held a Civil service Commission regulation barring resident aliens from employment
in the federal civil service is unconstitutional
ii. Medical Benefits
1. Mathews: Held Congress may condition an aliens Medicaid eligibility on admission for
permanent residence and continuous US residence for 5 years
a. Where Congress is legislating in the context of alienage, it is reviewed under an almost
non-existent standard of review

V. ORDINARY CLASSIFICATIONS: AGE & POVERTY & DISABILITY
a. Test: Rational basis with a bite the court must say they are applying rational basis because they dont
want to make this a suspect class, but they still want to test these laws with higher scrutiny.
b. Cleburne v Cleburne Disability
i. Court invalidated, under rational basis, a law requiring a permit for home for mentally retarded
adults but no permit for other group homes
1. The mentally retarded are not a suspect class, and legislation that distinguishes between the
mentally retarded and others must be rationally related to a legitimate governmental purpose
2. Reasons why this statute failed rational basis test:
a. Laws based solely on communitys negative attitudes/fear about the group, not a
legitimate purpose
requirement cant be based on an irrational prejudice or fear
purpose of protecting the retarded people from taunting school kids was
underinclusive because there are retarded students at school
c. Ma Board of Retire v. Murgia Age
i. Facts: MA police forced to retire at age 50
ii. Rule: Law is upheld because court refused to find them a suspect group and there was more interest
than just singling out group for discrimination; No history of discrimination on basis of age
d. James v Valtierra Poverty
i. Wealth is not a suspect class, and government action which classifies based on wealth is reviewed
under the rational basis test
e. No Fundamental Interest in Food, Shelter, Education
i. Dandridge v Williams Welfare Benefits
1. Rule: Blanket welfare protection regardless of family size was okay
a. No fundamental right to food
ii. Lindsey v Normet Housing
1. Rule: law that allowed landlord to kick out people who dont pay rent is okay
a. You dont have fundamental right to shelter.
iii. Education
1. San Antonia v. Rodriguez;
a. Facts: schools in TX were funded by property taxes so some were in much better shape
than others. Some had much more money/pupil than others.


b. Rule: since there was no absolute deprivation of education and the schools met the
minimum level of education, this wasnt a violation of equal protection.
Education is not a fundamental right so rational basis test for this law
Deference goes to sates because courts cant judge the quality of education.
Even though there were poor neighborhoods, those were usually the industrial
neighborhoods and industries are way taxed to help offset
2. Plyler v. Doe
a. Facts: TX was denying children of indigents education unless they paid full tuition.
b. Rule: this was a complete deprivation education and it was not allowed.
Children are innocent victims because they didnt chose for their parents to break
the law and come to US
Denying US violates goal of individual advancement
f. Exception for Classifications Based on Animus
i. US Dept. of Agriculture v Moreno
1. Facts: law limited food stamps to households as defined by related people living together.
2. Rule: this is singling out a single group (hippies) for exclusion of food stamps; therefore, it fails
rational basis

VI. SEMI-SUSPECT CLASSIFICTIONS: SEX
a. Overview
i. Note: We dont care about framers intent, framers didnt care about women
ii. Immutable trait: progress toward this thinking. If you are classified based on a trait that you are
born with, then strict scrutiny should be applied havent gotten here yet.
iii. Test: Intermediate Scrutiny
1. Exceedingly persuasive justification
2. Important government interest
3. Employed discriminatory means substantially related to achievement of objectives
4. Justification must be genuine
5. No overbroad stereotypical generalizations.
b. Sex Discrimination
i. Heightened Scrutiny Under Rationality Review
1. Reed v Reed
a. Indicia of Suspectness: discrete; insular; minority; historical accident of birth; immutable
characteristic; unrelated to merit; history of political powerless ness
ii. The Failure to Adopt Strict Scrutiny
1. Fontiero v Richardson
a. Facts: men returning from war get automatic dependent spousal benefits. Women
applying for same benefits had to prove that spouses were dependent upon them.
b. Rule: because men and women treated differently, intermediate scrutiny is applied.

iii. Development of Intermediate Scrutiny

1. Craig v. Boren
a. Held law prohibiting sale of beer to males under 21 and Females under 18 to be an equal
protection violation


Classifications by gender must serve important governmental objectives and must
be substantially related to achievement of those objectives (Intermediate Scrutiny)
2. Miss. Univ. for Women v. Hogan
a. Facts: A man was denied admission to an all-female nursing school and complains. He
could have gone to other nursing schools, but this one was closest to him.
b. Rule: In order for gender classifications to prevail, there must be exceedingly persuasive
justification for the law, and no archaic & overbroad generalizations of women
3. US v. Virginia Leading case
a. Held that maintaining an all-male military school without an equivalent female alternative
is an equal protection violation
Current Rule
For a gender classification to comply with equal protection, the state must
provide an exceedingly persuasive justification
The challenged classification must serve important governmental
objectives and the discriminatory means employed must be substantially
related to those objectives.
i. The justification must be genuine, not hypothesized or invented post
hoc in response to litigation, and it must not rely on overbroad
generalizations about the different talents, capacities or preferences
of males and females
Court held that it is not enough that most women wouldnt want this kind of
education
Remedy of providing an alternative for women might be alright if really
comparable, but the alternative provided here was not
b. Arrow says this case provides us with a tighter intermediate scrutiny test. Better than
mere intermediate scrutiny because it gives us some guidance and is more of a
frontloaded analysis

c. Sex Equality and Sex Differences
i. Geduldig v Aliello Pregnancy Classifications
1. Absent a showing that such classifications are mere pretexts designed to effect invidious
discrimination against one sex, classifications between pregnant persons and non-pregnant
persons are to be reviewed under the rational basis test.
ii. Michael M Gender Specific Statutory Rape Laws
1. Rule: Court upheld law that only punished men for statutory rape and not women.
a. The majority reasoning was because men and women are not similarly situated which
makes this equal protection law fail women can get pregnant and men cant
b. Note: now this would probably fail because it could be seen as perpetuating old
stereotypes that women should be chaste.
iii. Rostker v Goldberg Military Draft Exclusion
1. Rule: rejected equal protection claim that military selective service act for president was
drafting men and not women
a. Congress has great deference over this area
b. Since women were excluded from combat, there is no reason to draft them.
iv. Discrimination Against Unmarried Fathers


1. Nguyen: under intermediate scrutiny, Court upheld law requiring more proof of parenthood for
US citizen fathers than US citizen mothers to confer citizenship on child
a. 2 purposes that were sufficiently important
ensuring that the child is actually the persons child
easier for a mother to prove than the father because the mothers must be at
the birth while the father doesnt have to
giving parent opportunity to have relationship with child
naturally happens during birth for moms, but not automatic for dads


d. The Role of Intent: Sex-Based Purpose and Effect
i. Personnel Administrator v Feeney
1. Where a statute is facially gender neutral, but there is a substantial disparate impact, then,
unless you can show intent to discriminate on the basis of gender, it wont be treated as a
gender based classification and it will only get the rational basis test.
a. If you can show intent to discriminate based on gender, in addition to disparate impact,
then. It will be treated as a gender based classification and will trigger the intermediate
standard with the exceedingly persuasive justification asterisk
e. Sexual Orientation
i. Romer v. Evans
1. Court invalidated, under rational basis, state constitutional provision that forbid creation of
laws designed to protect to gays/lesbians
a. Homosexuals are not a suspect class and classifications based on sexual orientation are
reviewed under the rational basis test
b. Reasons that this statute failed the rational basis test
legislation that imposes a broad and undifferentiating disability on a group of
people is invalid
Statute is too narrow because based on one single trait
Statute is too broad because denies all protection based on that trait
Law is too broad compared to the stated purpose
Stated purpose is to allow employers and landlords to choose not to hire/rent
to people whose lifestyles they object to
breadth of amendment too broad, not connected to this purpose
Amendment seems inexplicable by anything other than animus toward the class it
effects




















STATE ACTION
I. CONGRESSS CIVIL RIGHTS ENFORCEMENT POWERS
a. Amendments
i. The 13
th
, 14
th
and 15
th
amendments
1. 13
th
amendment:
a. prohibits slavery for everybody
b. No state action requirement for Congress to legislate under the 13
th
amendment
2. 14
th
amendment: Equal Protection and Due Process
a. Congress can legislate against state action that violates either due process or equal
protection.
b. State action is a pre-requisite
3. 15
th
amendment: Black Voting Rights
a. Congress has the right to enforce the right of blacks to vote by appropriate legislation
b. State action is a pre-requisite for Congress to legislate under the 15
th
amendment
ii. In a due process or equal protection claim, on the exam, we must discuss if something is state action
or not first.
II. DOCTRINAL DEVELOPMENT
a. Requirements of State Action
i. Overview: In order to implicate Equal Protection power, a state must violate a private citizen rights.
The Equal Protection clause is only valid against states not private parties. These cases are
attempting to charge private parties with violating Equal Protection. The validity of these suits turn
on the private partys relationship to the state.
b. Civil Rights Cases
i. Court struck down civil rights act of 1875 because Congress had no authority to regulate private
discrimination.
1. State action, for purposes of the 14
th
and 15
th
amendments, consists of laws, judicial, or
executive proceedings
ii. What constitutes state action under these amendments?
1. Two methods for determining if State action exists:
a. Public Function
b. Significant State Involvement
i. State is inextricably tangled with private person (symbiotic relationship)
1. Ex: Burton
ii. State has Created, Coerced, Supported or Encouraged Private Discrimination
1. Ex: Shelley, Reitman
c. Is There State Action Present?


i. TEST: When private actors will be subject to constitutional guarantees ordinary applicable to
government
1. Whether the private actor is sufficiently entangled with or sufficiently like the state to consider
the private conduct state action.
2. Whether the applicability of constitutional guarantees to private actor unduly impinges on the
private interest in being free to behave in ways constitutionally barred to the state.
ii. Public function as basis for state action: Private enterprises that act in way that is
TRADITIONALLY EXCLUSIVELY PERFORMED BY STATES
1. Marsh v. AL
a. Jehovahs Witness was distributing religious materials on private property it was a
company town. The JW was convicted under state criminal trespass law.
b. Rule: this conviction as unconstitutional because even though this was private property
because private party was performing a public function.
2. Shopping Center Cases
a. Rule: Private shopping center was not operating like a public down town even though it
had public sidewalks.
3. Evans v. Newton
a. Held a privately created park is a public function (state action), and therefore cannot
exclude on the basis of race
i. Park is municipal in character, like fire or police department. Traditionally serves
the community through allowing mass recreation.
iii. Significant State Involvement
1. Shelley v. Kramer (1948)
a. When judges command private persons to take specific actions that would violate the
constitution if done by the state, state action will be present in the resulting harm to
constitutionally recognized rights
i. A restrictive covenant standing alone is not a violation of any rights under the 14
th
.
So long as there is voluntary adherence, the state is not involved
ii. Under the significant state involvement test, the court will ask who is the
impetus for the discrimination? The state or the individual?
2. Exception to Shelley: Reverters
a. Evans v. Anbney (Year)
i. Facts: when the park donated by the senator for whites only couldnt operate as
white only, it reverted back to his heirs.
ii. Rule: this reversion was ok bc both whites and blacks lost he park no state action.
3. Significant State Involvement Symbiotic Entaglement
a. Nexus Approach sufficient points of contact between the private actor and the state to
justify imposing constitutional restrains on private actors or commanding state
disentanglement.
b. Burton v. Wilmington Parking Authority (1961)
i. Held that a restaurant that refused to serve black people in a state owned parking
garage was state action
1. Private conduct abridging rights does not fall within equal protection unless to
some significant extent the state has become involved.
a. Court looks at facts and circumstances to determine whether the state
has become significantly involved in the discrimination


i. Factors Considered by the court:
ii. Public character of the building
iii. Joint operation (w/ the state and the private entity)
iv. Mutual financial benefits
c. State involvement through licensing
i. Moose Lodge v. Irvis (1972)
1. A private club declined service to a black person held not to be significant state
involvement
a. Discrimination by a private entity is not automatically violative of equal
protection just because such entity receives a benefit from the state or is
subject to state regulation
i. To find unconstitutional SA in situations where the impetus is
private, st must significantly involve itself w invidious discrimination
4. State Encouragement of Private Discrimination
a. Jackson v. Metro Edison (1974)
i. Held that a privately owned and operated utility company was not involved in state
action
1. The mere fact that a business is subject to state regulation does not by itself
convert its action into that of the state for purposes of the 14
th
. Nor does the
fact that the regulation is extensive and detailed, as in the case of most public
utilities, make the utilitys action a state action.
d. Decisions Finding No State Action Present
i. Insufficiency of State Acquiescence
1. Flag Bros. v. Brooks (1978)
a. Warehouseman selling goods entrusted him to satisfy a UCC warehouse lien isnt st action
i. Reinforced that it must be traditionally exclusively reserved to the state
ii. Insufficiency of State Regulation or Subsidies
1. Blum v. Yaretsky (1982)
a. Facts: doctor decided to move patients to a cheaper facility which meant that Ps received
less Medicaid. P sued for violation of due process.
b. Rule: this was not a SA bc the transfer was the decision of a private doctor not the state
2. Rendell-Baker v. Kohn (1982)
a. Facts: small private school received most of its funding from public school funds fired P
employee. P claimed violation of due process rights.
b. Rule: this was not a state action because the school is no less private then a company
whose business depended primarily on government contractors
i. Acts of public K don mot become state actions by their encouragement by state.
iii. Insufficiency of State Inaction
1. DeShaney v. Winnebago County Social Services (1989)
a. Facts: state didnt intervene when it knew childs father abused him and mother and child
brought due process claim.
b. Rule: state is not required to protect citizens from private citizens.
c. Reasoning:
i. Purpose of due process clause was to protect people from the state, not from private
actors.


ii. Duty may arise from special relationship when person is in state custody, etc. but
not just from being citizen
e. Decisions Finding State Action to be Present
i. Lugar v. Edmondson (1982)
1. Facts: creditor attached property to write without notice or hearing.
2. Rule: this was a state action because the judge ordered the write and sheriff actually took
property.
3. Reasoning:
a. Private partys joint participation with state officials in seizure of disputed property is
sufficient to characterize the party as a state actor
b. Distinguished from Flagg Brothers because here the issuance and acceptance of the write
was undertaken by state officials.
ii. Edmondson v. Leesville Concrete (1991)
1. Facts: Private litigant discriminated by using preemptory challenge on jurors in a civil case.
2. Rule: this was a state action because the judge not the parties strike the jurors.
3. Reasoning:
a. State law allows these challenges.































IMPLEMENTING POWERS

I. OVERVIEW
a. To what extent may Congress provide criminal and civil sanctions against private interferences with
constitutional rights?
i. What persons are covered by these provisions?
ii. What rights are protected by them?
iii. What is the power of Congress to safeguard 14
th
Amendment rights against interferences by
seemingly private actors?
b. Civil Rights Statutes fall into 2 categories
i. Reaches only action under color of law
ii. Reaches private conspiracies, without any state nexus requirement on the face of the statutes.
c. The Implementing Powers
i. consist of 2 of the 13
th
, 5 of the 14
th
and 2 of the 15
th
amendments
ii. These are additional sources of Congressional power
II. POST-CIVIL WAR STATUTES
a. Current Civil Rights Statutes
i. 18 U.S.C. 242+1983
1. 242: Conspiracy to deprive someone of constitutional rights under color of law
a. Premise 1: Assuming that action under color of law is more or less the same as state
action, 242 requires that there be, more or less, state action.
b. Premise 2: Under the civil rights cases of 1883, 5 of the 14
th
only gives Congress the
power to punish state action. (traditional view of 5)
i. Under the two above premises, there is no constitutional problem with 5
2. 1983 (civil component of 242) clearly constitutional for above reasons
ii. 43 U.S.C. 1981 and 1982
1. 1981: All persons have equal access to enforce contracts, sue, have equal benefit of laws as
enjoyed by whites
2. 1982: All citizens have the same right to property as white citizens have
a. These statutes have been upheld under the 13
th
amendment as badges or incidents of
slavery by Jones. Since no state action is required under the 13
th
amendment, there is no
constitutional problem, according to Arrow.
b. Some (Spiro) would argue that state action is required under 1982 because of use of the
word right, but the court has never held this
iii. 18 USC 241 + 1985
1. 241: If 2 or more persons conspire to injure oppress or threaten a person in the free exercise
of his constitutional rights he will be punished
2. 1985(3): Civil Component of 241
3. Arrow doesnt see how these could be constitutional under 2 of the 13
th
, 5 of the 14
th
or 2 of
the 15
th
amendments, but following case law has held these constitutional


III. CONGRESSIONAL POWER TO REACH PRIVATE INTERFERENCE OF CONSTITUTIONAL RIGHTS


a. Congressional Power and Private Actors
i. Enforcement power of congress (section 5 of the 14th amendment and section 2 of 13th and 15th
amendments
1. Who can congress reach?
ii. 2 main questions
1. Can congress pass broad law reaching states and private individuals?
2. Can congress go ahead and act without prior judicial determination that something has violated
the 14th?
iii. Sources of constitutional rights
1. Due process and equal protection under the 14th and 15th applicable only to state action
2. 13th amendment not limited to state action , but limited to racial discrimination
3. Other constitutional rights, other than post-civil war amendments that are not subject to state
action implicit in constitution.
iv. US v. Guest (1966)
1. Facts: civil rights workers were murdered. D was acquitted in state court. Charges were
brought under federal conspiracy theories. Federal law made it a crime for 2 or more people to
go in disguise on the highway with intent to prevent or hinder the free exercise or enjoyment of
any right by another citizen.
2. Held that, as applied, 241 was a valid exercise of Congress power
a. While 241 does not, on its face, require state action; on these facts, there was enough
evidence of state action to allow this statute to be valid here as applied.
3. Rule: because part of conspiracy was that false report was filed by state law enforcement and
then murder this was sufficient to establish that this was a state action which the 14th could
touch.
a. Allegation of state action here is all that is necessary
b. Congress may write laws regarding equal protection and the right to travel because this is
so fundamental to concept of the federal union that congress has inherit power to reach
private action when it abridges independently.
4. Concurrence - Brennan
a. Congress can reach all private citizens under 5
b. Criminal Sanction under 14th
i. Statute: under color of law joint action with state.
ii. US v. Price (1966)
1. Facts: civil rights workers were murdered and hidden in MS after police released them from jail
at night so they could be killed victims were deprived of their right not to be punished without
due process
2. Held: 242 requiring person indicted has acted under color of law was satisfied by because
State officers participated in every phase of the alleged joint adventure the release from jail,
the interception, assault and murder
3. Rule: private person, jointly engaged with state officials in the prohibited action, are acting
under color of law for purposes of the statute. It is enough that the accused was a willful
participant in joint activity with state or its agents.
iii. Screws v. US (1945)
1. Facts: police beat black man to death for stealing; convicted under deprivation of rights under
color of law statute


2. Rule: 242 statute is not too vague because it requires the state to prove specific intent to
deprive a federally recognized right
3. Reasoning:
a. Ds were obviously acting under color of state law because they were police officers and
were beating man under their authority as police officers
b. The presence of a bad purpose or evil intent alone may not be enough, but a requisite
intent to deprive a person of a federal right made definite by decision or other rule of law
saves the act from any charge of unconstitutionality on grounds of vagueness.
c. Civil Sanctions for Private Interference with 14th amendment rights
i. Griffin v. Breckenridge (1971)
1. Facts: blacks were stopped and beaten by white individuals who mistakenly thought they were
civil rights workers. Blacks claimed that whites had conspired to detain, assault, and beat them
to prevent them from seeking the equal protection of the laws and from enjoying the equal
rights, privileges, and immunities of citizens
2. Held 1985 constitutional as applied to private conspiracies interfering with the right to travel.
a. 1985 is a constitutional exercise of power under 2 of the 13
th
amendment as a law
necessary to remove a badge of incident of slavery
b. 1985 can only be applied if the person has an invidiously discriminatory motivation.
There must be racial or perhaps otherwise class based animus behind the conspirators
action.
ii. United Brotherhood of Carpenters v. Scott:
1. Helped to define what the court meant by otherwise class based animus
2. Economic and commercial animus is not enough to constitute a valid 1985 claim.
a. Court implies that it may only apply to racial animus
iii. Bray:
1. Animus against abortion is not a class based animus towards women
d. Congressional power to reach private conduct under 13th
i. Jones v. Alfred Mayer (1968)
1. Facts: black man sued under 1982 because D refused to sell him a house because he was black
2. Held 1982 as a Constitutional exercise of power under 2 of the 13
th
amendment
a. 2 of the 13
th
amendment gives Congress the power to pass all laws necessary and proper
to prohibit all badges and incidents of slavery
i. Racial discrimination in the sale or rental of property is a badge or incident of
slavery which Congress may prohibit under 2 of the 13
th
amendment
ii. Runyon v. McCrary (1976)
1. Facts: 1981 prohibited private, commercial operated, nonsectarian schools from denying
admission to students because they are black.
2. Held that 1981 prohibits private schools from denying admission to blacks
a. not making a contract with a person based upon race is a badge or incident of slavery
which congress has power to regulate against under 2 of the 13
th
amendment

II. CONGRESSIONAL POWER TO ENFORCE CIVIL RIGHTS UNDER 5 OF 14
TH

a. Historical Background
i. Voting rights act of 1965: enacted to rid this country of racial discrimination in voting; only applied
to states deemed to need it.


ii. SC v. Katzenback (1966)
1. Facts: 5 of 1965 Act suspended literacy tests and other devises
2. Rule: Congress can do whatever is necessary and proper under 2 of 15th - under which voting
right was enacted.
3. Reasoning:
a. Congress may use any rational means to effectuate constitutional prohibition of racial
discrimination in voting.
b. No requirement that there must be a showing of violation of 15th amendment.
c. Extended literacy tests ban on areas where no violation had ever been found.
b. Literacy Test Before 1965
i. Lassiter v. North Hampton County Election Board (1966)
1. Facts: black man challenged NC voting literacy test
2. Rule: Literacy tests are constitutional
a. Neutral on race, color, creed or sex
3. Note: HOWEVER, congress has suspended the use of literacy tests.

c. Congressional Power to Enforce Voting Rights: Remedial or Substantive
i. Katzenback v. Morgan (1966)
1. Facts: NY law required voters to be able to read and write English. VRA said that Puerto Ricans
cant be denied right to vote because they cant speak English. NY sued.
a. Brennan holds that under 5 of the 14
th
amendment, Congress may pass laws declaring
state laws denying voting rights to certain groups unconstitutional even if a court has
never ruled on the constitutionality of the state statute
i. However, Congress cannot enact statutes that have the effect of diluting equal
protection and due process decisions of this court. (One Way Ratchet)
b. Congress has power to enforce Constitutional rights as long as legislation is:
i. Plainly adapted to that end
ii. Within the letter and spirit of the Constitution
ii. Oregon v. Mitchell:
1. Congress has the power under article I to override state regulations of the time, place and
manner of federal elections.
a. State election regulations may be set entirely by the states to preserve their independent
existence



d. Confinement of Congress Civil Rights Enforcement power to Proportional and Congruent Remedies
i. City of Boerne v. Flores (1997)
1. Facts: denial by local zoning authorities of churchs building permit was challenged under
Religious Freedom Restoration Act (RFRA) tried to reinstitute strict scrutiny for cases
involving religion.
2. Held Congress had no constitutional authority to enact Religious Freedom Restoration Act
a. Modern view of Congress Power under 5 of the 14
th
amendment


b. Congress Power under 5 of the 14
th
amendment extends only to enforcement. The
power is solely remedial.
i. Congress has the power only to enforce, not to determine what constitutes a
constitutional violation.
c. When acting to remedy a constitutional violation, there must be a congruence and
proportionality between the injury to be prevented, and the means adopted to that end
i. There must be evidence that the state has been habitually violating the equal
protection rights of others
d. (MODERN TEST) For Congress to exercise prophylactic power under 5 of the 14
th

amendment, they must have:
1. Evidence of a Real Injury/Problem
2. Congruence = means/ends connection
3. Proportionality = not more sweeping or burdensome than justified by problem
























THE SPEECH CLAUSE

III. Introduction
a. Arrow says that the first amendment analysis is similar to a wheel and spokes
i. When analyzing a first amendment question, it doesnt matter exactly where you start. Any issue
may be dispositive. For every question, you must ask:
1. Do we have a Content Based Restriction (CBR) or do we have a Time, Place and Manner (TPM)
restriction?


2. Is what the speaker uttered, protected or unprotected speech? (Near)
3. Prior restraint or a subsequent punishment?
a. Prior restraint gets a heavy presumption of unconstitutionality
4. Is it speech or is it conduct?
5. Is it a public forum?
6. Symbolic speech?
7. Commercial speech or core political speech?
ii. All of these must eventually be addressed in determining the outcome of the 1
st
Amend problem.
b. Overview
i. 1
st
amendment
1. Congress shall make no law abridging the freedom of speech
a. Absolute
i. No law means no law
b. Balancing
i. importance of speech vs. governments interest
1. problem here is govs interest almost always wins over individual right
ii. Unprotected speech includes:
1. Obscenity
2. Incitement
a. Incitement to illegal action
b. Incitement to Overthrow
3. Fighting Words
4. Child Pornography
iii. If the court finds that speech is unprotected, the person speaking does not necessarily lose the case.
1. He may still challenge the statute as being overbroad, vague, etc.
iv. If speech is unprotected, the government may pass a law banning speech based on its content.
1. Content based restrictions are only allowed on unprotected speech.
a. Protected speech can only be regulated by time place and manner restrictions. Time,
place and manner restrictions must always be content neutral. (Mosely)
c. Prior restraints
i. Near v Minnesota
1. Prior restraints imposed on speech, unless the speech is classified as unprotected, are
unconstitutional
d. Subject Matter Restriction
i. Police v. Mosely
a. Facts: regulation said no picketing within 150 of school unless it is a labor dispute.
b. Rule: this is content discrimination, and it fails SS
c. Reasoning:
i. Content discrimination: excluding subject matter in speech in public place.
ii. All all peaceful picketing or none at all.
IV. POLICY (APPROACHES)
a. Justifying Protection of Speech
i. Carolene Footnote #4
ii. Truth









V. UNPROTECTED SPEECH: INCITEMENT, FIGHTING WORDS, OBSCENITY, CHILD PORN
a. Incitement to Violence
i. Clear and Present Danger Test
1. Schneck v. US (1919)
a. Facts: D was circulating document by mail that was anti-WWI (anti-draft). A provision of
the Espionage Act made it illegal to willfully make or convey false statement to intend to
interfere with military operations.
b. Affirmed convictions for obstructing recruitment and enlistment service of the army
during war with Germany
2. Holmes Clear and Present Danger Test
a. If action creates a clear and present danger of a substantive evil, Congress (or the
state) has a right to prevent it
i. Look at the effect of the speech
ii. Applying Clear and Present Danger Test
1. Frohwerk v. US(1919) Holmes
a. Facts: D distributed newspaper that said it was monumental and inexcusable to send
soldiers to France. Language may convey imuendo about draft dodging.
b. Rule: this language tends to kindle a flame in people to dodge the draft
c. Reasoning:
i. No evidence that these ever got to draft age men no relationship to harm, but still
convicted.
ii. 1st American wasnt intended to give immunity for every possible use of language
2. Debbs v. US (1919)
a. Facts: public speech given by man running for president. D repeated a statement to jury
that he opposed war.
b. Rule: the jury instruction: no conviction unless words had natural tendency and
reasonable probable effect to obstruct recruiting. D was convicted and conviction upheld
i. NO jury should be asked to determine the natural tendency of words
ii. Tendency test no protection of speech
iii. No 1st analysis in these cases
3. Abrams v. US (1919)
a. Facts: Espionage act also says that you cant urge curtailment of war production. Russian
immigrants made anti-war leaflets asking workers to strike.
b. Rule: D were convicted and convictions were upheld because the plain purpose of the
propaganda was to excite at the supreme crisis of war, disaffection, sedition, riots and


revolution in this country for the purpose of embarrassing and defeating the military
plans in Europe.
c. Dissent Holmes
i. Need specific intent: intent to cripple or hinder US in prosecution of war
ii. Immediate danger is extremely important to test
iii. These leaflets dont reach requisite level of causation imminent danger OR intent
to bring about immediate harm.
iv. we should be eternally vigilant against attempt sot check the expression of
opinions . . . unless they so imminently threaten the immediate interference with
lawful and pressing purposes of the law that immediate check is required to save
the country
d. Holmes Dissent tightens up the test:
i. Specific intent
ii. Imminent danger
iii. Significant evil.
iii. Hands Incitement Test
1. Masses Publishing v. Patten (from District Court not SCROTUS, 1917)
a. Facts: p attempted to get mailman to mail the Masses. D had refused to mail under
Espionage Act.
b. Rule: Opinions criticizing laws not punishable as encouraging violation of law unless
directly advices violation
i. Test: must have DIRECT incitement and DIRECT advocacy to violate law AND thwart
the government.
c. Arrow Focuses on language and content. Whether words used are words of mere
advocacy vs. advocacy to action
2. Gitlow v. NY (1925)
a. Facts: D wrote the Socialist Manifesto and was convicted under anti-anarchy law. The JI
said mere statement is not bad. Must be teaching, advocacy, etc.
b. Supreme Court rejected the Clear and Present Danger test and adopted the Hand test
from Masses
i. statements advocating for the overthrow of government by illegal means are in and
of themselves dangerous even if not likely to succeed
iv. Dennis Test:
1. upheld convictions for advocating overthrow of government even though not likely to succeed
due to lack of followers
2. Dennis incitement test: In each case, courts must ask whether the gravity of the evil discounted
by its improbability justifies such invasion of free speech as is necessary to avoid danger.
a. The clear and present danger test became a disguised balancing test that weighed the
seriousness of the danger against competing interests in free speech.
b. Very fact intensive
v. Clear and Present Danger
1. Dennis Formulation: whether the gravity of the evil discounted by its improbability justifies
such invasion of free speech as is necessary to avoid danger.
2. Learned Hand: Test: must have DIRECT incitement and DIRECT advocacy to violate law AND
thwart the government.


vi. Modern Incitement Test and Repudiation of Whitney
1. Brandenburg v. OH (1969) Modern statement of C&PD Test
a. Facts: KKK had meeting with ah TV crew. D made a speech which led to conviction under
statute similar to anti-anarchy law.
b. Court struck down law punishing a person for advocating violence/illegal act regardless of
likelihood of success
i. Rule: A state can only forbid the advocacy of the use of force or of violation of law
when
1. the advocacy is designed to incite or produce imminent lawless action and
2. the advocacy is likely to produce such action
ii. This test is a combination of clear and present danger and the hand test




b. Fighting Words
i. Overview
1. Typical claim is that speakers provocative message so outrages the audience that some
listeners are likely to resort to violence in response.
2. State seeks to stop the speaker in order to promote the interest of order and avoiding violence
ii. Chaplinsky v. NH (1942)
1. Facts: Jehovahs witness convicted for words face-to-face that would cause average person to
fight. He told cops they were fascists when they arrested him.
2. Fighting words- those which by their very utterance inflict injury or tend to incite an immediate
breach of the peace- are not constitutionally protected because their slight social value is clearly
outweighed by the social interest in order and morality
3. Test: Whether or not people of common intelligence would understand the words as likely to
cause the average addressee to fight.
iii. Cohen v. CA:
1. Guys fuck the draft jacket worn in court protected by free speech
2. Government can only shut off discourse, including fighting words, if it has been shown that
substantial privacy interests are being invaded in an intolerable manner.
a. To constitute fighting words, the words must be directed to a specific person, not
addressed to the world as a whole.
3. When in public, one must avert their eyes to avoid something you dont want to see
a. A person may have more protection when in privacy of home
b. This part of the case may not come out the same after FCC v. Pacifica
iv. Limitation of Fighting Words
1. Gooding v. Wilson (1972)
a. Facts: war protestor threatened cop. State statute said any person who without
provocation uses abusive words to another tending to cause a breach of peace was guilty
of a misdemeanor.
b. Rule: statutes must be limited to words that have direct tendency to cause acts of violence
by the person to whom, individually, the remark was addressed.


c. Reasoning:
i. Law was facially invalid too broad, covered more than just fighting words.
2. TX v Johnson (1989)
a. Facts: flag burning case. Statute prohibited flag burning with the intent to offend.
b. Rule: flag burning = political expression = protected
c. Reasoning:
i. no reasonable onlooker would have regarded Johnsons generalized expression of
dissatisfaction with the policies of the federal government as direct person insult . . .
states interest in maintaining order is not implicated on these facts.
v. Hostile Audiences Distinguished
1. Overview
a. Hostile audience cases arise when an audience is provoked by either the form of the
message or by the message itself
i. Hostile audience applies balancing rather than categorization.
2. Cantwell v. CN (1940)
a. Facts: Jehovahs Witness played record on street corner that was offensive to other
religions.
b. Rule: fighting words must be directed at particular person, not large group.
i. D had right to be on sidewalk and speak
ii. Fighting words: D guilty because someone else committed battery on them.
3. Terminello v. Chicago (1949)
a. Facts: speaker denounced various political and racial group as snakes and slimy scum
and a scuffle broke out; D convicted under a breach of peace statute.
b. Rule: in order for a conviction to stand the State must show:
i. Speech is likely to produce a clear and present danger of serious substantive evil;
AND
ii. That rises far above public inconvenience, annoyance, or unrest
iii. Function of free speech under our system of government is to invite dispute.
4. Feiner v. NY (1951)
a. Facts: speech said that blacks should take up arms. Police tell him to stop, and he doesnt.
He was arrested for disturbing the peace.
b. Where arrest was not an attempt to censor content of speech, but was instead an effort to
protect the peace before any threatened violent reaction took place, a persons first
amendment rights have not been violated
5. Note: In hostile audience cases, court balances importance of right to free speech against
concern with public safety.





c. Obscenity
i. Overview


ii. Justifications for Obscenity Laws
1. Debasement of individual character (protecting the consumer)
2. Offense to unwilling onlookers
3. Inducement of criminal conduct
4. Eroding moral standards
5. Harming the social fabric (nobody is ever truly consuming porno in a purely self regarding way)
6. Obscenity has little value as speech (Non-political, non-cognitive, not susceptible to counter
speech)
7. Definition
a. Sexually explicit speech = protected
b. Obscenity = unprotected speech
iii. Roth v US; Alberts v CA
1. Obscenity, defined as material which deals with sex in a manner appealing to a prurient
interest, is not protected speech.
a. Obscenity is unprotected because it is viewed as having utterly no redeeming social
importance
2. Test: To find if something is obscene court asks whether to the average person, applying
contemporary community standards, the dominant theme of the material taken as a whole
appeals to the prurient interest.
a. Prurient means material having a tendency to incite lustful thoughts
3. Stanley v. GA:
a. Mere private possession of obscene material is not a crime. The states retain broad power
to regulate obscenity- the power to regulate obscenity does not extend to mere possession
by an individual in the privacy of his own home
4. Reidel:
a. After Stanley, a state can still regulate distribution of obscenity through the mail.
iv. Modern Obscenity Analysis:
1. Miller v. CA (1973)
a. First part of obscenity analysis: Conduct must be specifically defined by the applicable
state law as written or authoritatively construed
b. Second part of Obscenity Analysis: Miller Test
i. To determine if something is obscenity the court will ask if
1. Would the average person applying contemporary community standards
find that the work, taken as a whole, appeals to the prurient interest
2. Does the work depict or describes, in a patently offensive way, sexual conduct
as specifically defined by the applicable state law and
3. Does the work, taken as a whole, lack serious literary, artistic, scientific or
political value
ii. Examples of what the state may regulate
1. Patently offensive representations or descriptions of sexual acts, normal or
perverted, actual or simulated
2. Patently offensive representations or descriptions of masturbation, excretory
functions and lewd exhibition of the genitals
c. Paris Theater


i. The state may prohibit public exhibitions or displays of obscenity even if access to
the exhibitions is limited to consenting adults
ii. Stanley doesnt extend to porn theaters (privacy interest not the same)
v. Sexually Explicit but Not Obscene
1. American Bookseller v. Hudnit
a. A state may not declare one perspective right and silence opponents of that perspective by
making their action illegal
vi. Nudity bans
1. Erznoznik v. Jacsonville (1975)
a. Facts: nudity ban for drive in movies.
b. Rule: this was tested under SS and fails because it is so under inclusive.
c. Reasoning:
i. P argues that unwilling person and juvenile cant miss it because the screen is so big
1. Avert your eyes argument
ii. Not directed at home or at captive audience
iii. P argues that this is a traffic obstruction
1. Cant discriminate on basis of content unless clear reasons for distinction.
iv. Overbroad as to minors what about violence?





d. Child Pornography
i. CURRENT RULE: NY v. Ferber
1. Child Pornography is unprotected speech and thus content based restrictions on child
pornography are constitutional
a. This is a different test than obscenity.
i. The material need not appeal to the prurient interest of the average person
ii. The sexual conduct need not be patently offensive
iii. The material at issue need not be considered as a whole
b. Reasons child pornography is unprotected:
i. State has a compelling interest in safeguarding the physical and psychological
wellbeing of minors.
ii. The distribution of films showing child sexual activity is related to sex abuse
iii. Advertising and selling child porn provides an economic motive and is an integral
part of the production of such materials
iv. Value of permitting live performances and photographic reproductions of children
engaged in lewd sexual conduct is exceedingly modest, if not de minimums
ii. Possession of Child Porn Osborne:
1. The state may prohibit the possession and viewing of child pornography at home
a. State has an interest in completely destroying child pornography market


iii. Stimulating Reality
1. Ashcroft v. Free Speech
a. Facts: tried to outlaw virtual child porn even though they werent real children.
i. Violated 1
st
because it restricts speech thats neither obscene nor child porn
VI. NEW CATEGORIES
a. US v. Stevens
i. Facts: videos of dog fighting.
ii. Rule: it would be too overbroad to categorically take them outside of the 1st.
VII. PARTIALLY PROTECTED SPEECH
a. Zoning for Sexual Commercial Activity
i. Young v American Mini Theatres
1. Facts: anti-skid row statute which limits the number of adult movie theaters placed within
certain area.
2. This is one example of Arrows partially protected speech where an ordinance can survive
even though it is not content neutral
3. An appropriately definite zoning ordinance prohibiting location of an adult theater is
constitutionally permissible even if the theater is not displaying obscene material
ii. A zoning ordinance dealing with adult theaters merely cannot constitute a total ban on such
establishments. (Schad)
1. Stevens low value speech argument
2. Societys interest in protecting this type of expression is of a lesser magnitude than an interest
in untrammeled political debate and thus should receive less protection under the first
amendment

iii. Current Rule
1. Renton
a. Facts: ordinance concentrating adult theaters into certain location to control the
secondary effects.
b. Ordinance was a content neutral speech regulation because it was justified without
reference to the content of the regulated speech (justified by the secondary effects of the
speech)
c. City here had substantial governmental interests in preventing crime, protecting retail
trade, preserving property values, etc.
d. Left open alternative avenues of communication since there was a portion of the city left
available for such businesses
2. Almameda Books
a. Facts: density control ordinance for adult businesses. Even if same building, if more than
1 sexual activity = 2 businesses. A study was provided that said that adult businesses
leads to secondary effects
b. Municipality may rely on any evidence that is reasonably believed to be relevant for
demonstrating connection between speech and substantial, independent government
interest.
i. Burden is on person challenging regulation to show rationale proffered is not valid












VIII. SYMBOLIC SPEECH & CONDUCT
a. Cohen v. CA (1971)
i. Facts: D convicted of disturbing the peace for wearing a F#I& the draft jacket in the courthouse.
ii. Rule: this speech was protected because it didnt fall within any category of any unprotected speech.
If speech isnt unprotected, then protected
b. OBrien v. US:
i. Held burning of draft card was unprotected speech
ii. OBrien Test
1. When speech and non-speech is combined, for there not to be a first amendment violation:
a. Law must be based on appropriate constitutional powers
b. Law must further an important or significant governmental goal
c. Governmental interest must be unrelated to the suppression of free expression and
d. The incidental restriction on alleged first amendment freedom is no greater than is
essential to the furtherance of that interest
e. There is no less restrictive alternative


IX. THE RELIGION CLAUSES
a. Overview
i. congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof . . .
ii. Dominant View: voluntarism and separatism
1. Everson v. Board of Education (year)
a. Rule: the establishment clause doesnt prevent a state from paying to bus children to and
from parochial school because this case it taking $ and giving it to parents not school
directly.
b. Principles from case
i. Majority view: church should gain support voluntarily, not from government.
1. Framers favored a wall of separation between church and state. Individual
religious liberty cold be achieved best under government which was stripped of
all power to tax, to support, or assist any religions.
ii. Voluntarism: the advancement of children should come from voluntary support
followers and not form political process of state
iii. Separatism: both religion and government function best if each remains
independent.
iii. Minority view: nonpreferentialism
1. Establishment clause only means that you cannot favor one religion over the other.


a. 1st was intended merely to prevent establishment of national church or giving it preferred
status
b. Establishment = help or aid in anyway.
2. Lee v. Weismen reply to minority
a. Rule: establishment clause mean sot strengthen, support, hold up, etc. not just establish
cant give it any support
b. Reasoning:
i. Amendments supporting non-preferential treatment of religion were rejected in
favor of Establishment clause.
iv. Incorporation of the Religion Clauses against the States
1. Free exercise of religion is encompassed by 14th
v. Reconciling that religion clauses
1. Free exercise and establishment clause seem to be at odds with one another
a. Free exercise: you have to aid religion to avoid burdening religion
b. Establishment clause: you cant support religion
2. Single view: both clauses serve a single value protecting an individuals freedom of religious
belief and practices
3. Total neutrality: not accepted by SC
4. Permissible accommodation: free exercise compels some accommodation of religion,
establishment forbids other accommodation of religion and between these 2 areas lies a broad
zone where religious accommodation by government is neither forbidden nor required.
b. Free Exercise
i. Laws discriminating against religion