1 Constitutional Law II Outline

Introduction I. History
A. Con Law I a. Was all about the structure of the government and how it was formed b. Important Dates i. 1776 Declaration of Independence ii. 1781 Articles of Confederation iii. 1789 constitution ratified c. Important Terms i. Framers- they men that were at the constitutional convention 1. Arguably acting under ultra vires beyond their authority, they really didn¶t have any authority to be scraping the articles of confederation ii. founders ± the men who signed declaration of independence 1. these two groups however had a lot of the same people. B. Con Law II i. More about individual rights and freedoms C. How to interpret the Constitution a. Different Styles of Interpretation of the constitution i. Textualism ± what is said in the plain meaning of the words that are in the text1. Read the word and apply the most used and expected meaning to those words ii. Originaliam ± what was intended by the framers ± what was their original intent. Very similar to textualism 1. What to look to for what their intent really was ± federalist papers is a good source. This is where J. Madison and Hamilton were trying to convince people to ratify the constitution. a. so controversial because the states had just claimed their independence from England and now arguably were giving away there power again. iii. Non- Originalism ± looks to the current needs of society and intrepts the constitution in that way. Takes the view that the Constitution is not static and that there is the ability to make it flexible to fit the needs and concerns of society in present day situations. 1. Just want to embrace the original spirit of the constitution b. Who follows what i. Judges ± most judges follow somewhere in the middle of the views ± with very few embracing completely one or the other. c. Debate on the 14th A and how the different views would be imposed i. The issue with women having the right to vote 1. the org view =- many claim that it is a violation of equal protection in the present day however originally women weren¶t thought to be protected

2 2. therefore in order for women to have the right to vote ± there had to be some non-orginalism imposed ± so that we could embrace the idea of gender discrimination D. History a. Marbury v. Madison ± provided to main things in the are of con law i. That the constitution is paramount ± that the con prevails over legislation ii. That the court decides ± ³It is emphatically the province and duty of the judicial dept to say what that law is´ Judicial Review 1. nothing says the judicial branch is arbitrator of all. There is room and there will be judicial review ± they will have the power to strike down ruling of other courts that they see are wrong. 2. argue that judicial review is a good thing ± because these judges are not elected and subject to society swaying as much a. pure democracy is limited by judicial review b. Section 5 of the 14th A ± is essential for Congress to have power over the states i. Congress though this section can impose their way onto the state

II. Incorporation
A. Bill of Rights a. Has been extended to state and local governments b. 5th A ± ³No person shall be deprived of life, liberty, or property, without die process of law; nor shall private property be taken for public use, without just compensation.´ B. Gun Control example a. 2nd A doesn¶t say that the state can¶t ban guns if they want to i. You can¶t go to the federal government and claim that the states ban on assault weapons is wrong ± there is no 2nd Amendment violation C. What is the difference of saying it¶s a protected constitutional right as opposed to not a. States can give you more rights but not less ± however the states can regulate those rights that are protected by regulation i. Freedom of speech example ii. Gov can limit constitutional rights but cant prohibit them. iii. Federal government can abridge laws with a reasonable accommodation. b. Different thresholds i. burden of proof ± government has the burden, presumed that person has that right due to the constitution 1. gov has to shoe justification for regulation etc ii. the spectrum 1. Rational basis ± government action is presumed constitutional, there needs to be a rational or reasonable reason wont be upheld if its arbitrary or capricious. a. Police power ± health safety and welfare 2. Intermediate 3. Strict Scrutiny ± government action presumed unconstitutional. The action must be narrowly tailored and there must be a compelling government interest. a. This is where you see judicial review come in

3 c. US v. Emerson i. 1st case in federal ct that said the right to bear arms is an individual right ii. that the govern has a right to regulate ± if it is narrowly tailored and there is a compelling governmental interest d. Silveria v. Lockyer i. This ct held that there is no individual right bear arms ii. Only applies to federal act not to state and local iii. Therefore there is a split in the circuits ± this is a situation where the SC usually decides but they haven¶t yet

The Application of the Bill of Rights to the states ± Incorporation
I. Preamble ± set out what constitution was trying to embrace A. Intended to be a proclamation of goals the new nation wanted (set up the government) II. Bill of Rights ± most substantive protections ± was not originally incorporated but because the concerns of anti federalist - they got parts of it incorporated A. Why didn¶t want/ need incorporation of the Bill of Rights a. Many felt that there really wasn¶t a need for the incorporation because it was already implicit in the constitution in other places. B. Cases a. Barron v. Mayor i. Physical taking of property ± the wharf and the diverted streams ii. Said the 5th A doesn¶t apply because the federal constitution only applies to the federal government not to the states. iii. The federal gov cant take your property and not compensate you but the state can ± therefore there is no bill of rights issue iv. The bill of rights was not yet applied to the states ± arguably decided correctly in the context of the time. B. The change a. 14th A (civil war amendments designed to change this) ± gave power to the federal government to impose things on the state level. This was supposed to be done by the privileges and immunities clauses. b. However in 1873 the PI clause was completely ignored and we were left with selective incorporation. Having various provisions being applied though the due process clause and others not applied to the states. C. Privileges and Immunities Clause ± was thought to be the bill of rights but include even more. i. Problem that it is unqualified ii. Due process is qualified ± may deprive as long as given due process of law iii. Equal protection ± unqualified doesn¶t say without due process of law III. Incorporation A. Main question ± does the Bill of Rights apply to the states?? a. Bill of Rights ± first 10 A

4 B. Major issues stemming out of the wording used for citizens a. 14th Amendment Citizenship clause ± All persons born or naturalized in the US and subject to the jurisdiction thereof are citizens of the US and of the State wherein they reside b. PI clause ± ³no state shall make or enforce any law which shall abridge the privileges and immunities of the citizens of the US. ³ i. No mention of state citizens only citizens of the US. C. Case a. Slaughter House Cases- Privileges and Immunities Clause i. Monopoly with the slaughters houses in New Orleans ± claimed violated 13th and 14th A 1. 13th A ± no the purpose was to deal with slaves- not to extend to the workplace 2. 14th A ± applied narrowly ± PI didn¶t apply to the states- the lang doesn¶t appear to have been made to apply to state citizens only to citizens of the US. a. Only says citizens of the US ii. ct laid out then the rights a citizen of the US has and this is not deemed to be one of them (Privileges and Immunities Rights) only those things connected to national citizenship. Very narrow rights- made this clause basically a dead letter 1. the right of a citizen of one state to enter and leave a state. 2. the right to be treated as a welcome visitor rather than an unfriendly alien when temp in a state. ± the ct based this right on the privileges and immunities clause- which removes from citizens of each state the disabilities of alienage in other states 3. the right of newly arrived citizen to be treated like other residents of the state iii. any right beyond the 3 that are listed above are considered not to be a fundamental right unless the state provides for it iv. this has not been changed in 130 yrs ± and even more clearly laid out in the Cruishank case that the PI doesn¶t make the bill of rights apply to the states v. The PI clause of the 14th A should not be interpreted as applying the Bill of Rights to the states. b. Case that recognized Privileges and Immunities i. Saenz v. Roe ± 1999 1. CA enacted statute that limited the amount of welfare you could get if you moved there ± this was ruled to violated PI as a right of a US citizen to move freely about the country 2. ct said this was a burden of the right to travel D. Incorporation Debate ± as a result of Slaughter House and PI determining that the BofR is not applied to the states we have this debate. a. Total incorporation ± ³All the rights should be deemed to be included in the DPC of the 14th A. FAILED ± per Slaughter house i. Black and Douglas

What is the content of the Bill of Rights as applied to the states? i. DP precludes those practices that ³offend those canons of decency and fairness which express the notions of justice of English speaking peoples´ Frankfurter 3. b. DP clause includes ± principles of justice so rooted in the tradition and conscience of our people as to be ranked as fundamental (and that are therefore) implicit in the concept of ordered liberty. not private. 3rd A ± right not to have soldiers quartered in one¶s home iii. juries ± don¶t need 12 like the federal cts 2. Why are certain things incorporated i. this was the first case that showed that the fundamental rights idea should be used ± this ct held that the right to testify against oneself was not a fundamental right. this case opened the door to the bill of rights being applied/incorporated through the due process clause of the 14th A d. this doesn¶t mean however that fundamental rights cannot be subject to restrictions/ limitations (free speech only at certain time etc) c. actions. liberty and property are so fundamental to society operating ± they are thought to be incorporated ± so the bill of rights is incorporated thru the 14th A. Must have the entire protection ± same amount must be honored by the state ± roughly yes ± except two situations: 1. Whatever the Bill of Rights protects against the federal gov also applies to the states ii. Selective incorporation ± only some of the bill of rights are sufficiently fundamental to apply to the states and local govt *** this is what we have in society to this day** this process started in 1897 1. Twining v. 8th ± the ct has never ruled at to whether the prohibition of excessive fines is incorped e. General A. ii. What is state action? a. Fundamental Right 1. Therefore we need to find that they are a state actor in order to apply the constitution to them.Cardozo 2. 7th A ± right to a jury for a civil trial v.later overturned 2. 2nd A ± right to bear arms ii. The protections given in the Bill of Rights and the other Amendments protect only against gov¶t (ie state). The idea of to what extent the state is involved?? Is it enough to make it covered by the constitution?? (gov¶t action as it applies to all levels of the gov¶t). 5th A ± right to a grand jury indictment in criminal cases iv. Life. . NJ 1.5 b. and don¶t need unanimous decisions State Action I. What has not been incorporated most bill of rights incorporated but below: i.

1. SC admits that the exceptions are anything but consistent ± but they want to prohibit discrimination and at the same time allow people to have freedom . in the following circumstances: (exceptions that the federal government cant touch private individuals) a. d. Cannot bring action against private individuals for constitutional violations unless state action is shown. Leaves the question then ± When should the government reach into private affairs??? II. Partnership of sorts (lease or loan of $ is not necessarily enough) i. park c. Aimed at government discrimination but its terms. The 13th A ± slavery this does mandate private citizens not to have slaves b. Private party exercises powers traditionally and exclusively reserved to the state/ government . Thus a government actor and subject to constitutional claims. Government Regulations/ Licenses iii. iii. Peremptory Challenges ii. Unless its slavery B. The ct held that the constitution doesn¶t apply to private citizens ± that this was not the intent of the 14th A. Initiatives encouraging violations of rights ± private action pursuant to an affirmative state act designed to encourage private violations of civil rights. and thus subject to constitutional restrictions. 1. When a private party has a ³close nexus´ to state activity that injured the P.´ (Marsh) i. not a public function . Issue ± what is the scope of the Constitution provisions ?? ± does it apply to private actions ± clearly it prohibits government action what about private ??? ii. school. Entwinement ± 2001 arguably. Problem a. A private party will be treated as a state actor/ governmental action. it would come under either of the two and doesn¶t need its own category B. gas unities. Government Subsides ± use of government funds iv. Public Function ± when a private entity is performing a ³public function.shopping center. Judicial and Law enforcement (Shelly) 1. Civil Rights Cases i. Entanglement ± direct entanglement by the gov¶t with private party IS state action. i. Engaging in a activity that is soo government like that even though its private it should be treated like a government act. Cases a. Major Exceptions to the State Action Doctrine A. the language of the 14th A says ± No STATE. Prejudgment attachment ± the use of state cts to enforce a private action 2.6 c. it is really not the gov¶t duty to fix individual people ± designed to protect against orgs and institutional misdoings iv. nursing home. ii.

All attributes like a municipality ± govt entity. Terry v. Company owned town ± JW wanted to distribute religious literature ii. v. Would be different if it was a golf club unless it was a municipal golf club. Really a private entity forming a public function. Areas in which the Ct has applied the public function test: (may or may not agree with this) i. Jackson. Marsh v. Substantive ± discuss later iii. The ct used a balancing test and looked at whether the private property was being used mostly for public purposes iii. Elections ± reinforcing the ideas of democracy (Terry v.can become public and equivalent to a state actor b. Bluejays independent political group ± excluded blacks. liberty or property is taken 2. Cut off utilities and claimed a procedural due process violation. Dissent argues more like police and fire dept c. P argues that cause of the monopoly allowed by the state they are public actors (very similar to entanglement ± really very fuzzy) iv. Inheritance white park only ± held by city. ct feels not a state actor ± Constitution doesn¶t apply. Gov¶t regulation that doesn¶t amount to more is not state action vi. v. exclusively done by the government. c. Whether it is an activity that has been traditionally. However it was ruled that once the ct looked at they property ± that it feels more like public property rather than private. AL i.7 C. Evans v. b. Therefore the issue is raised as to when a private property takes on a different function . (Jackson) d. Adams a. But acted like a primary for elections. Private Property Used for Public Purposes (Marsh. Newton a. Jackson v. Evans) 1. The ct ruled that they were taking on a state actor role and therefore were in violation of the 15th A. Not a traditional state function. Adams) 1. A Balancing test ± looks to whether the private property is used for a public purpose (Marsh) ii. St ct ruled on property principles ± that they did have the right to prohibit trespass vs exercise of free speech and religion iv. Public Function Exception a. Metropolitan ± contrast to Marsh i. Two types of due process violations: under either the 5th or 14th A 1. No state law that provides that they must furnish electricity. ii. this time the ct argued that the electric company was a private actor. The two public function tests laid out by the above cases i. Procedural ± notice and hearing is required if life. allowed whites and blacks then handed over to a private administrator who didn¶t want blacks . ii.

the questions then really becomes how much state involvement is enough to see if the private person becomes a state actor iii. Ct ruled that the city still have close enough ties to the park that it is a state actor and therefore in violation of the constitution. 2. Edmundson Oil Co 1. The govt was asked to enforce this covenant. 3. Because they become entangled in the matter. Lugar v. Remember this doesn¶t mean that there cant be self help .8 b. 2. Ct ruled here that it meets both ± it was a statute so it meet (1) and the fact that the state authorized the sheriff to enforce the attachment there is a state actor. Whether party charged with the deprivation (acting party) must be fairly said to be a state actor. Issue arose Whether in enforcing this cov does the ct become a st actor? ± YES 2. 3. The actual cov itself is not un-constitutional but arguably has no teeth cause no ct will enforce it ii. There was a restrictive covenant on a piece of property that it could not be sold to blacks. Shelly v. Prejudgment Attachment ± st statute that allows stuff to be reposed by a state actor ie sheriff etc (not just a repo man) before a hearing i. a procedural due process issue ct had to look to see if really any state action. this was different because it was a self-help situation the sheriff only arranged for the storage not for the attachment. Judicial Law Enforcement action ± (Shelly) Anytime a state enforces a private state action ± arguably it becomes a state actor and therefore is held under constitution ± but over time this has become very LIMITED in actuality. 2 main areas we actually see this: a. The ct ruled that yes it becomes a constitutional violation for the state ct to enforce this cov. Contrast to Lugar ± Flagg brothers 1. They were sufficiently intertwined/ entangled D. Judical and Law Enforcement i. Entanglement Exception a. oil company sued truck stop for non payment and attached their property before a hearing was conducted. Right or privilege was created by the state b. 2. Kramer 1. Problem with Shelly 1. ii. Applied a two-part test a.

has been applied narrowly ii. bottom line ± cant use race for a peremptory challenge in a civil or criminal case. Claim of a violation of EP under the 14th A. 2. Government Regulation i. History ± Batson ± applies to criminal proceeding with the state iii.does civil trials have the same requirement that there may not be a use of the peremptory challenges on the basis of race 2. ii. employer negligence case (2 private actors. interdependence of one another 3. Irvis 1. 4. idea being that since there is sufficient entanglement and they are so intertwined that they are a state actor. followed the Lugar test ± there was enough action by the state to consider it a state actor 3. Preemptory Challenges ± challenges on jurors based on race i. In both criminal and civil cases this is applicable otherwise a constitutional violation because the ct becomes a state actor. no state involvement on either side of case) . the private business was ruled to be covered under the state actor doctrine and therefore in violation of the constitution. The coffee shop refused service to a black person. The business leased its space from the state of DE. in this case we see how far government regulation will go ± will it extend to all licensing institutions. Argued that there was sufficient entanglement of the private and public actor i. The ct talked about how the lease could have freed them from obligation. Moose Lodge v. Irvis was denied service because of is race at the private Moose lodge. There is some burden of proof to show that its not based on race.proving state actor requirements? ± NO . D then argued that since PA gave a liquor license to the Moose lodge that they are a state actor. Burton v. Leesville Concrete Co 1. McCollum 1. criminal D asserts his right to use peremptory challenges based on race ± he too may not use race b. private business (coffee shop) in a publicly owned and operated parking ramp.9 b. 2. iv. so we must determine whether there is a state actor? a. Mutual benefits. a. Inter connectivesness . Wilmington Parking Authority 1. Edmunson v.

Scare licensing is not enough 4. this was the first case that really used the word entwinement. ct did not feel there is a large enough connection between private and state. There are many states that are a party of the NCAA. . Prof suggests this would probably just fall under other areas but cautions he doesn¶t really know where the SC is going with this. But the association itself was a private one. ii. looked also at the Lugar test and felt that there was a close nexus between the state and the challenged action. ³we have treated a nominally private entity as a state actor when it is so controlled by an agency of the state. Public golf clubs may not be discriminatory 5. Use the same analysis as with licensing d. Also the fact that this is private property and not public property also has an impact. BUT b. Alone government subsides are not enough ii. Entwinements Exception a. v.10 3. the ct ruled that yes they are held under the state action doctrine iii. Saying one will abide by the constitution is not enough 5. TN Secondary School i. Initiatives Encouraging Violations of Rights i.: iv. when it has been delegated a public function by the state. when it is entwined with governmental policies or when government is entwined in its management and control. Made a distinction because of Tarkanian case ± school discharged basketball coach NCAA was involved that is strictly a nation org not a just dealing with the state. General i. Votes approved an initiative that encourages violation of rights ± to allow this would be a violation of the constitution ii. EP will prevail only if there is a high level of state intertwinement. b. 6. License alone is not enough 2. Government Subsides i. The right of association will prevail if there is not a lot of intertwinement a. Brentwood v. iii. Leased land is Public land ± yes that is enough c. Dissent ± such strong regulation in PA with liquor licenses that there is a high level of government intertwinement. Monopoly alone ± is not enough 3. Therefore private golf clubs can still remain discriminatory if they wish. Argued then under the commerce clause ± but not a place of public accommodation ± so no. Will not allow things to be decided on by a discriminatory grounds E. 4. A private school was sited for a recruiting violation. What we learned ± 1. Sports association where 85% of the heads were public school officials. Question arose as to whether the association was so entwined and dominated by the state/public actors that they are held under the state action doctrine? 1.

The focus is on the sufficiency of the justification for the gov action not on the procedures the gov has followed. Protecting economic liberties b. liberty or property 1. Procedural Due Process . example what kind of notice is needed and what type of hearing the gov must provide when it deprives a person of life. Economic Substantive Due Process ± Lochner Era A. Main Question: a. Issue came up how far does the SC need to step in and check on what legislature is doing.11 Economic Liberties I.asks whether the gov has an adequate reason for taking away a person¶s (class of people) life. Focus on Privacy!!! 1. Privacy SDP (abortion etc) 2. liberty or property. The ct used the doctrine of Substantive Due Process to strike down state laws which abridged the liberty to contract. B. Two major types: a. 3. Lasted during the late 19th century until 1937 b. Contracts Clause ± Article I Section 10 b.refers to the procedures the gov must follow when it takes away a person¶s (individual) life. Wanted to protect contracts that are made in the state. 5th ± federal government originates from ii. Used primarily in two areas ± (if fundamental SS ± if not RB) a. Cases in the Lochner Era a. 14th ± state and local government is where is originates from iii. What is the proper role of ct in shaking down (un-elected) actions of democratically elected government officials. Economic SDP ± ended in 1937. Safeguarding privacy II. Substantive due process . Too far ± un democratic ii. Due Process Clause ± 5th and 14th A i. main issue of what is the proper role of the ct visa vie democratically elected government officials B. General a. b. What is the proper amount of judicial protection of economic liberties? i. Not far enough ± SC not doing their job c. Allegeyer v. The areas constitution protects economic liberties: a. liberty or property 2. usually notice and a hearing iv. i. What we see in the Locher era 1897-1934 i. Takings Clause ± Amendment V c. Example ± when a right under the DPC is deemed fundamental by the SC the gov must prove that its action is necessary to achieve a compelling purpose. LA . Introduction ± A.

± right to contract. That there is a presumption in the constitution that great deference should be placed on legislature and their decisions unless they are plainly out of bounds. Freedom to contract principles were upheld again. State would have to prove a health and safety objective and the ct would have the final review ± the SC had the final determination. Therefore it is held to be constitutional. the contrast was with the miners and this was shown to be within the police powers and why it is upheld and this isn¶t. No right to interfere with private contracts. There is the idea arising that no matter what legislature says that the SC is always going to overrule it unless its clearly a police power case. There was way to much authority being given to strike down legislature ii. Since they had no businesses or agents in LA. To deprive them of this right would be a deprivation of liberty. Coppage v Kansas i. Argued that if this was allowed that no trade would be exempt. This showed what was to be in the future. 1. that there needed to be some deference given to the legislature. This was struck down because it was not again thought to be within the police power of the state. iii. iv. Suit brought claiming this contractual provision was un-constitutional. LA enacted a law saying NY comp could not insure people in LA. The ct said that the people of LA have a right to contract with whomever they please and this is a limitation on the right to contract. 1. Harlan ± argued that it was police power. not about embodying only the fittest will survive. Valid health concerns. Holmes ± not ct job to pose economic theories. NY handed down min hrs for bakers in the state. the ct relied on the liberty interests of pursuing an occupation and freely entering into contracts. to presume that its constitutional. The ct ruling was the laisez faire attitude at the time towards employment . ii. Why became a problem i. 2. 1. ii.the at the expense of the state¶s power to regulate for the common good. c. NY i. ii. Lochner v. State law stated that the employer could require the prospective employee to sign a form that said they wouldn¶t join a union. This is a deprivation of liberty because it is putting regulations on professions. Ct ruled that they are not forced to enter into the agreement and if they don¶t like it don¶t work for them. fundamental right (substantive due process) to sell you work for whatever price you want to. Dissent 1.12 i. Laws Protecting Unionizing d. iii. iii. Maximum Hours Laws . The state law must then fall ± they may regulate but must be within the police power in order for it to not be unconstitutional b.

(Equal protection concerns really but that wasn¶t raised until years later. ii. Era change ± women now have the right to vote. the state law (legislation) is struck down unconstitutional to have min wage laws. Messing up the whole political system. Some guy sold milk for a lower price. Without a reasonable basis. 1. Holmes dissent ± legislature knows what¶s best why are we stepping on their toes.) ii. This is a good illustration of how the ct is acting like legislature and discarding what indv states have determined is in the best interest for their state. Therefore unlike the bakers in Holden it was held to be constitutional. Nebbia v. ii. Passed legislation to ban it. Weaver v. iv. as long as legislation is rational ± OK b. ± he went on and on in this brief how women need men to protect them and that they are child bearers so they need extra protection. Not in conflict with the constitution to require this ± because its police power. Palmer i. Min and max retail prices for milk. ± ruled it was not arbitrary or capricious. Adkins v. This ct strikes down the min wage laws ± saying that there is an absolute right to contract. up the challenger to say no RB . iii. Oregon i. iii. NY wanted to protect milk farmers and felt it was in their police power to pass this legislation. C. NY i. The ct overturned the legislation and allowed for shoddy to be used. Law was held to be constitutional and let legislation stand. there is no police power. Most famous for Brandies brief. ii. Muller v. NY legislature. Tried to stop comfortable makers to stop using shoddy. Case Leaning towards a change a. This is an imposition on the right to contract and will not be upheld. Minimum Wage Laws f. a state is free to adopt whatever economic policy that is deemed reasonable to promote public welfare the ct are without authority to declare such authority un-constitutional 2.13 e. Ct focused whether this is a valid exercise of police power ± this ct ruled that there was a valid exercise of police power and upheld the min hr laws. felt that they didn¶t prove their use of police power iii. ct rejected the whole fundamental right to contract and also revoked the cts right to not give deference to the state for welfare matters a. This case has a piece of legislation that required min wage for women and children. Children¶s Hospital i. iv. Consumer Protection Legislation g.

Liberty is protected ±not of contract but of liberty. i. v. US v. and whether the means chosen can rationally be said to advance that interest. There is no longer the idea that contracts rights stand above all other rights of citizens. Much closer to a rubber stamp these days. Parish i. and may be abridged when the state regulates in the common interest. After the Locher Era ± Economic Substantive Due Process A. b. The ct for the first time didn¶t really look to the underlying facts and took for granted that legislation knew what it was doing. . c. b. c. Lee Optical of OK Inc. Case about the ban on milk filler. 1. the right to contract and the right to pursue employment are low-level liberty interests. the abridgment of which receives only RB review. The ct will uphold a law if any state facts existed or could have been presumed to exist ± which would support the law. begin to see the idea that as long as its not arbitrary or unreasonable then DP is given and the ct has no right to overturn legislation vi. B. Carolene Products i. The SC upheld that state law of min wag to women ± focused more in the textual work LIBERTY and went away from contract language iii. The emergence of the standard of RB. which regulate economic matters. Chambermaid brought suit claiming she wasn¶t get paid what she was supposed to under min wage laws ii. liberty is to be protected again the evils which can harm the health. Ct said they were not going to get into the business of 2nd guessing legislature. General a. ii. West Coast Hotel v. ii. The ct asks whether a legitimate government interest is being advanced by the law. the Court has upheld virtually all-state laws. i. This was a preview to the future ± arbitrary and capricious sets the tone for reasonableness and the rational basis review. 2. III. the state¶s police power argument worked and rejected the P¶s argument that the law unduly abridged the liberty interest in freely entering into a contract. Law challenged the fact that the gov required a certain eye dr to fill a prescription. The end of Locherism a. Ct ruled Contract rights. while part of the liberty protected by the DPC. Williamson v. Any rational basis for the law would be enough to uphold it. iv. Showed that rational basis is used for everything but the 1st 10 A of the constitution iii. For substantive due process purposes. From 1934 to the present.14 iii. such a law will be upheld if it is not arbitrary or capricious and had a reasonable relation to proper legislative purpose. safety and welfare and morals of its citizens. are not absolute.

AKA ± ³presumption. b. Standards of Review a. Normal standard of review ± default i. Rational basis review ± acts of legislature are upheld so as legislature had a rational reason/ basis for the act 1. D. This was due process violation because it is taking away property without due process of law (notice and hearing) there was arguably no notice before this case that bad behavior would result in this high of an award iii. degree of reprehensibility of D conduct± paid to much attention to out of state actions 2. a. Punitive Damages a. ratio of the punitive damages awarded by the jury and the civil penalties authorized for these action. Dissent 1. Usually only got a couple thousand dollar fin iv. struck down only where arbitrary and or unreasonable/ capricious 4. Ct determines this response to it and therefore should be allowed 2. Fundamental rights cases i. State Farm v. Campbell i. ii. if ct determines this then that¶s ok to her.15 iii. there really is no NOTICE to this extreme of damages 2. Challenger had the burden to prove the act is unconstitutional . Deal with this here (although no law.on constitutionality´ 3. (All legislation gets rational basis review with a few exceptions: ± will see a lot more about this in the future. is it acceptable to punish for cases in all states ± no must only punish for the action in that state E. reasonableness of the penalty as compared to Act. legislation) because awards have been overturned by economic substantial due process. Went through the BMW Gore factors. a. disparity of between the actual or potential harm suffered by the P and the punitive damage award 3. Ex ± suspect classifications (in EPC context) 5. How does punitive damages effect Due process under the 5th and 14th A 1. usually know what your damages will be but in punitive there is really no way to gage this. 1. Focused on the idea of resorting to the polls if you don¶t like what the legislation is doing. High presumption of validity and legislature is given great deference 2. Car accident ± State Farm doing some weird stuff and D and the injured come together and sue SF. Was awarded 145 M in punitive and 1 M in compensatory ii. General i. This is the political process and we are going to uphold it.

Government must prove that the act is constitutional and meets stnds ii.private and private ) a. The Contracts Clause (Economic Liberties) A.legislation is presumed Invalid 2. c. Blaisdells i. the P has the burden of showing either that there is no legitimate reason for the law.16 b. The K was already existing ± so it meets that part. b. Locher is arguably held under this IV. Test 1. Government Interference with Private Contracts (parties . the impairment was serving to help a significant and legit public purpose ± the Depression. They argued that the nature of the emergency didn¶t create power but allowed a power that is dormant to emerge. During the depression and the state of Missouri past legislation that would allow mortgage payments to be paid later than normal to allow some more time before foreclosures. Article I Section 10 ± Contracts Clause ± ³no state shall «pass any«law impairing the obligation of contracts. This doesn¶t effect future contracts. under police power 2. Is there a substantial impairment of an existing contractual relationship? ii. Intermediate iii. The contracts clause has NOTHING to do with a state passing a law. Remember this only has to do with present contracts ± they must already exist. Heightened scrutiny (Intermediate and Strict Scrutiny) 1. If yes ± Does the impairment serve a significant and legitimate public purpose? iii. or that the government has chosen means that are not rationally related to achieving its goals. i. which impairs the obligation of existing contracts. the means was reasonable ± it was only temporary. Strict scrutiny 1. 1. B. If the federal government passes a law that impairs the obligations of an EXISTING contract.RB applies. . started in more force after the end of the Lochner era and substantive due process. d. If so ± is the law reasonably related to achieving that goal? Cases b. Private Contracts: Government may interfere if (similar to rational basis test) i. 3. Home Building and Loan v. ii. The presumption of validity shifts . a.´ a. There is state impairment of contracts all the time but the cts give great deference to the contract and that is why the contracts clause is not often used. The contracts clause claim. which affects someone¶s ability to contract in the future. Gov¶t must prove that the act is constitutional and meets stnds 3. The constitution prohibits a state from passing a law.

is there a substantial impairment of a contractual relationship 2. Set out a 3 part test: (as shown above) like a rational basis test. ii. ii. A state law altering the obligations of a contract to which the state is a party might violate the Contracts Clause. KS power and light i. Energy Reserves v. Adding Obligations to a Contract d. There was a severe impact on the contractual obligation. 1. There was a huge change in the expectation part of the K. and if so ± is it reasonably related to achieving the goal? iii. C. Violation of the contracts clause. and this was a reasonable means iv. Had an escalator clause in the contract between energy provider and the supplier. Spannaus i. iii. Reliance was effected greatly in this case and therefore didn¶t met the ³rational basis test´ and therefore it is unreasonable. Interference with Government Contracts ± (parties ± private and state) interference with contracts made on their own a. The change in what the state required under pension plans. The obligations of the K remained the same. there wasn¶t a broad societal interest being protected ± very narrow thus tends to look more like unreasonable. . Allied Structural Steel v. Limiting Prices c. protecting consumers of natural gas from increases in cost of natural gas 3. Seemed to use a 5 part test on pg 562 to see if the government is justified in intervening with a contract. if yes ± does it serve a significant and legitimate public purpose 3. there was a very legitimate public interest a. The delay in payment is not impairment. iv. iv. Ct said went to fair unreasonable 1. The govt then enacted a law that stopped windfalls of profit and had a fixed rate for energy costs. the ct ruled that the reliance of the expectations was not so abridged and that it would amount to unreasonableness. this ct allowed the change in the K because they felt they were no ultimately changing the K just putting on hold for awhile. The reliance the company had on the K was basically voided out. Said no violation of the contracts clause when taken together just an exercise of police power.17 a. Test application: 1. iii. this ct ruled that there was a substantial impairment 2. There was a major difference between what the state wanted and what P had set out in their employment contracts.

Dissent argued that the contracts clause was for private and not the government. i. Case . iii. Was just compensation paid? B.18 b. necessary is a lot more like a strict scrutiny analysis 2. 3. if you see private and state) i. d. Then the laws were challenged wanted to use money from the bonds for RR. a government is not thought to operate to further their own self interest. promised it wouldn¶t go into RR. 2. Is the taking for public use? 1. Is the law based on reasonable conditions and is it appropriate to the public purpose underlying the law? Case c. Government may interfere but only if it meets heightened scrutiny *** be aware of this difference. Has the law substantially impaired on obligation of an existing contract. iii. It must be exercised in conjunction with the 10th A police power if a state is taking property. US Trust Co v. Takings Clause A. that they may then take it back if have a legit purpose. if not strict its definitely at least heightened v. must show that there is no less restrictive alternative available that could have been used a. The government had offered bonds in the transportation industry. General a. if legislature says a taking is for public use. if there is a more plausible/less restrictive way ± the law fails b. Is it property being taken ? ii. Does the government has a significant and legitimate reason for the impairment. i. Still apply the three part test but apply it more stringently: 1. 1. Ct asked whether the contracts clause had been violated and whether it was reasonable and NECESSARY. Test: the 5th A qualifies this test. that there should be freedom to change contracts as time progresses. b. Shouldn¶t be continually bound by others ideas of proper. IV. iv. even if the condemned property is transferred to another private party. a ct will almost always agree. The Takings Clause is not an independent source of power. That it once was the states land. Incorporated through the DPC of the 14th A to apply to the states. ii. c. There is a self-interest at stake when it¶s a government contract. It was a governmental contracts therefore held to a different standard than rational basis. Precise test is uncertain but Lawrence says like strict scrutiny ii. NJ i. More of a heightened scrutiny. Idea behind taking ± eminent domain. 5th A ± ³nor shall private property be taken for public use without just compensation.

Test Rational Basis Interned Strict Scrutiny End (gov¶t goal) Legitimate govt interest Important to government interest Compelling government interest *************Equal Protections ******************* (about treating people differently ± X is getting to do something that Y isn¶t allowed to. Important to remember about the constitution a. vi.19 a. from private to private ± for use of common carriers RR. The state may have stricter guidelines than what the constitution lays out. Classification Suspect Class Types of people in Race. C. Therefore constitutional amendments at the state level resemble legislation. national origin. O¶Connor in dissent talked about 3 ways allow takings 1. fundamental rights Level of Scrutiny Strict scrutiny ± very little under or over inclusiveness (upheld if it is proven necessary to achieve a Burden of Proof Shifts to the government after the P has shown an intentional discrimination . Kelo v. Standards of Review Means (law) Rationally related Substantially advances /related Necessary (narrowly tailored) strike down must show another way to achieve. 3. this ct rules that even though really benefiting Pfizer that there is economic benefits to the town and that is enough for public purpose ± that they can take the land 1. There isn¶t one that is better ii. ii. from private to use for public things ± hospitals etc 2. the ct used a rational basis test even though other fundamental rights of the Bill or Rights use strict scrutiny. public utility.like parks.may not go lower but may go higher. It is much easier to change a state constitution than it is the federal Constitution. iii. The constitution sets the baseline. The issue arose to what is really public use. not a claim that the government cant regulate (DP). d. private ± private ± public purpose. Kennedy ± the swing said its ok here but he may change in the future. Many states in response to Kelo have given their citizens greater protections and freedoms than the constitution has given. The ct ruled that there should be more of an idea of public purpose more than use. The state can go higher with their constitution or through legislation i. City of New London i. Deals with the idea of public use. stadium. alienage (sometimes). v. Very rarely allowed iv. b. the ct allowed a condemnation may be for public use even though the property is transferred from one private party to another. c.

socioeconomic. Still up in the air whether strict or intermediate scrutiny will be used. there must be no other way to achieve this. Shifts to the government after P has shown an intentional discrimination against one of the appropriate classes Stays with the P. Illegitimacy (non marital children) Non-Suspect Class Age. There must be a closer fit to means and the end. General A. What is the classification? 1. non-suspect b. 2. against an appropriate class. Quasi Suspect Class Gender . the government has a lot of deference. there was a move away from the idea of using DP so instead EP became the new way to sue under. alienage. If there is a less restrictive alternative then it fails) The rule must be narrowly tailored. Rational basis ± may be very under or over inclusive. Upheld if substantially related to an important government purpose Not compelling but important. does it appear neutral but discriminatory in its outcome? i. Three questions to ask yourself every time you see a possible EP violation i. what class is being allegedly violated ? a. safety. quasi suspect. Not over inclusive. purposeful discrimination ± most be a motivating factor ± mere disproportionality is not enough. All other by default. Wealth. I. The law is rationally related to a legitimate government purpose.20 compelling gov purpose. morals of the public ± police power) * Default rule * may be over inclusive or under * important notes * fundamental rights ± might seem to not fit EP analysis but because in 1937 there was a virtually end to Substantive Economic DP. TX in 2003 made ± sexual orientation a suspect class therefore entitling it to more than a rational basis review. * in addition Lawrence v. suspect class. Sexual orientation. What is the proper level of review a. Need purpose and impact 1. The state -Doesn¶t need to show right off the bat that there isn¶t a less restrictive alternative. Mental Status. It helps but burden is to respond. Rational basis . Introduction a. (health. P must show that there is no legit reason for the law or that the means (Classification system) are not rationally related to the goal sought. is it facially discriminatory or c. There was not a clear decision on whether it is a quasi-suspect class or a suspect class. Intermediate Scrutiny ± not very under or over inclusive.

There is a claim on virtually any law that there is an Equal protection violation. The three part test . ie ± race. B. i. What is the classification? i. d. is it something that the person cant change and will never be able to change (minus sex change) a. Protects against arbitrariness (RB) ii. illegitimacy 5. look to the idea of whether a person can protect themselves through the political process 3. ii.Three questions to ask yourself every time you see a possible EP violation a. It is not immutable when a person is 15 and they are alleging it. nation origin b. suspect class 2. ex ± the 16 age requirement for licenses. e. sexual orientation To help determine what level of scrutiny is proper ± three questions good to ask. race 2. Strict Scrutiny ± compelling government interest What you need for a claim ± classification of some sort i. 2. Strict scrutiny 3. the time will come where they will reach 16 therefore not immutable. every law is entitled to judicial review and rational basis is the default review used 1. even these laws are judicially reviewable ± there must be some threshold they need to meet even though its very low What does Equal Protection mean (under the 5th A) -?? i. c. Intermediate c. even if the classification is harmless that doesn¶t by itself doesn¶t save it. The reason for this is because there is a classification on all laws. gender. The fact that there is a classification is not in and of itself troubling ± it is if the classification is problematic Harmless classifications i. has there been a historical discrimination against that group? b. then ask yourself if this class . alienage (not a citizen) 3. Intermediate ± important government interest c. Whether it is an immutable characteristic? 1. Does the govt action meet the level of scrutiny? a. what class is being allegedly violated ? 1. Five classification of treating people differently (not a RB test that is used ± suspect class) 1. non-suspect ii. quasi suspect 3.21 b. because of their nature ii. gender 4. Rational basis ± legitimate government interest b.

Strict Scrutiny ± compelling government interest 1. unless proved to be a suspect class or a quasi suspect class this is what is always used ii. Through WA v. Federal ± enumerated powers 2. quasi suspect class iii. This appears facially neutral but only 2% of women fit this build. Intermediate 1. General i. b. safety. Claimant then has the burden to show the legislature intended to discriminate against the class (women) to get beyond a Rational Basis review and become a suspect class. public morals and welfare of society ii. Rational basis ± default 1. casts the net to widely 2. The mentally retarded house and not getting a permit iv. The very text on its face designates discrimination 2. c. Davis we see that this neutral classification gets a rational basis review absent a showing of intent/purpose to discriminate (doesn¶t happen very often). What is the proper level of review i. What constitutes a legitimate purpose? a. Intermediate ± important government interest iii. Rational Basis ± Default test A. maybe over inclusive or a. 1. ct concludes ± that here the only reason the state is treating on group different than the other because there is an irrational prejudice against the group. Strict scrutiny 1. d. What grants this right 1. may only classify those who fit the need to fulfill the laws purpose 2. . Will always fail RB if the bare desire is to harm a politically unpopular group.22 1. has appearance of neutrality but it has a discriminatory impact b. casts the net to small ii. This is the default test ± all classifications get this unless a quasi suspect of a suspect class. State ± police power iii. ex ± 5¶10´ 165lb needed to be a police officer. a. facially classifying or ± a. suspect class c. Rational basis ± legitimate government interest 1. Does the govt action meet the level of scrutiny? i. under inclusive a. Protecting the health. may not be too over inclusive or too under inclusive (have to draw the lines somewhere there is no perfect fit) II. appear neutral on its face but has a discriminatory effect ± a. Therefore there is a discriminatory impact.

it singles out a class of citizens from seeking recourse though the legal system. iii. Test 1. Fritz i. create a separate class in a political process a. law has to be rational is the leg ± rational any legitimate reason why the government is treating the two different groups different a. Romer v. a could have done it cause« Case b. You meet the RB test as long as there is a: (ct may be as imaginary as they want. doesn¶t allow a group to reach out and get political help like the rest of people iv. General i. any law that is designed to single out an unpopular group is a violation of the EPC. The ct ruled that if there is any plausible reasons or congress could have thought « that is enough. US RR retirement board v. presumes constitutional 2. Past a referendum that forbid any enactment of laws to protect homosexuals/ sexual orientation. Three part test 1. ii. legislature doesn¶t have to note why they chose to have the classification) 1. any reason will do ± they did not describe it ± the ct can use their imaginary powers 4. if there is a bad purpose or general incompetence there is no rational basis v. classification a. Evans i. They don¶t have to fully articulate their reasoning for decisions its just all mere speculation and if there is a rational reason then you are ok. target a group a. classification a. iii. analysis ± ct ruled did not have a rational basis. Must it be the actual purpose or is a conceivable purpose enough? a. burden on the P that it is uncon 3. Not consider rational any time a law is done to: 1. Proper level ± RB. EPC doesn¶t allow for a particular group of people to be singled out ??? b. (1996 sexual orientation only got RB) 3. 2. # of years employed ±facial . Don¶t need an actual purpose to be shown for the enactment of law/legislation ii. Dissent argued that this was just a way of people expressing their morals B. plausible reason or 2.23 1. facially ± consider not suspect in 1996 2. There as a change in retirement benefits and there was an EP claim because of edibility requirements ii. may be over inclusive or under inclusive Case b. when taken under RB review.

iii. Regulates indv who are not similarly situated ± covers more people than it needs to. even if in non safety jobs ii. Three part test. Railway Express v. All methadone users weren¶t allot to work for NYC transit. Beazer i. D. General i. Case b. Legit purpose. NY passed regulation that said you cant advertise on a truck unless its your business you are advertising. US Dept v.any plausible reason to achieve this purpose. v. although if there is a rational basis for the legislation then the restriction will be upheld.24 2. now they are changing the distinction ± is this rationally related? NO . iii. iv. RB 3. Tolerance for Under Inclusiveness a. General i. Proper level a. ANY reason is ok ± legislature is thought to be taken things one step at a time. In the end legislature is the best way to determine this ±may not be the best way to get safety in transit but the govt may chose to do it this way if they please as long as there is any rational basis for this classification the SC will not interfere and don¶t have a right to. Ct says ± they already decided what should be enough to stop fraud when the original food stamp enactment was handed down 1. Analysis a. Moreno i. advertising just to non-owners ± facially 2. Level ± RB 3. Claimed that it was under inclusive ± that why did it only limit the non-owning business to advertise. Analysis ± under inclusive. ii. Tolerance of Over Inclusiveness a. Classification 1. Was an EP claim because it was dividing two groups ± if it as all trucks cant have ads it would have been DP. Claimed that it would promote safety on the streets. Food stamps and no longer allowing unrelated in one household to collect ii. in order to fulfill its purpose/goals. Reported govt interest in the change to stop fraud iii. E. The classification was upheld because it will be tolerated under RB. There is a tolerance for under inclusiveness in RB because there is the idea that if there is a rational basis then its ok if its not overly expansive but still meets its goal Case b. NY i. C. General b. Deemed Arbitrary and Unreasonable a. NYC Transit v.

and the areas north of 36. Sanford i. There were constitutional provisions that prevented congress from banning importation of slaves and that it may not be amended b. Dred Scott v. the ct also went a little overboard in Prof mind ± Justice Taney also struck down the Missouri compromise. Scott claimed that he was a free citizen and brought suit in federal ct. Scott a slave owned by Emerson was taken to IL(a free state) Emerson died and the executor of Emerson¶s estate was Sanford. Case d.25 iv. 1819 Missouri Compromise ± when Missouri was named a state (slave state) the areas south of 36. issue with whether citizens and people are the same thing and not meant to be anything different 1. this is an arbitrary classification and therefore it doesn¶t pass the RB test. the ct ruled that slaves and freed slaves are not citizens for the purposes of the constitution ± they are not people or a person but they are Property iv.30 were allowed to choose to be slaves states. Targeting an unpopular group ± so this is a NO.30 were said to be free states. 2. This was the 1st time since Marbury that the ct struck down an act of Congress 2. Post Civil War Amendments i.Classifications based on Race and National Origin A. NO v. the issue was whether Scott had citizen status to sue in a federal ct? 1. there was a lot of fidelity and faithfulness to the text and the text supported that slaves were not people or citizens v. Race discrimination before the 13th and 14th Amendments a. Many argue that this cause the being of the Civil War. ii. After the civil war occurs there are two major amendments that are handed down as a result of cases like Dred Scot 1. Stated that it was unconstitutional because slaves are property and therefore it¶s a protection of the citizens of the US property interest e. this was covered up as discrimination against hippies not to stop fraud. 13th A ± abolishing involuntary servitude (slavery) 2. Strict Scrutiny . Also the fugitive slave clause ± that stated that fugitive slaves had to be returned to their owners c. 1. The framers original intent was not to include slaves in the term of citizen or people. based under Article 3 Section 2 ± judicial power extends to citizens iii. They were all slave owners themselves. Therefore like we say in Romer there may not be legislation enacted to discriminate against one group of people. 14th A ± went beyond the 13th A to say that slaves are citizens and afforded all the rights of any other citizen of the US . Strict Scrutiny III.

Idea of Carolene Products ± it is not fair for the government to discriminate against a single race ± very suspect. General i. Facial Classifications ii. Ct says that it passes a ³highly suspect test´ ± because need to protect our country 1. a. Congress gave the authorization 1942 and the president also put in an executive order 1966 ii. immutable 2. therefore because of the above three things . Race and National Origin Classifications on the Face of the Law that use Strict Scrutiny a. It is still ok because there is an allowance to single out a group for a good reason like protection against espionage and sabotage. American citizens of Japanese decent were put in camps by a military order. Not saying that discrimination against one race is always unconstitutional but it must go up against the most rigid scrutiny. Vastly over inclusive. 4. compelling government interest ± yes protect the home land 2. political authority and power 3. iv.26 B. US i. We didn¶t do this to the Italians and Germans why the Japanese. The test ± didn¶t use in the case but go through anyhow 1. arguably also under inclusive ± doesn¶t raise threats by Germany or Italy focused only on the Japanese. iii. even though it is single group issue like in Carolene products. Dissent ± clearly antagonism exactly what Carolene products was trying to protect from. Only case law against racial minority that was upheld . necessary/ narrowly tailored ± no not really goes way further than it really needs to. If you can find less restrictive alternative that meets the ends (compelling government interest) your means is not constitutional. Standard of Review Means Ends Rational Basis Rational Legitimate government interest Intermediate Substantially related Important (discriminatory impact alone is not enough) Strict Scrutiny Necessary (narrowly tailored) ± Compelling what is the least intrusive way to get to the ends ± it has to by nature be intrusive but make it as least as possible Case b. historically have they been discriminated iv. Means .to end 3. We owe them some sort of procedural due process v. iii. Look to: 1.racial discrimination is subject to strict scrutiny review. Korematsu v.

There may be a lot of stigma placed on this child but it is not the job of the constitution to protect against stigmas.´ C. they are creating there own discrimination feeling by the separation iii. Ferguson i. iv. Painter ± Texas i. Ruled that sending blacks to Prairie law school is not the some as blacks being afforded the right to attend U of TX ± unconstitutional . Divorce case where the white women then moved in with a black man with her child.27 Racial Classifications burdening both Whites and Minorities c. however real. The ex husband was not pleased and brought suit ± the ct usually would defer this to a state ct ± family law case but it was based on race. Equal discrimination doesn¶t mean equal protection. iii. constitution intent was to be color blind everyone ± everyone knows that the accommodations are not equal The initial Challenges to the Separate but Equal idea b. this case basically okayed apairtide iv. This failed the SS analysis d. Canada ± Missouri i. ii. Gaines v. Dissent ± Harlan 1. The ct ruled that we are not allowed to deny custody because of racial matters. Sweatt v. Ruled that not allowing blacks into law school and paying for them to go elsewhere is unconstitutional c. Loving v. The ct ruled that just cause is equal to everyone and doesn¶t mean that it is ok ± just cause its equal discrimination doesn¶t mean that it is Equal Protection. Sidoti i. ii. Separate but Equal a. Loving married a black woman in the District of Columbia and then moved back to VA ± where they were arrested. iii. Discrimination alleged to both blacks and whites. He claimed this violated his EP rights. ii. There was about miscegenation that it was a crime for a white person to marry a black person in VA. iv. He argued that although there is ³equal´ treatment but this separation is a violation of the EPC. Palmore v. 1. Plessy v. ³the effects of racial prejudice. therefore an EP claim. VA i. The constitution was designed to treat people equal and that is what is occurring here. Plessy was arrested for not leaving a whites only rail car. The ct argued the opposite since there is the equal right to use the rail cars ± they may provide for separation and that is not a violation of the EPC. Moved back to VA and brought suit claiming that their EP rights have been violated. cannot justify a racial classification removing an infant child from the custody of its natural mother found to be an appropriate person to have such custody.

It matters because if it is rational basis then it will almost always pass ± if strict scrutiny much harder . What is the classification a. ***** Brown v. also opened the door for remedies in these situations ± we see that in Brown II ± how the SC will enforce their holding D. ct ruled it wasn¶t an intentional discrimination ± that just cause the impact was a bit discriminatory is not enough. Test for when things are facially neutral 1. Davis i. if racial classification appears on the face of the law strict scrutiny is used ii. in contrast if a law is facially neutral and are allegedly administered in a manner that discriminates against minorities or has a disproportionate impact against a race 1. What is the stnd for review? a. iii. Needing a score of 40 on Test 21 to be accepted in to DC police dept. used social science data to show that black students received had feelings of inferiority and thus hindered them in life iv. ± this was the first case where the treatment in the schools was equal but alleging the mere separation was the problem. Board of Education **** i. very ± very hard to prove discriminatory purpose. this case had a unanimous decision that separate but equal is not constitutional in the public school system . is the statute facially neutral? If yes ± then how does the Ct view discriminatory impact? iv. there then must be proof that there is a discriminatory purpose for such laws to be treated as racial or national origin classifications iii. 1964 Civil Rights act ± prohibited discrimination in places of public accommodation. ii. A justice died and Warren stepped in ii. The case was held over from the 52-53 term to the 5354 term. Cases on proof of discriminatory purpose b. a lot of criticism was sustained because of its narrow approach 3. public restaurants etc 2. soon after it applied to beaches. Facially Neutral Laws with a Discriminatory Impact or with Discriminatory Administration a. the decision in Brown was limited to education ±limited to public schools 1. 5 cases that the ct couldn¶t agree on dealing with separate but equal treatments of public school students. OK State Regents i. Can¶t segregate within a class room between whites and blacks a. Need impact and purpose to prove that there is a discriminatory law 1. was upheld because to of the Commerce Clause v. Facial neutral ± yes 2. The Requirement for proof of a discriminatory purpose: i. Washington v. McLaurin v.28 d.

easier to prove than EP violation where you have to prove purpose. For an EP claim you on a facially neutral law ± you need both a discriminatory effect and a discriminatory purpose. almost impossible to show discriminatory purpose . v. 3. Kemp i. c. does the government meet standard of review a. Feeney . ASK ± what exactly happens at the ³facial´ level? When do we decide suspect classifications this ct ruled that it is not a facially discriminatory law ± it doesn¶t say anything about race. Mere disproportionality is not enough to have a discriminatory classification that arises to a suspect class iii. Personnel Administrator of MA v. 3. iv. impact alone is not enough 2. Thompson i. Black citizens sued ii. 1. There was no discriminatory purpose that could be proved because the pool was shut to everyone How discrimination is proven f. doctrine is criticized for this burden Title VII of Civil rights act allow for employment discrimination to be established by proof of discriminatory impact. More black men put to death under the death penalty. Palmer v. This is more of a theoretical question because it will rarely come up ii.cant read the legislatures minds and they will always attempt to hide it. its all just about a test there may be a discriminatory impact but that is not enough !!! ± there must also be a discriminatory purpose shown. Closing of pools instead of desegregating them. iii. If P fails to show both discriminatory purpose and impact it will get rational basis. Black man convicted of robbery and murder of a white person and sentenced to death. therefore all that is needed is that needs to be rationally related to a legitimate state interest. The ct ruled that D failed to show a discriminatory purpose even though the data clearly showed discrimination. Is Proof of a discriminatory Effect also required? i.29 b. Purpose alone is not enough iii. McClesky v. vi. This case shows how hard it is to prove discriminatory purpose Discriminatory Effect d. There is very rarely a discriminatory act brought to the SC that doesn¶t have discriminatory impact Case ± discriminatory effect e. 1. Tries to use data from a study to show that there is a violation of the EPC. Ct implies a distinction between education and recreation. ii. Even though its dicta the ct implies that education id a right and there is no right to pools iv.

MA provided that all veterans who qualify for state civil service positions must be considered for appt ahead of any qualifying non-veterans. a. the historical background of the decision a. ³this requirement of discriminatory purpose implies that the decision maker. substantive departures a. As of 1976 classifications based on gender are afforded intermediate scrutiny ± the fact that women are not a minority may be the reason why its not strict scrutiny iii. Metro Housing Development Corp i. ct ruled that D failed to show that the decision was being made on discriminatory grounds. selected or reaffirmed a particular course of action at least in part ³because of´ and not merely ³in spite of´ its adverse effects upon an identifiable group. legislative and admin history iv. .30 i. Feeney a female civil servant was denied advancement pursuant to the veteran¶s preference . Ct laid out factors to look for to see if there is a discriminatory purpose: 1. mere knowledge that disparate treatment will result from the statute isn¶t enough for purpose. past intentional racial discrimination 3.´ 1. departures from normal procedures 4. D followed normal procedures vi. disparate impact ± never usually enough 2.she challenged the law as discriminatory against women in violation of the EPC. Just cause they knew it would discriminate against women doesn¶t show that was the purpose 2. Ct says that mere knowledge of a discriminatory purpose is not enough. specific sequence of events leading up to the decision 5. Suit alleges that it was denied because it was low income housing ii. how to prove purpose ± legislative history ± pattern of favoring men over women Zoning g. Wanted to build low income housing and they requested a rezoning permit and were denied by the city. It is only an improper race classification ± when it can be proved that purpose and effect of the ordinance is to exclude members of a racial minority from residential area iii. in this state legislature. Village of Arlington Heights v. ii. there is here a clear pattern of unexplainable events on other grounds other than race v. Only when it can be proved that purpose and effect of the ordinances to exclude members of a racial minority from a residential area it is an improper classification. This does not show discriminatory impact ± knowledge is not irrelevant but its not the same as a discriminatory impact iv.

General i. Board of Education II i. Many southern states refused to obey ct order in Brown II. Brown v. The active role was from the standpoint of separation of powers because it tool on a very unique chapter of constitutional history a. the ct should only become involved if schools apply to DC ± presenting their plans for desegregation 2. Griffin ± cant close schools to avoid integration 2. There was a constitutional crisis brewing. Little Rock.31 E. Timeline i. heavier imperative was placed on the south ± because of the past discrimination iii. 1. This is the case that fashioned the remedy to carry out holding in Brown I. AG stepped in to help desegregate c. AK refused to obey and by 64¶ only 1% of the schools were integrated 1. The judicial branch took active role in policy making ± it was needed and it was such a unique situation. how to desegregate the schools ii. some cases you invalidate a law 2. The ct got involved and in 63-64¶ 1. if there is a violation the ct needs to fashion a remedy 1. there was no really other way to deal with it. Combo of ct action and federal law started to be effective in bringing out integration d. others you need to use injunctions ii. 1980. however there was a lot of interaction between the local and the DC ± very active role 3. Remedies the Problem with School Segregation b. iv. this was a lot of distinction between the north and the south 2. Application: Discriminatory use of Peremptory Challenges a. ii. The primary responsibility was with the local school authorities. 1964 things started to really change ii. efforts really started to take hold iv. iii.1990¶s still saw a lot of efforts to desegregate . Problems with Brown II i. Must comply with EP. Title VI of Civil Rights of 1964 prohibited discrimination by schools receiving federal funds. Schools were given a lot of time and flexibility to start imposing this and until the goal was accomplished the ct will retain jurisdiction v. Years of massive resistance. Peremptory challenges that are made on racial grounds are illegal ± no matter who makes them. late 1960¶s much more integration than ever in the past iii. The federal judiciary was given great authority to oversee the actions of local elected officials. v.

Swann v. A flexible quota is acceptable. If you prove that it is genuinely not discriminatory you are fine. About the Metro Detroit area schools. ii. they are ok but otherwise ± they are not. Bradley i. 2. Pitts i. Important cause because it showed how the cts were going to deal with the proper place for the cts in desegregation. (like a ct of equity that has broad discretion. Board of Education v. as long as the quota is flexible and used as a starting pt. Milken v. When Should Federal Desegregation Remedies End? * Argued that it should end when the job is done May end when the school board can show: 1) has complied with the decree in good faith and 2) the vestiges of past discrimination have been eliminated to the extent practicable g. 3. Zoning ± achievement of a unitary school system ± rather than a dual system that is the goal of Brown. Need to leave the jurisdiction open so the cts can monitor the situation. h. One Race Schools ± it may result not because of discrimination. 4.that those areas will just return to segregated schools. Freeman v. The US SC suggests what are proper approaches for school districts. Claimed there was a racial imbalance ii. Have to prove that its based on discrimination. The school was desegregated like the plan had laid out. Trying to figure out when schools no longer need ct involvement ii. Dowell i. ± the SC ruled that it is not ok in a INTER district for the ct to step in. An assignment plan is not acceptable simply because it appears to be neutral.) f. Racial Balances or Racial Quotas ± these were ruled to be a starting pt but only have limited use. a. Charlotte Meklenburg i. iii. the cts are very much involved and have a broad discretion. when local authorities default and don¶t desegregate 2. where is it appropriate for judicial authority to step in? a.32 Judicial Power to impose Remedies in school desegregation cases e. remember it is proper for the local governments to be dealing with desegregation but if they aren¶t ± then the judiciary can step in. Only met certain criteria of the desegregation plan . Proposed an inter-district desegregation plan. Dissent ± very suspicious when ct imposed desegregation is gone. Ct¶s role is done ± it was a unique situation where jurisdiction was left open but it is no longer needed. Transportation/Busing ± its is a normal and acceptable tool but it must not burden the children/ interfere with their education iii. 1. 1. ct looked at four areas to view if desegregation is occurring 1. ± basically what the case stands for.

33 ii. Questions to ask with Affirmative action cases: i. Struck down doesn¶t even meet IS iii. Title VI of the Civil Rights Act ± 4 justices. Missouri v. Even if it is to help not hurt these minorities iv. This is about helping a minority group not hurting them 1. The decision was that the cts will stay involved until all pts are met. Bakke i. Affirmative Action / Racial Classifications benefiting minorities a. What purposes for affirmative action programs are sufficient to meet the level of scrutiny? iii. As time progressed it was clear that this like all other racial classifications will be viewed under strict scrutiny. F. Not the cts 1. Issue ± arises. Two major areas for AA: i. Jenkins i. the school had a quota system for minority applicants. and that the disparity in test scores needed to be dealt with. Intermediate Scrutiny ± 4 justices. Got waitlisted and a minority who had less credentials got in. DC hold that there needs to be advertising done to attract non minority students ± there was no proof if an inter district violation 2. The compelling reason is usually only found if it is trying to remedy the entities OWN past discrimination (by the specific person ± not just in general/society) ??? may be wrong b. Applicant to UC Davis med school. ii. 1. 1) Education ii. What techniques of affirmative action are sufficient to meet the level of scrutiny? c. ii. but only in the areas that have not be complied with. 1. Ct reviewed and ruled that it was the states decision on three things. Talk about this being a benign characteristic ± discrete insular minority iii. ct ruled that it wasn¶t permissible for the DC to impose these ± that these are matter for the local authorities at this pt i. ct ruled no ± same test ± Strict Scrutiny Leading up to Strict Scrutiny as the Test d. 2) Construction contracting iii. This is the only time the government may have an interest considered compelling enough to justify classifications based on race ii. there was an order to increase salaries 3. whether it is proper to have two different levels of scrutiny based on the area AA is being applied to. Struck down statutory violation . Strict Scrutiny 1. What level of scrutiny should be used for racial classifications benefiting minorities? ii. General i. Government has the burden of showing that the AA program is narrowly tailored to achieve a compelling government interest a.

We can ignore past discrimination. Test SS 1. Test applied was SS. SS is used to smoke out ± illegitimate used of race as a classification and therefore should be applied iii. Construction contract. . 1.upheld Croson ± 1989 violation of EPC.34 iv. The minorities in Richmond were very low. 2. Compelling government interest ± End ± Remedial a.1995. There was no attempts to find a less restrictive alternative iv. Strict Scrutiny ± 1 justice Powell. Narrowly tailored ± way to over inclusive a. A lot of people on city council were black. Argument arises that we should apply lest strict of a standard if you are taking actions that are counter to you own. Need a demonstrable showing of past discrimination. Dissent ± Marshall. this opinion drove policy makers and federal district cts. v. Random inclusion of all these minorities that may not even have ever lived there. There is a major difference between those racial classifications that help and those that harm and a different test should be used. Need to prove their was some sort of discrimination in this city/ construction industry that was particularized. Classification is Racial and its Facial. Fails.intermediate scrutiny used Adrand. 1. ii. 30% is a random number b. Applied the Strict Scrutiny test Metro Broadcasting ±1990. y This was general complaint of a discrimination and that is not enough 2. Richmond v. The Emergence of Strict Scrutiny as the Test ± Construction Contracts e. they used Powell as the basis for their decisions but under the IS test Affirmative Action (construction contracts) ± distinction drawn Federal action State action Fullilove ± 1980 ± AA violation upheld (10% Wygant ± 1986 ± upheld violation of EPC set aside) Paradise ± 1987.overruled Metro and applied Strict Scrutiny Why there is a distinction drawn between state and federal ± because congress was granted by the 14th A the power to supercede the state laws if needed. diversity is a compelling government interest (end) but the means is not narrowly tailored ± the quota system. We should look at the past history of this town and view that in context. 30% of the work is set aside for minorities. but he argues this is the proper test not IS. JA Croson ± Remedial i.

Grutter v. Just treat us all the same. Were there any less restrictive alternatives? ± the majority said NO iii. State Actor question . Narrowly tailored ± Means a. v. Ruled to be a special niche and should be given deference ii. Case heard in 2003. Ct handed down that ALL people are subject to Strict Scrutiny iii. Dissent . Race was only one factor. No quota. Gatz i. No lower standard was handed down ± Strict Scrutiny was ruled to be the test. 1. Individual assessments. Bid put in but denied given to Hispanics because of a congressional bonus plan that gives $ to general contractors who hired minorities ii. Flexible b. Used terminology like great Deference to the university ± that is a RB idea. Bollinger i. Dissenters ± critical mass is a cover for a quota system 1. Education Issues ± Non Remedial g. iv. b. Quoted Douglas in saying ³Do nothing with us´ otherwise stigmatization occurs. Compelling government interest ± Ends a. i. It will be interesting to see what happens when this 25 yrs is up. The law should be colorblind. Said it was too much like a quota. by treating us different you are perpetrating difference. This was the case that decided what test would be used in AA education cases. Thomas argues that any system would only harm. The Tests are more like a spectrum and not discrete categories i. although there was a complaint that it really wasn¶t SS the test that was used. Pena i. It was a really hard RB review ii. system. AA plan using critical mass as an indicator for admission. Grutter ± was a really lack SS review j. O¶Connor talked about how long this should go on ± she said it doesn¶t need more than 25 yrs. Romer v. Argued about the importance of diversity in the legal field. that you should just leave them alone. Benefits of diversity in education 2. Ct struck down AA plan at U of M undergrad ii. a.There is no moral or constitutional equivalence between a policy designed to perpetuate racial subjugation and one designed to eradicate it.35 vi. Concurrence ± don¶t always need to remedy a past wrong ± argument for the fact that it could go to remedy a possible future wrong. Test ± SS (race based AA programs) 1. U of M law school. h. Concurrence ± Thomas (black). Adrand Constructors v. Evans was an example of how strictly RB will be followed. f. iv.

Ct states that race must be shown as the predominant standard otherwise RB will apply. 1. past discrimination. ³Real Differences´ vs. 2. immutable characteristic . overboard generalizations´ Usually overturned b. racial ± SS 2. looked at the fact that women where a politically underrepresented. General i. race because of the standard being imposed. 2. Cromartie i. The level of scrutiny is Intermediate 1. the challenger must demonstrate that race and not politics was a predominant consideration. ii. creates a distinction from racial classifications ± easier to affirm Affirmative Action with regards to gender vs. 3. Must have a facial classification based on gender or a facially neutral law with a discriminatory purpose and impact a. ** if it is neutral RB will be used unless you can prove the purpose of the classification was to discriminate against gender. This requires showing that the legislature¶s political goals could have been achieved without consideration of race. (like proving purpose ± hard to do) iii. immutable characteristic. Redistricting allegedly based on racial classifications.36 i. politics ± RB Intermediate Scrutiny G. Easley v. Four justices took the position that gender classifications should be based on SS 1. This is a very difficult burden to prove. Frontiero v. What if MSU did the same? ± arguably a private law school but soo entangled and intertwined that could say really acting like a state actor. taking the idea that gender like racial classifications are inherently suspect and must therefore be subjected to strict scrutiny. 1. Females in the military had to prove that their husband was ³really dependent´ upon them before the husband could receive benefits. when redistricting is based on racial classifications and not politics is when it is unconstitutional. Drawing Election Districts to increase Minority Representation k. Gender Classifications a. Richardson i. Men didn¶t have to prove the same. women have same arguments as races: discrete and insular minorities (Carolene products) a. ii. Stereotypes (this will not be allowed) Usually upheld ³old notions´ ³archaic. 2.

Argued that it was a gender classification. VA i. the purpose of the plan was $ . Two basic ways to prove gender classifications i. Ct applied IS. CA disability plan that doesn¶t cover pregnancy. political under represented c. this racial classifications was found to rely too much on gender stereotypes and the ct will not uphold those 1. there needs to be real differences not stereotypes. women up are not up to the task and certain things cant be modified vi. iv. vii. VMI ± military academy male only and females challenged. The ct found that it was unconstitutional to exclude women.it was cheaper. Ct stated that ³parties who seek to defend gender based government action must demonstrate an exceedingly persuasive justification for that action« the burden is demanding and it rests solely on the state´ 1. The argument failed because there was no evidence of a discriminatory purpose. this imposed a very high standard for the State¶s to meet iv.37 b. history of discrimination iii. a. The gender classification can exist on the FACE of the law 1. Gedulig v. iii. ii. Boren i. the state argued that administrative convenience was their reasoning for the program and the ct ruled that wasn¶t good enough even in a RB review. in this case we saw a very strict application of IS. US v. v. however since there was no majority in this case ± the level of scrutiny was still up in the air The Emergence of Intermediate Scrutiny c. Skipped but showed that the SC agreed that Intermediate Scrutiny was appropriate level of review for gender classifications. the law in its very terms draws a distinction among people based on gender ii. Ct didn¶t agree they said there was no evidence of this benefits 2. very. single sex education ± has important benefits. A little bit less than SS was applied . Facially Gender Neutral ± 1. the reasoning of VA was not adequate 1. . 1. Craig v. Aiello i. Dissent ± there is a real value in single sex education How to prove Gender Classifications e. d. very hard to prove that there is a discriminatory purpose f. a. proving a gender classification requires demonstrating that there is both a discriminatory impact to the law and a discriminatory purpose behind it.

v. 1. important government interest ± purpose ± deter teenage pregnancy. men need an additional deterrent women already have a natural deterrent pregnancy. Goldfarb. Administrative convenience was not a valid reason. 2. Mississippi v.38 ii. Statutory rape statute ± boy couldn¶t have sex with a girl under 18 but a girl could do whatever she wanted. Those who are pregnant and those who are not. ct ruled that sex is not a proxy for need ± that this idea is way to over inclusive h. Dissenters so clearly discriminatory only on women. Substantially advance ± not narrowly tailored enough. a. Gender based discrimination IS applied. (besides they do allow men to take classes just not for credit. Too over inclusive. means ± substantially advance ct says no benefit to single sex education. pregnant women and non pregnant people iv. Michael M. Test ± IS 1. The nots are made up of men and women. Orr i. 2. ii. 1.means is acceptable. Superior Ct of Sonoma County i. Test ± IS 1. There already was individualized hearings therefore not much additional the state needed to do. not solely men. important governmental interest ± providing for women who have a disparity in salary as compared to men. there was not a gender classification and therefore it will not be viewed under IS but instead warrants only RB. j. preventing illegitimate teen pregnancies ± important objective. On its face ± yes. ii. (later overturned by statute that pregnancy is discrimination based on gender) Gender Classifications based on Role Stereotypes * usually upheld if trying to remedy past discrimination or preventing teen pregnancy * not upheld if administrative convenience. Orr v. Passes RB. All overturned things based on the notion of gender stereotypes i. 2.) iii. Wengler i. important government interest ± make up for past discrimination against women. . substantially advance . This ct talked about a less restrictive alternative but don¶t usually see that with IS) iii.the spectrum idea of the tests and not to clear cut. Statute required only husbands to pay alimony upon divorce. Test 1. Weinberger. again we see the phrase ± great deference given to legislature . Hogan i. Male denied admission to women¶s nursing school ii. Ct reasoned that there are two groups and women are in each therefore not gender based. ct ruled that this only perpetuates stereotypes ± that nurses are usually women and not men. g. iii. iii.

means ± substantially related yes the purpose is to fulfill the combat positions a. Dissent ± no evidence that gender neutral law wouldn¶t be equally effective. (normally don¶t have to show less restrictive alternative with IS. There is no violation of EP. Webster i. H. Upholds distinction of SS giving old age benefits only monthly wages. Illegal aliens/undocumented alien ± Not protected by the constitution (exception Pyler) 1. 1. following the policies and statutes of the military with regards to women iii. So that there is a higher average. They argue that the government lawyer needs to show real differences vs stereotypes Gender Classifications benefiting women as a remedy l. This is allowed because Privileges and Immunities clause was killed out by the Slaughter House cases and therefore the term citizen isn¶t applicable because EPC and DP both have the term person and not citizen. b. iv. Undocumented aliens (children of undocumented aliens get RB though) ii. exceptions: to SS with aliens a. Almost always Strict Scrutiny is applied. Congressionally approved discrimination c. The ct ruled that it wasn¶t based on stereotypes but real differences that can demonstrate that women really don¶t work as much as men cause of child rearing etc. with SS you do) k. Alienage Classifications (people who are not US citizens ± legal aliens) Remember that any time a regulation is imposed that classifies people there is a possible claim for an EPC violation. important government interest raise an army quickly 2. a. Legal alien/ documented alien ± Strict Scrutiny v. Test ± IS 1. Discrete insular minority (Carolene Products) a. ii. persons yes ± citizens no . Califano v. Matters involving self-government ± RB test applied. Rostker v. ii. History of discrimination iii. Women and the draft. Immutable characteristic (not really) b. There are various non-combat places that women can fulfill. What makes a suspect class. suspect? 1. Political power c. Dissent ± this doesn¶t rise to the level if IS. Allows women to exclude more lower income years than it allows men.39 iv. General i. Goldberg i.

compelling government interest . Foley v. the right to vote 2. 1. there is a lot of discretion in policing and self governance ideas. Idea being there is a lot of weight given to police an are actors of the government. democratic society is ruled by its people the ct has declared that a state may deny aliens (only need RB) 1. General i.no therefore it is a violation of EPC. General i. iii. serve on juries 4. state alleged compelling government interest. Self-government and political process ± Rational Basis is the test not SS. Idea being that membership has it benefits. Graham v. Richardson i. probation officers. Matters involving self-government c. only rational basis review is used for state alienage classifications related to self government and the democratic process Classifications based on governments interest of itself. hold political office (mayor etc) 3. teachers in public schools (elementary/secondary) 6. 1. Connelie i. iii. There is an exception to SS as a general rule to cases dealing with aliens. State denied welfare benefits. Matters that go to the heart of representative government 2. haven¶t been in the US for 15yrs. Only RB will be applied for a police requirement that they be citizens of the US. Such a part of the nature of being a citizen that aliens may be excluded under RB test instead of SS because the government should be given deference Congressionally Approved Discrimination e. This is not narrowly tailored. ii. ii. d. therefore they are no considered a suspect class and therefore subject only to RB Strict Scrutiny as a General Rule b. Another exception to SS as the usual test for alienage classifications is where the discrimination is a result of a federal law. ii. However there is a less restrictive alternative to this that would achieve the same result. iii. a. . The governments right to control immigration requires judicial deference and therefore only requires RB review if congress has created the alienage classification or it is the result of a presidential order. becoming police officers 5. ii. Test ± SS 1. therefore RB is applied. economic reasons. Under Article 1 §8 Congress has the right to create uniform laws with regards to naturalization.40 2.

This is a suspect class because of the Carolene Products idea 1. If it was a state law ± apply SS. Doe i. There is a lot of focus on the purpose behind a statute tied to illegitimacy ± wont uphold laws that are meant to punish 1. 1. with relation to $ matter a. this is a hybrid case ± category all of its own. Someone who lived for 2 yrs challenges ± only need to apply RB since it is a federal law. laws that provide NO benefits to ALL non-marital children a. ii. iii.41 iii. SS/IS ± fiscal concerns are questioned a bit closer iv. the burden of lack of education is enormous and lasting. always struck down 2. history of discrimination 2. usually seen in intestate succession problems . Case where the children of undocumented aliens were being denied right to education. I. If it is a state or local law ± SS applied. Undocumented Aliens and Equal Protection f. Plyer v. 1. ii. state alleged that there was a need to preserve resources. The test is therefore IS ± don¶t clearly lay out this test but say that substantial goal of the state to disallow children of undocumented aliens to not attend school is not constitutional. The ct ruled that this should not be reviewed under the standard RB with regards to undocumented aliens. Intermediate scrutiny standard is imposed 1. that these children are an innocent party that is being punished. this has been ruled to be ok if not overly restrictive. laws that provide NO benefits to SOME non-martial children a. Discrimination against non martial children ± illegitimacy a. example ± Congress enacts a statute limiting Medicare/Welfare benefits to legal aliens who have been residents of the US for at least 5 yrs. Must be a federal law. 2. RB ± fiscal reasons are usually ok since you defer to the state b. will get a case by case review with IS being applied . the children have no control over their status and 2. 1. General i. that is was unlikely that these children will remain in the state. it gets this review because it is education (even though its not a fundamental right) it is still important enough and b/c of the impact of lack of education will have on society there is need to make it a suspect class. ex wrongful death suits for a parent who dies iv. a. Two important distinctions 1. immutable characteristic iii.proving paternity.

Age Classifications a. Welfare i. Only get RB not found over time to be a suspect class ii. . iii. Murgia i. Est 1986 that it gets RB ii. This is way to over inclusive. If we automatically presume something to be unconstitutional but now we have RB so it is presumed constitutional thus makes regulation based on a disability easier to uphold. Right to education doesn¶t merit heightened scrutiny but if its based on race then it gets IS. not a discrete insular minority iii. Sexual Orientation i. b. Discrimination based on Wealth/ Poverty i. But be aware if classifications are intertwined. Fundamental rights require that SS be applied to them. Dissent ± there is a a lot of history of discrimination based on age and therefore the test should be SS. PO¶s had to retire at age 50. The ct used a RB test. The ct found that it was too over inclusive and under inclusive but that this is allowed because it is a RB test. ______________________________________________________________________________ Fundamental Rights Under the Equal Protection and Due Process Clauses I. Again see the Carolene Products idea b.42 Other Types of discrimination that get only Rational Basis Review J. Discrimination based on disability i. Allegedly because the idea that there is a lot of physical activity ii. Only RB unless involves an allocation of a fundamental right b. What is a fundamental Right? A. If they are not found to be fundamental rights then RB is applied to them. TX leads us to believe that there might be more of a heightened scrutiny analysis. Argument is given that heightened scrutiny would actually make it harder to help disabled people. Housing. General a. K. There was found to be a violation of a fundamental right to date who you want d. Doesn¶t really matter if you bring a fundamental right question in through DP or EP. c. Others a. Long durational waiting periods to take advantage of state privileges e. General i. Unless eligibility is based on suspect criteria (race) or burdens fundamental rights (interstate travel) then they it will get SS ii. Only RB ii. 1. MA Board of Retirement v. Education. There is no IS in this area. However as talked about in class Lawrence v. Governmental Employment i.

then use Rational Basis is applied (economic social interests) b. 1. Fairness in criminal process (Crim pro issues) iv. 3. There was a phobia for a long time and still possibly today to bring anything under DP because of economic substantive due process ii. If law denies right to some. If law denies tright to everyone. rights protecting family autonomy 2. education. c. the discrimination can be challenged as offending EP or violation of the right can be objected under DP. press. IS the constitutional right infringed? (or is infringement substantial and direct) i. If yes. Non Fundamental rights i. sexual activity 4. What are you fundamental rights (all these will get SS if the infringement is substantial) i. apply the appropriate standard and analysis ends here if you have a constitutionally protected liberty interest. while allowing it tothers. Some liberties that the SC have held that are so important that they are deemed to be ³fundamental rights´ and that generally the government cannot infringe them unless SS is met. If not even a constitutionally protected liberty then. Interstate movement and travel (residence requirements for vital services) iii. 2. reproduction / procreation 3. Nature of decision at issue. contraception 7. custom. then DP is best analysis. If yes. 2. Difference b/w DP and EP as a basis for protecting fundamental rights is how Constitutional arguments are phrased. assembly. If no. disability benefits. petition) ii. Strict Scrutiny ii. The government action must be necessary to achieve a compelling purpose. medical care decision making / death 6. If no. sexual orientation 5. Rights to privacy 1. 1. housing B. ii. First Amendment ± (speech. History. religion. i. the Constitutional issue is whether the governmental interference is justified by its purpose. Other justices ± reasoned judgment. marriage e. Ask it if it is a constitutionally protected liberty interest. RB . The test to analyze a fundamental right question a. move to (b) ii. Is there a fundamental right? i. Voting (beyond age. residency. If yes to a D and S. d.43 i. abortion 8. citizenship) v. Welfare. If it is a right safeguarded under Due Process. tradition.

Zablocki v. there is an EPC (race) violation 1. if a prohibition ± substantial and direct. Effectively prohibited people from marriage ± therefore was substantial and direct b. What is it about marriage ± basic civil right of man basic to our survival to deny on worthless classifications deprive right of fundamentals to people . If not substantial and direct then maybe make a DP claim instead. denied to everyone ± DP violation a. EP analysis ± 1. ii. Redhail i. Family Autonomy A. Stanley v. IL had a law that stated that the bio father was not enough to prove right to custody 1. 3. 2. then there would be substantial and direct infringement. Substantial and direct infringement? a. Is the standard of review met? i. Do you normal SS analysis II. mother dies. SS then is too be applied. Right to Marry a. Right to Custody of one¶s own natural children a. b. VA i. End ± compelling government interest ± help people to provide for their children. IL i. Refuse to grant marriages if not paying child support or proving that they wont stop paying it in the future. b. Idea that you cant unduly burden a person. c.preventing marriage has no causal connection to the goal of providing for children. Loving v. Fails SS test ± unconstitutional B. if there is a question of substantial and direct ± will error on it being a prohibition and not a regulation. Father claims right to custody of the natural children ii.44 iii. Means ± narrowly tailored. not a tight fit. fundamental rights ± yes (historically one) 2. 1. There was no device that made it more likely that children would get support they needed through this action. need both a bio link and . But best to argue it all and see what sticks. Key to this area: look to see if whether it is an absolute prohibition or it is a regulation. Unwed father. c. The test ± SS a. how to chose where to place your claim ± doesn¶t really matter but best to make the argument that is easier to make. ± there is no nexus. if a regulation ± not substantial and direct probably 3. State certainly has an interest in this. denied to some people ± EPC violation 2.

Amish parents were not forced to comply with compulsory school attendance laws. City of Cleveland i. D. this statute extended beyond what normal statutes of the kind prescribe and included even blood relatives like grandparents. There is an expansive reading of the term liberty iii. Held to be a violation of parental right. 98% change it is Michael baby. Teacher taught German to a kid and was convicted. ii. the legislature may not govern how a parent shall raise their child iii. Therefore the ct said that since they are related the statute needs to be Strictly Scrutinized. CA has an irrebutable presumption that a child is the husband if born during marriage and there is no evidence of impotence or sterilization. if prove above two things then there is a right to custody of one¶s own children b. 2. also how many hrs a child may work is set by state 3. Notes i. Michael H v. History and tradition go to support the martial home and this is where the liberty exists. must attend school X amt of days . Pierce v. Gerald i. Right to Keep Family Together a. Ct hold that society is meant to protect the normal family structure and not to promote these activities.45 2. iii. This case is firmly in the Lochner era and you see the strong idea against prohibitions against people by states. b. c. Gerald is her husband. Yoder i. The ct ruled that the parents have the final say. doesn¶t have to be a zero sun game. ii. proof of an ongoing relationship iii. C. ii. State can¶t teach foreign language to children who aren¶t in 8th grade or above. The ct ruled that it is the fundamental right of the parent to control/ instruct the upbringing of their children. Forced children of a certain age to go to public school. Great deference to the parent and SS will be applied. have to understand complexity of rights. Ordinance in city that prohibited # of non nuclear family members that could live together. Lady with the husband and all the bf. ii. Keep in mind parents don¶t have the ultimate final right 1. d. This must be viewed under SS and otherwise it will fail. This ct laid out the idea of only in the cts morality iv. Society of Sisters i. If they are unrelated like in East Lansing there is a lot more deference placed on the legislature decision. the ct will protect against abuse and neglect. Dissent ± time are changing . ii. Didn¶t want to have children in school after a certain age. Moore v. NE i. The Right of Parents to Control Upbringing of their Children a. iii. Meyer v. She cheated on husband and got pregnant.

Griswold v. v. ii. Banned contraceptives from being purchased or being talked about for advice purposes. Skinner v. Chicken thief who was being forced to be sterilized because legislature decided this could occur because it was a crime of moral turpitude. Rule-A parent has a fundamental right in the care. Granville i. The issue was that only blue collar criminals were being sterilized because charges like embezzlement (white collar crimes) were not considered a crime of moral turpitude. ii. custody. iii. A state which arbitrarily excludes a class from its purview violates 14th Am EPC where fundamental rights are involved. OK i. 1. Review DP vs EPC analysis and the difference if any ??? B. There was a distinction as an EPC because again fearful of the DP clause. Griswold was found guilty of assisting and giving advice on their use to a married couple. and control of their child. iv. Buck v. iv. e. v. . The Right to Purchase Contraceptives a. 1. We see the competing rights. Cts have ruled that it is inappropriate for state to get involved. The mother has a constitutional right but does the Gparent. Not necessarily turning a blind eye. the state decided who was feebleminded 1. The statute allowed for visitation rights to anyone that would be in the best interest of the child. Indirectly overruled via Skinner b. 2. ii. Reproductive Autonomy A. CT i.46 ii. Troxel v. The statute allowed the cts too much deference in determining what is in the best interest of the child.arguably no. Husband committed suicide and widow doesn¶t want to give the grandparents the full request of their visitation rights. Institutionalization 1. But this was pre WWII 1. Classification is not equal but distinct so EPC analysis applies iii. This all changed after WWII. Forced sterilization of feeble minded people. Concurrence said should be a DP issue. Court upheld Stat¶s right to have a sterilization technique. Grandparents don¶t have a fundmanetal right as tdo parents to control upbringing of child. The ct said this is a violation of the mother¶s fundamental right to control the upbringing of her children. they might have an interest but not a fundamental right. Right to Procreate a. III. Bell i. Should parents activity be subject to constitutional limitations ± or should we give parents the assumption that they are looking out for the best interest of their child. but not getting into it unless it is really necessary.

iv.) a. Access to contraceptives must be the same for both unmarried and married people a. Not allowing people who are unmarried not to have kids. but the right to is considered a constitutional protected liberty interest b. iii. understand that they will have kids. if yes go to 2 ii. 1. State argued that probhiting distributing contraceptives will stop sex. Is there a constitutional liberty 1. b.47 ii. finds privacy in the BofR ??? 2. in whether a women would like to have an abortion. The ct found that all the 10 Amendment that make up the bill of rights that those together as a penumbra make up the right to privacy that allows for the purchase of contraceptives. Baird i. This ct talks about for the first time the 9th A and how it says that there are additional un-enumerated rights that may be protected. Not of an established lik or proof that this was acceptable. Current Rule: STATE HAS RIGHT TO CHOOSE c. to be free from unwarranted gov¶t intrusions into matters so fundamentally affecting a person as the decision whether to bear or beget a child. Just because there isn¶t any constitutional basis for the fundamental right (enumerated rights) doesn¶t mean that it isn¶t an un-enumerated right. Majority ± the ct shall take it upon themselves to 2. iii. married or single. 1. Abortion is not a fundamental eright. Does the action by the state create an undue burden to the right to have an abortion? 1. Talked about how just because it is not a explicitly laid out liberty in the constitution that it isn¶t necessarily then not a liberty. The Right to An Abortion (better stated the right of an individual to make a decision free of interference of the stat. Test ± Issue Right to have an Abortion ± Hybrid case i. Violation of DP right to privacy applies to everyone equally not just married couples have the right. 1. Eisendstat v. Ct felt the same as above ± there should be no difference in married or unmarried couples. Courts says no go C. Dissent ± it is be up to the legislatures (because they are elected by the people. If the right of privacy means anything.) b. it is the right if the individual. not looked at any longer as a fundamental right 2. Means: Stop sex prior to marriage. Same issue as above but in relation to unmarried couples-hierarchy of who can get contraceptives²crime to give them to married people ii. A state law that makes it a crime to give contraceptives to an unmarried person violated EPC 3. Ends: marginally stopped it. ± the issue really surrounded then who determines these additional rights. if yes go to 3 (struck down) .

If there is an undue burden ± fails the test and it is struck down d. There was an asserted interest made by a woman in the state that she should be free from state regulation that prohibits her from having an abortion. this ct says that it could be found in the 9th A BofR as an EP claim or it may be under DP (this ct for the first time since Lochner) find it under DP. Roe Up and including 1st trimester State Compelling Interest? NO (no absolutely no regulation) State may not ban or een closely regulation abortions. Fundamental right ± so rooted in our traditions that we regard them as fundamental. the 14th A. After fetus becomes viable the state has After the 1st trimester After viable begins (around 7months) . 1.totally. iii. TX law that bans abortion. Say this right like in Eisendsat and Griswold is the right of privacy 2. Roe ± Due Process Clause a. US SC could still find if they wanted to it in the PI clause because the con still hasn¶t been amended to great rid of it.48 2. Roe v. if no ± then not a violation of right iii. General i. e. ii. the ct has held that regulation limiting these rights may be justified only by a µcompelling state interest¶ and that legislative enactments must be narrowly drawn to express only the legitimate state interest at stake. Issue arises ± is there a fundamental right that may be asserted that would allow for a women to receive an abortion. ct laid out the SS test ± ³where fundamental rights are involved. this broke ground of the revival of DP. Wade i. See the resurrection of the notion of privacy ± thought probably should be found in the Privileges and Immunities Clause ± giving all citizens rights but instead have been found in various other places 1. THIS DECISION MUST BE LEFT TO THE PRENANT WOMAN AND HER PHYSICIAL B/C OF THE LOWER DEATH RATE OF MOTHER Yes (mother¶s health) ± limited prohibition State may regulate if there is a risk to mother¶s health (something like to request that mother have abortion in hospital rather than clinic) Yes (mother¶s health and baby¶s life) outright prohibited acceptance with exception for mother¶s health.this ct found that it is under the 14th A DP claim iv. 1. Griswald ± penumbra of the Bill or Rights 2.

An undue burden exists and therefore a provision of law is invalid. Webster i. Or some other constitutionally protected interest ii.´ 1. Issue really arises when does a life begin that we need to protect like any other life is protected by way of laws. Hybrid test for abortion a. It may regulate and proscribe abortion. This ct however overruled the SS test that is in Roe and made a Hybird of sorts test. The proper role is for the state to deal with this 1. some judges retired and the vote changed g. Planned Parenthood v Casey i. vii. Dissent ± to narrow. there is some aspect of reliance 2. Only where a state regulation imposes an undue burden on a woman¶s ability to make this decision does the power of the state reach into the liberty protected by the DPC. stnd of viability still works ii. b. it is purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. (there is no need to completely overrule Roe but allowed more protections ± around viability primarily) 1. See above for the layout. ct refused to rule on this issue vi. but the option must be permitted when necessary to preserve life and health of mother (medically necessary procedure) v. Fundamental right? 1. 1. The ct looked like it was aligned to overturn Roe but it didn¶t. ³a finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a women seeking an abortion of a nonviable fetus. Test i. the ct is acting like legislature with these particulars. Tried to overrule Roe ± but fail. Was standard met . Ginsberg article: agreed with court up until the trimester determination f. the ct reasoned that in order to overrule the finding in Roe has to be deemed unworkable and it is not found to be. Substantial and direct obstacle iii. the majority responds to this that the majority of the people in the states can be oppressive and that the minority needs to be protected and that leaving it to the states is therefore not good enough. The SC is only to make broad determinations ± too narrow. c.49 a compelling interest in protecting the fetus. no development in constitutional law making it obsolete 3.

this ct rejected the trimester schedule ruling that the line at the point of viability. spousal consent. ruled that these are okay. 1. iv. parental consent. Carhart i. ii.50 =if yes to all. . Banning on partial birth abortions and handing down what type of procedure needs to be used. the issues with abortion should be taken up by the people in their processes of a democratic system. j. Dissent argue that the state does have a right to regulate this way. iii. 1. It is in the discretion of the state not the cts. Claimed and EPC violation based on a wealth classification ± this failed. pre case ± not ok Funding of Abortions k. need to provide an option for the health and safety of the mother. Cause it only need RB review. Roe i. Other regulation issues i. And this didn¶t so it was a violation of the right to be free of undue burden to have an abortion. iii. Roe didn¶t declare an unqualified constitutional right to an abortion. Case was challenging the statute that didn¶t provide funding for abortion to indigent women but gave funding for prenatal care for pregnant women EP argument. Roe gives women the right to choose an abortion or not. Important to note this case never called right to an abortion a fundamental right but instead a constitutionally protected liberty. Used the Casey test of undue burden. constitutional liberty v. reporting requirement. Maher v. up to 24hrs 2. It states that it protects the women from unduly burdensome interference with her freedom to decide whether to terminate the pregnancy. then it is a fundamental right analyzed under Strict Scrutiny =If choice to choose abortion=then use undue burden analysis iii. before Casey they were not ok ii. informed consent 1. Government regulations on Abortions i. The ct ruled that this was an undue burden and that the restriction cant be upheld. The right to choose abortion means that this right is guaranteed to women. h. Stenberg v. The case raised some issues on regulation in abortion cases: informed consent. 24hrs waiting period. dissent ± states my permit abortions on demand but the constitution doesn¶t require it. ct says more likely ok ± Prof said ok 2. gave to little interest to the state vi. ii. Waiting periods ± Akron 1.

ii. ± ideally the ct ruled it should be both their decisions but this is always reality. iv. Danforth i. Dissent ± form of coercion to indigent women to make them meet their moral standpoints and they hang their hats on the issue of funding. Spousal Notification m. The ct ruled that this is an undue burden. this is a policy decision and there is no connection to the argument that they will provide prenatal care but not abortions. v. Spousal notification issue ± the ct found that a vast majority of women do consult with their husbands but sometimes there are good reasons for not (abuse etc) ii. The Constitution does not require a state to pay for non-therapeutic abortions when it pays for child birth vi. State cant require spousal contest as a condition for abortion during the first 12 weeks of pregnancy because then the spouse has veto power that the state doesn¶t even have. Spousal Consent l.51 1. Again the ct stresses there is no right to an abortion ± there is just a right to be free from interference and right to make the decision if she wants to have the abortion without the government breathing down their neck. Planned Parenthood v. . (Bellotti) Notice: yes but only if a judicial bypass??? need to ask him Spousal notice/consent No ± both are an undue burden (Danforth &Casey) Whose interest should prevail?? What these cases are really trying to determine Interests potentially vitiated? Pre Roe Post Roe Women¶s interest X no * yes State¶s interest * yes X No (pre-viability) * yes Pre-viability * yes thru the state X No Post viability * yes thru the state * yes allows state to prohibit as long as they have a health and safety exception. a substantial obstacle to the women¶s liberty of having an abortion and therefore is unconstitutional. This was decided after a balancing of the woman and the man interest and finding that the women has a greater one cause she has to carry the baby. Casey i. Post Casey 24 hr wait Yes allowed ± not seen as an undue burden (Akron) Informed consent Yes allowed ± not an undue burden Parental notice / consent Consent: yes but only if there is a judicial by pass. Planned Parenthood v. the Ct rule places no obstacles that are absolute that would prevent a women to get an abortion 2. The women can still raise funds on her own.

Harper± however a prisoner has been found to be able to restrict the taking of anti psychotic drugs Right to refuse unwanted medical treatment b. Jacobson v. Bellotti v. MA ± showed a restriction of this right ± that mandatory vaccinations are allowed for the good of society iii. General i. Issue came up do the parents have that right? The vegetable women has the fundamental right to resist medical treatment but she cant speak up for herself now. Director of Missouri Dept of Health (ask Bartell if this is a fundamental protected right or a constitutionally protected liberty interst?) i. A pregnant minor is entitled to such a proceeding if she can show either: a. Baird i. or b. That she is mature enough and enough well-informed to make her abortion decision. ct ruled that they needed CCE of the fact a person wouldn¶t want to be kept alive iv. Cruzan v. every minor has an opportunity to get a judicial override if it satisfies the above-mentioned exceptions. Women who was in a car accident and was a vegetable ± her parents wanted to take her off life support. a. 1. If the court approves. iv. Why we now have powers of attorney and living wills 2. The Constitutional protection of Medical Care Decisions a. The issue then arises what do we need to show that she didn¶t want these life sustaining measures to continue? 1. ct used the terminology ± substantial obstacle Parental Consent and Consent Requirements n. Dissent ± judge makes final determination this is a very weighty position for the judge to have ± not proper D. there is a need to honor the parental role in their upbringing iii. The ct showed reasons why this was required 1. Historical there has always been a right to refuse unwanted medical treatment ii. independently of parents¶ wishes. it must authorize minor to act w/o parental consent. children are vulnerable 2. have a hard time making critical decisions 3. the parents tried to use testimony of a housemate that Cruzan said she wouldn¶t want this. Thus. the case showed that it¶s a state evidentiary question as to what proofs are needed to determine is someone expressed their desire to not be sustained on life saving measures. WA v. . ii. the desired abortion would be in her best interest ii. in consultation with her physician. Minor needed to get consent of parents before an abortion would be allowed. iii.52 1. There also was a right of the child to bypass the parents and have a judicial determination of whether they felt it was in her best interest to have one. That even if she is not able to make this decision independently.

. Relied heavily on Cruzan. then it can show intent of a person based off of CL tort. If there is some recitation form. Oregon i. Tried to claim it was under privacy much like other fundamental rights but failed. He said it was a controlled substance and it was wrong for drs to prescribe and he would criminalize it if they did. This was a case where the husband wanted to end the life and the parents did not. Since the ct ruled there was no basis in history or tradition for PAS it was deemed not a be a fundamental right. ethics 2. if the evidentiary standard was met (in this case it was clear and convincing evidentiary standard) c. living will that expliciltly states the person does not want treatment. Issue became whose right was more important. ii. Shivavo ± compare i. practice or custom that allowed PAS ± therefore RB applied and PAS was prohibited vi. Gonzales v. But ct said it is not a fundamental right like Cruzan and the right o refuse unwanted medical treatment. General i. 1. A state may recognize that under certain circumstances a surrogate may act for the patient in electing to have hydration and nutrition withdrawn in such a ways as to cause death. A competent person has a constitutional protected libertes interest in refusing unwanted medical treatment 1. 1. The ct looked to tradition and history to determine whether a fundamental right or not. slippery slope argument iv. iii. found this reasonable because of: 1. vi. although just cause history says one thing doesn¶t it is right. ct found that there is a real difference between refusal of unwelcome medical treatment and PAS. v. e. Glucksberg i. vulnerable group 4. Right to Physician Assisted Suicide (PAS) d. There is no basic fundamental right to PAS ii. PAS was ruled to be ok in Oregon ± there was a fight with whether the AG had a right to end what was voted on. Dissent ± O¶Connor felt like there should not be a total ban of PAS that there should be a right to ³die with dignity´ f.53 v. ii. However it shouldn¶t ever be about the people contesting the issue but about the evidentiary stnd in the state that needs to be meet to show that the person didn¶t want to be sustained on life support. WA v. There is nothing in history. An incompetent person who is not able to make an informed and voluntary choice to exercise a hypo right to refuse treatment or any other right. most ground breaking cases go against historical interpretations. preservation of human life 3. these things by themselves is not accurate but cts weigh heavily upon them.

E. Goes to the issues of federalism and the right of the state to enact what they want for the welfare of the people. Looked at history and tradition ± but looked at it really narrowly b. iii. Evans. she says the ct applied an unheard of form of RB review and that it will have far reaching implications in the future. g. Vacco v. Sodomy charge against 2 homosexuals ± ct relied on Bowers and whether there is a fundamental right to engage in sodomy and that ct said no (distinction was that it was to all people not just homosexuals.54 ii. iii. 5 justices relied on SDP invalidated the application of the TX anti sodomy statute to adult males who had engaged in a consensual sexual act in the privacy of their home. 1. Bowers i. Constitutional Protection for Sexual Orientation ± Sodomy ± SDP doctrine a. 1. O¶ Connor relies on EP and doesn¶t overturn Bowers. 1. doesn¶t really say what the standard is they are using but looks more like a heightened scrutiny than RB 2. But it concludes that TX has no legit state interest underlying the law (morality claim is BS). She feels that a law branding one class of persons as criminals based solely on a state¶s moral disapproval is a violation of EPC. Talked about ± the slippery slope etc. The ct ruled that there is a rational distinction to be made and that there is no EPC violation by allowing competent adults to refuse unwanted medical treatment ± and not allowing PAS. Quill i.but the ct didn¶t really focus on straight people) ii. The majority doesn¶t call it a fundamental right nor do they apply SS. The ct overruled Bowers (held that even though it was consensual and in privacy of owns home didn¶t matter) the majority in this case felt that it is a liberty protected by the constitution. Lawrence v. comparison to bestiality and adultery and the moral holdings of the ct iv. Again see the issue with federalism and the right of the SC to review State ct decisions v. TX i. . 2. No fundamental right to engage in sodomy ii. states are a laboratory of social policy and this needs to be upheld. iii. Ct said AG went beyond his powers ± didn¶t consult with the proper authorities and went beyond scope of interpretation. there still is a question to where the presumption lies and the burden whether it has really shifted. ii. don¶t apply SS but really apply a RB with bite a. See a lot of similarities to Romer v. NY banned PAS ± there was an EP argument claiming that PAS and refusing unwanted medical treatment was the same. There is a right by homosexuals to engage in relationships. doesn¶t clearly come out and say it is a fundamental right or that it is a liberty but we are too assume that it is 3.

One person one vote case ± this was held to be a substantial and direct interference of the idea of one person one vote. v. Narrowly tailored argued yes. It did this cause it was a violation of EP that ³requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. . idea back to gerrymandering if done for political reasons that is ok ± if done for racial reasons that is not ok and will be subject to SS and will fail in the end. there was an argument to the ct that there should only be a RB test cause there was no substantial and direct interference ± failed iv. Sims i. state . Lawrence says that he would err on the side that there is a fundamental right to privacy of ones information. Right to Vote a. There is an established fundamental right to travel.55 F. there is equal participation for all voters in the election of state officials diluting the weight of the votes because of place of residence impairs basic constitutional rights under the 14th A just as much as invidious discriminations based upon factors such as race or economic status. And there is no compelling state interest for this. a. Saenz v. The ct in this case struck down a malapportionment scheme. Constitutional Protection for Control over Information a. iv. Bush v. Reynold v. difference between states and federal 1. b. yes argubably doesn¶t come out and say this 2. G. Federal . iii. problem arose because there were no uniform state stds of what consisted a yes vote. Names of people who get prescription drugs placed in a data bank ii. Substantial and direct interference: yes 3. ii.. 1. have to have equal representation.the difference one not really one vote one person with certain states having more officials is founded in the constitution and will be upheld do to tradition and such. Gore i. its weight is in a substantial fashion diluted when compared to votes of citizens in other parts of the state. SS: is the interest compelling ± yes fighting crime of schedule 2 market drugs. also there wasn¶t clear language as to whether it was a fundamental right of a liberty interest that was being discussed. H. there doesn¶t need to a be a strict mathematical equality iii.one person one vote ± . Whalen v. Roe i. Case where we see the PI clause in effect ± since travel is deemed a fundamental right as a citizen of the US ii. The states may NOT use the federal model for their legislature 2. FL issue with the presidential election ± immediate recount was needed under FL state law. Right to Travel a. Roe i. FLSC ordered the recount.. fundamental right: right to privacy. Test 1.

apply the relevant standard a. i. is it an otherwise constitutionally protected interest? (ie abortion or privacy in homosexuality situations) 1. we see the idea of to what extent will we recognize an affirmative /positive action by the government (not prohibition) iii. Is this a fundamental right? i. abortion undue burden b. If yes. Lawrence type case ± RB with bite really (no fundamental right to partake in homosexual activities but there is a privacy interest at stake) 2. Is it a substantial and direct interference? i. Constitutional Protection for a Right to Education a. If no. 1. I. ct ruled that it is not a fundamental right and therefore only needs to survive RB ± which they feel it does . this is a good example of how a fundamental right (DP) and an EP claim can be in one situation. General i. 4 justices feel there is time to remedy the situation iv. that there was an EP violation but this wouldn¶t fix it 2. If yes. Alamo Edgewood $225 $222 State 36 108 Federal 333 26 District $594 $356 Total ii. RB and go to (c) b.56 ii. there then was a claim of an EP violation because of the one person one vote idea. The new Test a. if no. SS go to (c) ii. If no. Dissenters ± this is a state issue and again we are trotting into state legislative matters v. then go to (b) ii. majority holds that there is a constitutional violation of EPC rights in the fact that one vote one person is violated with the haphazard stnds. Is the test met? J. There is no fundamental right to education b. ± also there is a fundamental right to vote and therefore it became a DP constitutional issue. Arguing that the money difference is causing the children to receive a lower level of education. San Antonio School District v. iii. if yes. argument that education is so crucial to other fundamental rights that there should be a shoe horn of education into fundamental rights 1.e. RB go to (c) c. Rodriguez i. Issue with low income area in TX not receiving the same amount of funding as the wealthy areas. 5 justices feel there is no remedy that could be implemented in time.

alleged that there was a deprivation of adequate safeguards by the negligence of the prison guards. arguments that maybe a nexus theory test should be used instead of an RB stnd. b. deliberate. General i. Breaks down into 3 basic questions: i. liberty or property. Except when its an emergency (look and consider the facts) ii. Dissent ± argues that it even fails RB stnd 1. Negligence is not (Daniels) ii. does this meet disparate treatment by the state under a RB stnd? ± no states are labs of new ideas. Difference between sub DP and procedural DP is the remedy being sought e. notice. i. Failure to protect ± NO 1. that education is special and therefore should get special treatment v. or property. adequate as long as the min education by the state is given 2.57 1.giving people of the US some protection. d. i. Is it without due process of law B. Prisoner who slipped on a pillow on the stairs. ii. Usually the issue is not one that you would think on its face is procedural but a lot stems around the idea of DP clause providing adequate safe guards to protect. liberty or property. indifference ± YES (look to see if it shocks the judicial conscience) a. Is it of life. life liberty and property i. c. and hearing. liberty. . liberty.NO 2. Remember only to government action so if it¶s a private person look to see if state action doctrine can apply. Idea being that there should be a prevention of government tyranny and oppression . exception emergency situation. education is looked at as special ± it may not be a fundamental right under DP but there will be some special treatment given to it. better to think of it this way then really about a notice or a hearing. Government negligence . SC should not get involved iv. 3 main requirements ± impartial decision maker. General a. Williams i. Deal with the manner in which a government acts ± purpose to prevent the government from arbitrarily depriving a person of life. f. unless it is deliberate and reckless (shock the judicial conscience) a. Daniels v. or property? iii. Had there been a deprivation? 1. IV Procedural Due Process A. Reckless. (Lewis) b. What is a deprivation? a. Intended to ensure that government uses a fair procedure when it singles out an individual for a deprivation of life. there is an affirmative obligation to provide it but there is no fundamental right 1. Refers to the procedures that government must follow before it deprives a person of life.

Different in SDP than it is in PDP ii. County of Sacramento v. they are given some leeway ± that is needs to When is the government¶s failure to protect a person from privately inflicted harms a deprivation? d. or Property? a. property iii. Since this failed the claim is not a state action and therefore a private person cant be sued for a con violation. Liberty. General i. Lewis i. iv. Winnebago County Dept i. it must shock the judicial conscience to be held deliberate and reckless? 2. Main question usually is does entitlement amount to a property interest? . cause of the lack of intervention the state allegedly violated/deprived the boy of his life. Child abuse by a father known and the inaction of CPS to take action. liberty. There was no affirmative obligation of the state to protect the child. DeShaney v. Issue was has the state through its officers failed to provide adequate safeguards to these men therefore resulting in a violation of their PDP rights? 1. however the ct found that there is an exception when it is an emergency i. before abuse became so bad that the child was beaten so bad that he is not mentally retarded ii. iv. claimed that there was an affirmative duty to protect the boy ± the ct struck this down and said that there is only an affirmative duty to protect prisoners because they have been stripped of their liberty 1. no ± negligence is does not rise to the level of a deprivation (no intent) 2. the ct ruled that there need to be deliberate and reckless indifference to life to qualify as a deprivation and that this was deliberate and reckless a. 1. There are other avenues for the prisoner to sue under ± Torts claims are made for the very purpose of remedying negligence. this is not the case here. 1. Dissent ± state law has setup this scene/ reporting device about child abuse and people know this and expect them to take action when they report to them. there needs to be some intention to deprive a person of their life. §1983 action brought ± bringing suit for a violation of Constitutional issues ± claim that the dept of social services didn¶t protect the boy and therefore there was a deprivation of his right of liberty to be free of abuse. liberty or property iii. if avenue is not doing anything ± then it is almost in a way making it worse. Is it a Deprivation of Life. the ct looked to the purpose of the constitution ± to prevent government power to be used as a tactic of oppression 1. negligence is not a deprivation of PDP c. Was there a deprivation of PDP1. Motorcycle chase by the PO and the motorcycle crashed and the PO couldn¶t stop in time and hit the passenger on the motorcycle ii.58 ii. C.

a. a contract that clearly says you have an interest in you job ± yes ± need an independent state law that protects it a. liberty or property interest protected? 1. Terminating welfare benefits without a hearing was a violation of PDP 1. employment) ± this then creates a property interest and therefore if you are going to deprive someone of this you need to provide procedural safeguards. Note Cases i. there was nothing in his contract that stated he was entitled to this (was a state school by the way ± that is why it passed state actor) v. tenure. Board of Regents v. ii. Not SDP ± because there is no fundamental right to welfare ± this is not a deprivation of a property right cause there is no fundamental right to it. a contract that is silent ± no b.59 1. Goldberg v. Ct asked is there a legitimate claim of entitlement? It ruled no. State university prof who signed a 1 yr contract and was then let go and no explanation was given. Sinderman . hearing) 1. c. ii. meaningful matter and there is an opportunity to defend and confront witnesses who are adverse by evidence and own arguments before pretermination iv. welfare was said to be so important cause it¶s life changing and could cause one to be on the streets ± therefore need PDP safeguards. iii. reputation alone is not enough 2. iv. What is a life. v. Question arose as to how we define a legit claim of entitlement that rises to the level of property protected by PDP. Kelly i. whether there is an independent source of state law rather than an abstract need or desire ± there must be more than a unilateral desire for it. reasonable expectation created by an independent source (state law. welfare that has already been received is considered property 3. ct ruled that for PDP to be met that there needs to be an adequate process ± meaningful time. Dissent ± inefficient and doesn¶t stop fraud before it gets out of hand. 1. iii. Perry v. note that it is ONLY AFTER IT¶S GIVEN iii. once given by government there is a reasonable expectation to the property and therefore it is considered property for the PDP sense. Ct decides that once the welfare $ is given there is a property right in the procedural sense and therefore there is a need for adequate procedural safeguards before termination (notice. He claimed he was obligated to a hearing or formal statement to why he was not retained. Roth i. Even though under SDP there is fundamental right to welfare 2. Dissent ± if government actor. they owe a person an explanation if not a notice or a hearing ± its just common courtesy 1. also made some bold statement about every person being entitled to government job d.

iii. Bishop v. Wood 1. Eldridge i. Goss v. Paul v. P was a charged but not convicted shop lifter. govern can stop a reasonable expectation if they clearly state that there is no expectation involved iii. e. the ct ruled that reputation alone is not enough of a property interest. Claimed no longer eligible to get disability benefits was given notice and time to respond but they were still denied ii. cant get disability money 2. 1. not up to the state to determine adequate process that is constitutional issue 2.The private interest affected by the government action a. Active shop lifters list and photos sent out to business. in contrast. Davis i. ii. ct laid out a balancing test . iii.60 1. Lopez i. Matthews v. with expulsion there is a mandatory appeals process. Dissent ± when charged with a crime and you have not been found guilty yet it is unfair and against the system ± you are innocent until proven guilty diminishes this whole idea D. flow from Roth but this contract with the teacher was found to require an explanation 2. at will employee ± PO not entitled to PDP 2. must meet the min constitutional requirements and may allow more if the state chooses but not allowed to require less. his photo was included. this doesn¶t rise to the same level as welfare f. interest of the individual . Loudermill 1.should look at three factors: 1. Claimed there was a deprivation of his property interest as to his reputation. What Procedures are Required? a. there was an independent source of state law that justified this. therefore must have adequate safeguards if you plan on removing it iv. the ct ruled that there was a reasonable expectation in this K for tenure unless for a justifiable reason and this was sufficient enough to constitute a property interest because it was not arbitrary or unilateral ± it was built into the K a. since there is an interest in attending school. The ct ruled that there is a liberty interest as to reputation property interest. this ct though ruled that there isn¶t a need for a trial that notice is enough. ii. the government interest including the added fiscal and admin burdens that the new procedure would entail. Suspension of kids at school ± no appeals process. Property state law has provided education and there is a reasonable expectation to get that education 1. (later the charges were dropped) ii. . There must be a chance to defend oneself and give an explanation but there doesn¶t need to be a full out hearing 1.

Types of less protected / unprotected speech (content based not entitled to SS) a. Freedom of the Press ± no additional safeguards ± they have the same rights as individuals do. Low value speech e. Religion Clauses a. v. try not to over spend 3. This doesn¶t even allow speech to occur at all and then be restricted its right of the bat.61 a. Fighting words (words that are so horrible only thing to do is strike back) c. b. 1. The ct said that receipt of disability payments is simply not as crucial as receipt of subsistence welfare payments. Political speech ± this and no prior restraints are the preeminent value/ self governance c. When a government seeks to terminate a benefit which it has conferred the ct will look to the importance of that benefit to the recipient. Commercial speech f. Freedom of Association ± non in text but held analytically as part and parcel of speech? E. Additional factor ± the fairness and reliability of the existing pre-termination procedures and the probable value if any of additional procedural safeguards. d. Sword and shield idea ± there is always the argument since its clearly laid out in the text of the con that they should have some sort of extra protection. The ct ruled that there is no right to a hearing prior to the termination of disability benefits. Obscenities (unprotected) d. Illegal activity b. Free exercise clause . Vagueness and over breath (an issue with PDP and having a violation of notice since the statute etc is ambiguous) B. F. Defamation g. Framework A. Ways of evaluating (courts methodology) a. iii. Forum Analysis ³Where´ ± where does speech occur does that make a difference? D. The risk of erroneous deprivation of that interest through the procedure presently in place and a. that medical reports are much more objective iv. No prior restraint this is the cts highest restriction. If we give them what they are asking for is it really a big deal ?? probably will actually be better to enact what the person is asking for. Establishment clause b. i. a. Dissent ± maybe a matter of life or death like welfare benefits show that Elbridge and his family lost everything. Conduct (some) that communicates ± gets more like IS then SS C. Is the restriction content based or content neutral. FIRST AMENDMENT: Freedom of Expression I. the question is whether the recipients interest in avoiding the loss outweighs the governments interest in terminating the benefit without providing notice or a hearing.

The Distinction between Content Based and Content Neutral Laws a. self governance i. problem being that false ideas are usually the ones that are most funded 1. place and manner III. Background a. view pt based ± taking a side on a particular matter ii. market place of ideas ± the clashes of ideas will spark the truth ii. . Free Speech Methodology B. 1st A allows for people to govern themselves.62 II. Content neutral ± IS ± heightened scrutiny. discovering the truth i. ³time. pictures. manner ± if it is then it is ok 2. What is speech? Vs non expressive conduct? c. Common Treads a. or prohibiting the free exercise of thereof. place. Freedom of Speech ± the beginnings A. and to petition the government for a redress of grievances. Licensing in England ± certain speech was required to have a permit b. by being able to speak freely b. Is the restriction content based or content neutral? i. the free speech principle is thus concerned with nothing less than helping to shape in intellectual character of society D. or abridging the freedom of the press. Federal Communications i. writing.Usually about a particular matter 2. Turner Broadcasting System v. however it does leave people to decide for themselves c.´ i. Is there a state actor? b. promoting tolerance i. Content based ± SS there is a compelling government interest and the means used are narrowly tailored (no less intrusive means available) 1. freedom of expression permits and encourages the exercise of central human capacity to create and express symbolic systems. Why is Freedom of Speech a fundamental right? a. 1. place. and music. such as speech. subject based . First Amendment States: ³Congress shall make no law respecting an establishment of religion. ³Market place of ideas´ ± prohibition on speech. reasonable in time. or of the right of the people peaceably to assemble. is there an important government interest ± if so then look to the if the substantial advancement is one of reasonable time. Free Speech Analysis (hard to do very 3d) a. however it has not been found that no laws can exist B. d. speech is prohibited before its out there hurt the idea that society should be a marketplace of ideas b. advancing autonomy (self-fulfillment and autonomy) i. manner restrictions´ vs absolute prohibition on speech C. Case with the cable providers and the idea that the cable company has the right to speak and government can tell them they have to have these channels. Issue with the text because it says no law.

and content neutral laws get IS. Son of Sam 1. Any adult motion picture theaters cant operate in a residential area 2. The Ct rejected a facial attack on a federal state which requires the NE for the A to take into consideration federal stnds of decency and respect for the diversity of beliefs and values of the America Public in deciding who will be the recipients of federal grants for the arts. . note case. A. A. ct ruled that this was content based ± usually only the workers who protest and no the management so its not subject based iii. ii. B. Dissent ± says not really content based this is BS looking at secondary effects and not the restriction itself. Secondary effects ± if the ct is satisfied that the government was merely trying to eliminate the undesirable non-content related consequences of an expressive activity. How to determine whether a law is content based? i.things like increased crime or declining property values. Finley 1.63 ii. Carey v Brown 1. content based is usually: 1. IS . Dissent says its content based b. iii. City of Renton v. Content based: SS test fails the test. no picketing in the neighborhood unless it was labor related 2. 3. is always found to have passed in these situations 4. Content based and struck down c. Barry 1. Majority finds this is content neutral ± iv. subject or sector based ± ie broadcasting A. Established the idea that content based regulations get ± SS. Playtime 1. 2. Boos v. usually an or situation but can be and v. Problems in Applying the Distinction between Content Based and Content Neutral Laws i. Federal law can require the National Endowment for the Arts to consider general standards of decency in deciding how to allocate competitive grant funds. Ct ruled it was view pt based. National Endowment of the Arts v. 3. a view pt ± a regulation of a view pt 2. The ct rule that since the government was acting as a patron not a sovereign any ambiguity in the statute was constitutionally permissible. Signs within 500ft of the embassy 2. Doesn¶t follow doctrine set up looks to the secondary effects of the content based regulation and applies IS instead of SS. view pt or ±could be promoting or condoning not mandating a certain view pt punished either way.the regulation will be found to be content neutral and will be given only relatively un-strict ± IS review. subject matter: all protestors no matter what the speech is ii.

The was ruled to be a content based restriction. there is such a broad spending power ± for the general welfare not usually struck down. the majority responds with the idea that it can be views once asked to remove the block. Breyer calls for heightened scrutiny but not SS.64 A. Shows the importance of the differences in viewing speech issues when it deal with spending ± this imposes a different flavor on the analysis. Dissent ± Stevens ± should be left to local legislature the burden is to much. Concurring by Kennedy ± legit RB meets this. Hurts the market place of ideas ideal to speech A. violation of speech because the regulation is soo vague. 4. These filters were to get out porn and such. What is annoying and who defines what is annoying? 3. Vagueness and Over breadth a. Filters were required on library computers for the libs to get funding. but again we see that this is an issue of taxing a spending power and there the criteria to meet seems to be a lot less. The ct says that it is content based ± but is it really??? Cause they really only apply a RB stnd ± wont impose heightened scrutiny with funding issues. There was a bypass to the filter could ask for it to be removed if you were an adult. This is because there is a PDP violation because a person cant be on notice if they don¶t understand the law iii. blocking perfectly acceptable material A. C. Vagueness i. A law is constitutionally overboard if it regulates substantially more speech than the constitution allow to be regulated and a person to whom the law . US v. If it was directly to speech would prob not stand. A. Dissent ± Souter claims that this is view pt based bc it causes people to rethink reality. Again see the idea of spending with regards to limitations on speech. The ct emphasized that the statue did not preclude awards to projects that might be indecent. Over breadth i. American Library Association 1. City of Cincinnati 1. A law is constitutionally vague if a reasonable person cannot tell what speech is prohibited and what is permitted ii. it simply added on consideration (decency) to the general funding criteria of artistic excellence and artistic merit. also would meet compelling ± SS 5. ordinances should be structured with reasonable specificity b. 4. that is was view pt neutral (don¶t agree) 5. 6. analyzing activity not allowed when 3 or more people are being annoying 2. Coates v. 2. iii. 6. 3.

Borough of Mt Ephraim 1. the ct ruled that this was not vague ± clearly said all speech but that it was way to overbroad no right to prohibit all speech. General i. ordinance doesn¶t allow one to yell at a PO 2. Clearest definition of prior restraint is an administrative system or judicial order (injunction) that prevents speech from occurring. 3. Hard to do wouldn¶t do it better to be safe than sorry. D. bypass ± clearly uncon. this was ruled to be overbroad cause it was based on the idea that don¶t want to allow people to divert the attention of the cop and hinder his work. 1. c. State of Minnesota ex Rel Olson . Hill 1. Near v. but there are other reasons why people yell at cops that would also be stopped. Relationship between Vagueness and Over breadth i. allows an exception to 3rd party standing bc speech is such a valued right that the ct wants their to be an exception. 3. Schad v. not allowed bc it is regarded as the SC ³strong medicine´ bc it involves the facial invalidation of a law bc it permits indv with standing to raise claims of other not before the ct. Idea being that you have to uphold the law and you have to show deference to the ct. ii. compare ± Hypo ± ordinance all speech that is not protected by 1st A banned ± this is vague bc not everyone knows what is protected and what is not. These are the most serious restriction on speech because it doesn¶t even allow you to get it out there and then be denied you are denied off the bat. b. Court Orders as Prior Restraints i. Preemptive ii. exception ± National Security iii. Houston v. Not vague cause you understand what it is covering but it is way too broad. Board of Airport Commissioners of LA v. Not overbroad it is specific. Jews for Jesus 1. There is a heavy presumption against the constitutionality of prior restraints 1.65 constitutionally can be applied can argue that it would be uncon as applied to others 1. Stems historically from licensing and permits in England iv. iii. Not limited to the facts of that person ± can go to a 3rd party 2. ordinance that prohibited all live entertainment within certain amt of miles of a residential area 2. Prior Restraints a. Also an issue with the collateral bar rule ± cant bring the suit after the fact if you knew you were not allowed to speak. A. the basis was to stop live nude dancing but covered soo much more. there was an ordinance that prohibited any speech in airport terminals 2. 1.

Classic prior restraint case with an injunction 3. there was only per curiam opinion in which they stated that there is still a strong presumption of unconstitutionality of prior restraints and that the government was not entitled to this injunction. This was in order to try to have a unprejudiced jury. the ct struck down the injunction as a uncon infringement of free speech. Court Orders to Protect National Security i. c. 4. A. scandalous and defamatory newspaper. Has not been decided yet. justifies such invasion of free speech as necessary to . The proper remedy for false accusations is in the torts context as a post publication action not having a pre publication injunction. NY Times v. This was used to enjoin the publication of a paper which criticized local officials 2. the press gets no extra protection under 1st A but gets the same as all others. 2. Stuart 1. but argument that it has been put to the people and therefore there should be more deference to it ± prob wont work d. the ct noted that there are exceptional cases that would allow prior restraints ± ³the sailing of dates of transports of the number and location of troops´ this would be proper prior restraint. pentagon papers case. what if it was a statute as the prior restraint ? 1. Court order to Protect Fair Trials i. 2. The NY times began to print part of the pentagon papers and the gov sought an injunction against the two papers to prevent further publication. 3. NE v. US v. the ct didn¶t have to rule because it became mute because someone else published it 2. reasoning that the aim of the 1st A was primary to prevent prepublication restraints. 3. state procedure for closing down as a public nuisance any malicious. NE man was about to be tried for a brutal mass murder and it had gotten a lot of media attention. Gave really no other reasoning 3. Progressive ± how to build an atomic bomb. needing to balance right to fair trial with 1st A rights ± the ct laid out a test stated by Learned Hand ± ³the gravity of the µevil¶ discounted by its improbability.66 1. 5. The trial judge ordered a prohibition on the press from reporting any confessions or admissions by the D or any facts that were implicative of him until after the empanelling of the jury. if the press was to collect these papers in an illegal matter then there would be justification to stop them ii. the SC ruled that this violated the press¶ 1st A rights. National Security legit reason for prior restraint. US ± establishes that the press has almost absolute immunity from pre-publication restraints 1. idea being that once the cat is out of the bag it is fair game for the press to print it.

political . Village of Stratton 1.reasonable. content neutral ± IS . sequestering could have been used instead C. only democrats may speak B. content based ± SS or . how effectively a restraining order would operate to prevent the threatened danger. Present Day with licensing . manner. had to get a permit to solicit door to door. Licensing as a Prior Restraint i. 2. In order to do this the ct looked at the evidence before the trial judge when he entered the order: A. . whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity . e. permit needed to distribute literature 2. Dissent ± crime prevention. first need to determine whether it is: A.other alternatives ± change of venue. 5. time. the nature and extent of pretrial news coverage . ordinance on its face was held to be invalid.speculative rather than certain B. privacy and the need to balance the idea of free exercise of speech with privacy and property right issues A.67 avoid the danger. City of Griffin 1.This wont even be effective because it is such a small town that word of mouth will lead these people to find out anyway 4. this case shows you that even in a very strong case that seems to have good reason for a gag order to promote the idea of fair trial that it still wasn¶t enough for the prior restraint of a 1st A right to free speech. the ct ruled that using this balancing test that there is not sufficient enough of a benefit to restrict ones 1st A rights with a gag order. prior restraints in general are disfavored because they are looked at as a governmental restriction on ideas ± prior restraints don¶t even allow the words to be said right of the bat ii. ct ruled that this was content neutral and therefore subject to reasonable. The ct felt that seeking the permit was killing the idea of spontaneity and anonymity ± this they found wasn¶t acceptable 4. Failed and the free exercise of speech won out iv. religious or 2. the mere fact it needed a permit was enough to make it unconstitutional iii. Lovell v. time. fraud. Watchtower Bible v. General 1.subject based or 1.view pt based 1. place. place and manner 3.

Cts have held that defamation is less protected form of speech iv. Distinguished this case from Freedman were there was njo guidelines and the discretion wasn¶t just a managerial function of the permit seeking C. Requirements for licensing/ permits i. Civil liability ± law and common law that impose civil liability for speech actions ie defamation (tort) ii. iii. Test for Licensing and Permits/ Prior Restraints 1. Ct ruled that there was to much discretion to the government. Chicago Park District A. Clear standards leaving almost no discretion to the government 1. are there procedural safeguards A. What is an infringement of Freedom of Speech? a. Need permits to have things take place in the park. City of Lakewood A. need procedural safeguards are there is avoid the dangers of censorship 3. immediate recourses available B. civil liability for speech even in the context of private civil litigation is an interference with speech and therefore must meet 1st A scrutiny. Procedural Safeguards 1. Freedman A. Not a subject matter restriction ± ruled to be content neutral D. f. P wanted to have a rally for legalization of pot. * if content neutral don¶t need the procedural safeguards E. is there a substantial reason? 2. It was not ministerial but more subjective.68 1. News racks case B. When there is a content neutral distinction there is no need for these extra procedural safeguards (difference from Freedman) iv. Thomas and Windy City Hemp v. such as a requirement for prompt determinations as to license requests and judicial review of license denials. v. the SC has held that licensing or permit laws are allowed only if the government has an important reason for licensing and only if there are clear criteria leaving almost no discretion to the licensing authority. Any system of prior restraints must have a prompt decision made by the government as to whether the speech will be allowed ± there must be a full and fair hearing before the speech is prevented and there must be a prompt and final judicial determination of the validity of any preclusion of speech 2. Civil liability and Denial of Compensation for Speech i. Tort cases . is there clear standards 3. B. Imposes limits on speech iii. Important Reason for the licensing ii. In addition there must be procedural safeguards.

Cant prevent these figures from profiting on their speech that would be a constitutional speech violation Less Protected and Unprotected Speech F. the clear and present danger doctrine began in 1919 when the Ct used it to affirm convictions under the 1917 Espionage Act ii. Some others that are less protected but are still deemed to be protected 1. Test 1. and the insulting. Advocating criminal activity or the overthrow of the government vs the need to promote order and security c. Prohibitions on Compensation i. Clear and Present Danger ± the Brandeburg formulation ± 1989 to present day d. A. high likelihood of: A. Clear and Present Danger Test i. the profane. Incitement of Illegal Activity i. Types of Unprotected Speech a. imminent and . advocating criminal activity or the overthrow of the government 2. Where it is likely to cause a violent response against the speaker and where it is an insult likely to inflict immediate emotional harm. Incitement of illegal activity. false light. the libelous. Reasonableness Test ± 20s.69 1. General 1. Although these are private actions between two parties it is a state actor who designed the law thus can come into federal ct jurisdiction b. Invasion of privacy. B. Fighting words A. A. Obscenity ii. They include the lude and obscene. Risk Formula Approach ± 50¶s iv. Those by which their very utterance inflicts an injury or tends to incite an immediate breach of the peace. advocating criminal activity or the overthrow of the government 2. so offense that they tend to cause direct violent reaction. General i. Unprotected 1. important cause it shows the balance between society need for social order against its desire to protect freedom of speech. OJ / Son of Sam ii. IIED must be consistent with the 1st A 2. basically a RB test iii. low value sexually orientated speech Incitement b.30s 1. Tests of what is considered incitement i. 3. Clear and Present Danger Test (C&PD) 1.

better to get out and let the people decide for themselves B. It is a question of proximity and degree´ 3. the ct seemingly handed down a test that appeared to resemble RB review A. US 1. Whitney v. Talked about the spark and the idea that this could not spark a eruption of flames 4. again great validity and deference given to the statute A. giving great deference that every presumption was in favor if validity of the statute. Upholds laws and their applications so long as the gov¶s law and prosecution were reasonable. Compare with Al Queda today e.again upheld Espionage Act 2. 3. the ct in the 1920¶s refused to apply the clear and present danger test. General 1. A. affirming the conviction of a speaker solely because the engaged in speech that was specifically prohibited by statute. Gitlow v. US 1. 2. only will be overturned if arbitrary and unreasonable . again states that there is no imminent threat of serious harm A. NY 1. Ct used the reasonableness test 2. Only overturned if deemed arbitrary and unreasonable ii.70 B.000 copies of a radical manifesto that urged strikes and other actions to est socialism 2. also the 1st time you see the ct deal with the idea of the incorporation of the 1st A to the states because the failure of the PI clause iii. Abrams v. That it is important to protect speech even if inciteful if it is not an imminent and serious harm A. Gitlow distributed 16. CA 1. Holmes dissents ± sppech should be allowed. alleged violations of 1917 Espionage Act 2. Holmes dissents in this case though feels that one should only be punished if the speech creates an imminent danger of some evil that govt had right to prevent. Again establishes the importance of the marketplace of ideas. lady who talked at a communist party convention. Reasonableness Approach i. this ct found a danger in these activities and the violations were upheld ± the con affords the cts a right to limit free speech iii. Holmes laid out this new test with regards to incitement words ± ³the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has the right to prevent. Schenck v. distribution of leaflets. Very similar to RB a lot of deference to statute (aka the state) B. serious harm ii.

A. A. that a state cannot proscribe advocacy of the use of force or of the violation of the law unless the advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action ii. Compared with Schenck ± where the focus was on whether words are used in such circumstances and are of such a nature as to create a clear and present danger of an evil that Congress has the power to prevent. only merely teaching the readings of books 2. Brandenburg v. 2. Yates 1. Dennis v. in 1951 the ct applied a version of the clear and present danger test which asked 1. discounted by its improbability. whether the gravity of the evil. ³gravity of the evil´ version of clear and present damage test ii. iii. The ct gives us the modern version of the clear and present danger test. Mere advocacy of stuff is not enough this is short of incitement. The government may punish speech if it is directed to inciting imminent lawless action and is likely to cause such action. D convicted of conspiring to org the communist party ± forceful over throw of US gov. If the risk is too much then it can be stopped 3. The Brandenburg Test i.71 3. Must be shown that it is imminent and serious threat of harmful conduct !!!!! f. Better to have it out there so the people can decide iv. US 1. OH 1. Black and Douglas dissent ± books not outlawed so how can the teaching of those books be outlawed. Ku Klux Klan ± distinction between advocating and teaching ideas vs incitement is drawn 2. the government may punish the present advocacy of future violent action if the speech plus its surrounding circumstances make it highly likely that the evil will occur at some specific time in the future. The Risk Formulation Approach i. justifies such invasion of free speech as in necessary to avoid the danger government is trying to prevent. Whether the gravity of the evil. discounted by its improbability (the unlikelihood of its occurrence) justifies such invasion of free speech as is necessary to avoid the danger the gov is trying to prevent. . General 1. Don¶t care about imminence and serious harm 4. ct ruled not a clear and present danger 3. Brandeis concurs ± (this becomes the conventional approach) need to flesh out clear and present danger test on facts. which is that a state cannot proscribe advocacy of the use of force or of the violation of the law unless the advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. g. A.

ex ± Cohen ± FUCK The draft on his jacket. Fighting Words that are Vague and Overbroad i. But the ct didn¶t see that at the time. the very statute the defined what the fighting words were in NH was vague and overbroad. the profane. cop told him that he crowd was being restless.72 A. They include the lude and obscene. A. i. Narrowing the Fighting Words Doctrine i. the libelous. Not to a group in general. Gooding v. Again there was no individual it was speaking to it was to whomever was to look at it. The test is needed to ensure the law only punishes incitement to illegal action. Never been overruled either. Then again the cop told him crowd getting restless. need to look to the intent of the speaker ± Black neighborhood vs out in the woods.Fighting words are so offense that they tend to cause direct violent reaction. j. 1. and the insulting. The ct has said yes. There are ways that this could have been limited. could have been ok if the statute was based solely on fighting words ± but ruled that breach of peace words is too broad. The comment must be directed at a particular person. but it is not directed at an individual. Wilson 1. 4. Those by which their very utterance inflicts an injury or tends to incite an immediate breach of the peace. 4. speaker called the cop a ³god damned racketeer´ and a ³damned facist´ 2.political. They are expressive conduct. A. 5. . ex Flag burning ± highly offensive to many. 2. B. ct ruled that these were fighting words. What is annoying to one it not necessarily annoying to another. breach of peace words ± guilty of a misdemeanor ± law was ruled to be overbroad and vague 2. Under Brandenburg ± need to look to the intent of the speaker Fighting Words h. Fighting Words i. here we see the question though is it really speech ± actions and words on a jacket are they speech. NH 1. A. Definition . ± 3. Chapsinsky v. Therefore it is considered to be protected speech and actually the most valued speech. B.There just needs to be the imminence of harm B. as opposed to advocacy of abstract ideas. Under normal CPD ± both would be able to be restricted . Where it is likely to cause a violent response against the speaker and where it is an insult likely to inflict immediate emotional harm. Need intent to produce incitement ± not just ignorance. this was just teaching there was no real threat they were just out in the woods teaching what they believe in. speaker.

RAV v. gender. the ct said that they would look to how the ct in the past has treated this statute and whether they limited it to fighting words (narrowly applied) A. 2. however the cross is deemed to be special b/c it symbolizes religious thoughts A. St Paul had an ordinance that stated that it was more serious crime if motivated by race. 2. Hostile Audience Cases i. not usually denied from speaking because it may make an audience Hostile ii. Narrowing Fighting Words Laws as Content ±Based Restrictions i. 4. 2. ct backs off the unconstitutionality of RAV and says that this is acceptable (burning if the cross) if it is not meant to intimidate A. creed ± appears to be more ³content neutral´ and not content based. City of St Paul 1. Burned cross on fenced lawn of a black family. rule ± the city etc must make every reasonable effort to allow this person to speak A. Black 1.73 3. this by itself makes a prima facie case of evidence of intent to intimidate 3. makes things that are protected 1st A speech ± unconstitutional. color. creed. and the Nazi protests B. 3. Concurring opinion ± overbroad. also about Lansing and how much $ they spent for a Ku Klux Klan protest. religion) within unprotected areas of speech are per se unconstitutional and wont be allowed to be spoken. the conduct is now subject to restriction and punishment if intended to intimidate . A. person speaking is trying to entice the audience (not about the individual) about provoking an audience to breach the peace. l. scales back RAV ± cross burning case. religion etc 3. VA v. They ruled there was no need to apply the SS test to see if they passed the test. FOCUS ON INTENT 4. Dissent argues why we looking on how its applied its all about what the statute says 5. Distinguished from Chapinsky 4. Generally ± Fighting words are only upheld if narrowly drawn and narrowly applied just to that speech k. gender. talked about Stokie Il. There was a statue in VA it wasn¶t based on race. General 1. GA was found to narrowly apply the statute so the ct says they wont step in B. The ct hold that fighting words that are content based (race.

ii. If doesn¶t met the above then it is not obscene (unprotected) ± but it is however less protected because it is deemed low value speech. this ct ruled that the cross burning was meant to intimidate so ruled it unprotected speech A. ii. artistic. Dissent ± this is punishing people then for other peoples thoughts v. whether the work depicts or describes. whether the work taken as a whole. US i. Need some sort of guideline or list by state iii. lack serious literary. taken as a whole. Ct ruled it was content based. Whether ³the average person applying contemporary community stnds´ would find that the work. This type of material is unprotected. After yrs of the ct struggling with what is obscene the ct laid out a new stnd to use to held define. Stewarts famous line to what is obscene ± ³I will know it when I see it´ o. sexual orientated speech. iv. American Mini Theaters i. material which deals with sex in a manner appealing to the prurient interest. 1. sexual conduct specifically defined by the applicable state law. 1. political. sexual conduct specifically defined by the applicable state law. iii. appeals to the prurient interest. artistic. iii. political. We see the ct struggle with the idea of community stnd is this local or national?/ 1. Adult Film Theater. Whether the work depicts or describes. lack serious literary. 2. CA i. taken as a whole. appeals to the prurient interest. Test/ basic guidelines for the trier of fact to whether the speech is obscenity: 1. Less Protected Speech Protected by Low Value Sexual Speech ± Zoning a. iv. Vegas different than small town Iowa G. ii. Federal statute that banned mailing of filthy pamphlets. not ok for the statute to infer that there is an intent to intimidate ± no prima facie case B. A. Doesn¶t rise to the level of obscene but is lesser protected. Whether the work taken as a whole. Miller v. or scientific value. allows SS to be used unlike in RAV 5. not entitled to the full protection of the constitution . Hands down a test to what is obscene? 1. (wont march sons and daughters to war over it) n. in a patently offensive way. the actually statue was ok though Obscenity m. Young v.74 A. Roth v. in a patently offensive way. or scientific value. Test: i. Need some sort of guideline or list by state 3. whether ³the average person applying contemporary community stnds´ would find that the work.

prostitution. time . place manner restriction on the speech. hostile reaction ± no 3. Trying to stop sexually transmitted diseases. CA statute was in place that was based around ³breaching the peace´. this is a time. Ruled it was not: 1. (expressive conduct) ii. Government Tech for Controlling Obscenity and Child Porn c. crime. 1. Dissent ± this is protected speech. this case leaves us with a rational basis test with bite. Looked to the Renton idea and applied the secondary effects doctrine. 1. Less protected speech ± cursing. More like a content neutral argument. 1. not obscene iii. fighting words ± wasn¶t directed at anyone in particular. Souter claims not even speech and therefore should be protected under the 1st A. The ct held that the ordinance was content neutral. ** Important note ± secondary effects have been only applied in the context of sexually orientated speech. Renton was time place manner restriction and this is an outright prohibition. City of Erie v. iii. not like RAV where they strike it down as soon as it is content based. CA i. however again see the idea that if the ct however apply the statute narrowly the ct will not step in and say that it is vague. GA i. don¶t even apply SS. (Chaplinsky test) 2. therefore the govt has every right to regulate. place manner idea is not fulfilling the principles of the doctrine Nude Dancing b. iii. Osborn v. Stanley v. Profanity and Indecent Speech e. place ordinance. ± legitimate purposes. prof argues that you could have claimed that the state was vague ± breach of peace ??? what defines that. And cant be punished d. Obscenity is unprotected but if you are viewing it in the privacy of your own home it is not a criminal act. not sexually orientated 4. Classifying this as content based but not applying the SS test instead making it a time. 1. .75 ii. Dissent ± there is a prohibition. OH i. Cohen v. iv. The ct ruled that the boys coat was not prohibited. ii. Deemed to be pure speech subject to SS. The boy with the patch on his coat that said ³Fuck the Draft´. Had an ordinance that banned public nudity. Applied this ordinance to the strip clubs. In comparison child porn is not allowed in the privacy of ones own home ± it is a criminal act. PAP¶s i. (even though it was symbolic speech) can apply then a reasonable.

Federal Communications Comm. ii. Commercial Speech a. 2. Its not like the jacket that was in public. Does the government have a substantial (compelling) reason for the regulation? 3.76 iv. Ruled to be an imposition because it went into their home. Should have to divert one self when in our own home. This case introduces the idea that conduct can be deemed speech. then it is not protected at all. H. George was asked not to play it during the day ± this was deemed to be ok because it was reasonable. economic motivation A. v. pure speech ± SS Broadcast Media f.1942 ± it was ruled that commercial speech was not protected by the 1st A. Looks worse when there is an outright prohibition and not just regulation. Need to determine whether a restriction on commercial speech is permissible? 1. does the restriction directly advance the government interest? 4. Again you see time. is the restriction no more extensive than necessary (narrowly tailored) to achieve the government interest? . The ct now agrees that commercial speech is protected under the 1st A.is not protected by the 1st A when it is deemed not to be speech. Test i. remember that the main reason commercial speech is constitutionally protected is to benefit and protect consumers. iv. there were arguments made after that this speech was of value just like other protected speech iii. O¶Brien form of IS. ii. ii. ** need all three** B.3. 1. place manner restriction with a content-based regulation. 1. Broadcast may get a lot more restrictions -lowest protection under 1st A. General i. Is the speech commercial speech?? Bolger (less protected as opposed to full protections under the 1st A): 1. less protected though v. Print and Internet doesn¶t require a high level of restrictions. iv. Difference is medium used i. specific product 3. VA Pharmacy . state argued that there was an interest in maintaining professionalism and the ct agrees but says that is not a reason to afford it no protect. Is the commercial speech concerning a lawful activity ± yes then go to steps (2. question is how it is to be safeguarded. b. George Carlin¶s filthy words radio broadcast. advertisement 2. g.4) if it is misleading. expressive conduct ± IS . 2. if yes move to (ii) ii. iii. Pacifica Foundation i.

Doesn¶t need to be least restrictive alt like in EP. SS but just need to be narrowly tailored. Public Service i. ii. What is Commercial Speech c. Bolger v. Is the commercial speech concerning a lawful activity ± yes then go to steps (2. Public officials A.4) if it is misleading. ii. Need to show with actual malice with CCE for both compensatory and punitive damages to be collected 2.3. This case was found to meet 1. Need to draw distinctions to who is claiming they have been defamed ii. Private person. Doesn¶t need to be a perfect fit just reasonable. Yes. Establishes the test to determine whether a restriction on commercial speech is permissible 1. C. Young Drug Products i. There needs to be three things for it to be considered commercial speech: 1. if it just informational ± then it is not commercial it is highly protected 1st A speech The Test of Evaluating Regulation of Commercial Speech d. Who is a public figure ?? high profile athlete. ** need all three** iv. So basically you would want it not to be commercial speech because then you would be afforded more protection. General i. then it is not protected at all. Categories 1. Doesn¶t need to be a perfect fit just reasonable. iii. is the restriction no more extensive than necessary (narrowly tailored) to achieve the government interest? A. I. Does the government have a substantial (compelling) reason for the regulation? 3. Public figures A. Lawyer who takes on high profile criminal D¶s 3. economic motivation 4. 2. Doesn¶t need to be least restrictive alt like in EP. Need to first determine it is commercial speech as opposed to fully protected 1st A speech. specific product 3.77 A. Central Hudson Gas v.3 but it failed #4 was way to over inclusive. Defamation ± Torts and the 1st A a.2. SS but just need to be narrowly tailored. does the restriction directly advance the government interest? 4. advertisement 2. Need to prove with CCE actual malice for both compensatory and punitive damages B. Public concern (Gertz) .

1. as long as there is some valid purpose there is no reason to read into congress to find some uncon reason . Conduct does it rise to the level of expressive speech. When may the government regulate conduct the communicates a. symbolic speech? 1. high/substantial likelihood the communicative message is understood by those who viewed/received it (reasonable person) a. the P must prove his or her case with CCE 3. Do not need to prove actual malice ± can collect compensatory and punitive without an actual malice showing Public official b. the P must prove actual malice A. Government restriction on Symbolic Speech is Upheld where: really an IS test. Laid out a four part test to establish that he was defamed: 1.78 A. Implicit argument (con law 1). that the D knew that statement was false or acted with reckless disregard of the truth. 4. Private concern (Dun and Bradstreet) A. It is unrelated to suppression of speech (ask this first) a. What is speech?? And when is Conduct Communicative a. ii. O¶Brien i. It furthers an important or a substantial government interest a. US v. This case shows that there is a lot of protection for the press because they require the P prove with CCE. Conduct that Communicates A. Ct narrowed this by saying that the person must understand the exact message that the speaker is trying to send. but don¶t need to show actual malice with CCE for compensatory damages. County commissioner claimed he was being defamed. WA i. IV. Draft burning card case. this is about the suppression of speech. punishment upheld 1. When it is within the constitutional power of the government a. Need to first establish that it is speech and not a mere action as under Spence ii. 10th A state and local governments have the police power b. having information on hand to get the army ready 3. Not just that there is a message B. the P must be a public official or running for public office 2. Need to prove with CCE actual malice to collect for punitive damages. the P must prove the falsity of the statement (truth is a defense) 4. Where does congress have the power to regulate in this way 2. NY Times v. Spence v. Intent to communicate a specific message AND 2. Sullivan i. Private person.

Then is goes to O¶Brien ± IS (if pure speech not expressive speech SS. subject of his speech ± SS highly values Political Speech. Yes. Johnson i. is it a government restriction on symbolic speech b. Pg 1318 iii. vi. How does the ct view the action ± ct uses what test 1. Flag burning has been regarded as a high level protection to speech over the years and will stand unless the gov can pass SS . this is conduct that communicates b. test: a. is it related to the content of the speech i. Flag Desecration a. Under O¶Brien do the first step and see if the speech was unrelated to suppression of speech? 1. TX v. Narrowly tailored (similar to the analysis as commercial speech not exactly the SS) there may be less restrictive means available but there needs to be a narrow tailoring. b. Government fails SS test ± not compelling enough v. full protections of the 1st A) a. This is an appropriate narrow means of protecting the interest. Dissent ± this is a type of fighting words. is it content based ? yes i.79 b. b. the ct here ruled that it was related to suppression of speech .therefore gets SS (not upheld under O¶Brien) iii. objecting to government policy ± under Spence ii. Goes to deep it holds a special place in the eyes of Americans it should be given a special place in the speech realm. This is a bit of a hybrid test ± a presumption of unconstitutionality ± but it a rebuttable presumption 1. Flag burning protected expressive conduct. No greater than essential in the further of the interest a. we have established that the stnds of review that RB is con and SS and IS are uncon iv. the punishment was related to his message cause he burned the flag iv. Is it expressive under Spence?? a. since it is not deemed to be symbolic speech under O¶Brien then it is pure speech and needs to be viewed under SS stnd to see if the gov has a right to prohibit the speech 1. Really need to look to item # 3 ± then see if you need to apply the O¶Brien test c. Therefore gets protection under the 1st A 2. important to remember if it passes the O¶Brien test it is symbolic speech and only gets IS if it is pure speech it gets SS C. more like a RB approach 4.

Is this representative of our values ii. reasonable and ii. analyzed like a public forum b.disclosures requirement were allowed. Is this what the founders and framers intended and wanted and do we want only people with money to have access to being elected. What places are available for Speech?? A. different matter ± don¶t find that corruptions will happen this way. Contributions ± may be limited a. Committee for Industrial Org . What is a Public Forum? a. $ 1 to pres is ok vii. 1. Expenditures ± may not be limited a. can be limited c. Nonpublic forum (RB test) a. Government Property 1.80 D. Basic premise spending on campaign is expressive conduct. not indented to suppress expression (this cavet) B. the act of congress limited contributions and expenditures 1. Valeo i. Limited public forum ± once opened speech gets full protection a. O¶Brien a. may be reserved for intended purposes. before opened ± non public forum 3. 1) is it related to an expression of speech??? As compared to O¶Brien it is not of the same level v. Spence is satisfied 2. Open Public forum ± speech protected to its fullest extent available under the doctrines 2. so long as i. Giving money to express their views iii. Government Property vs Private Property a. Potential for corruptions justify the limitations ± it narrowly tailored to meet compelling gov interest ± passes SS 2. Private property right trump others speech rights ii. once opened ± post office. vi. Buckely v. Conduct that has expressive qualities. Test: 1. Spending Money as Political Speech a. Ct found that 1. 1. expenditures ± spending to take out an add iv. in the idea that it can create an unfair playing field. The effect of money in campaigns whether and to what extent money can be limited. Congress cant limit spending ± spending has been deemed to be speech. The cases ideas are have been upheld up to this day V. Areas i. Other ruling of ct . Hague v.

the community bears the burden like hostile audience case 1. to keep streets clean is an insufficient reason to not allow speech iii. other ways to enforce the protection of the environment C. Factors the Ct considers in deciding what type of forum an area is (gov has a lot of deference) i. reasonable and ii. Perry Local i. . Scheneider v. city Prohibits handbills. careful because these often become a more content based restriction vi. b. Streets. not indented to suppress expression (this cavet c. Perry Education v. over the years have been open to speech a. sidewalks. streets ± the classic public forum ± 2. iv. so long as i. public parks 2. including teacher mailboxes was held to be a non. may be reserved for intended purposes. each giving way to their protections. can be limited c. This has been dealt with by classifying different types of government property. once opened ± post office. Nonpublic forum (RB test) generally favors the gov decision a. the fact that the teachers union as well as a number of other outside orgs (YMCA. Boy Scouts) were permitted to use the mail system was not enough to convert the system into a public forum. before opened ± non public forum 3. the question arises what publicly owned property needs to be made available for speech and under what circumstances? 1. becomes a factual case by case question ± there want an attempt to suppress any unions v. The Ct considers whether the tradition of availability of the place for speech 1. Once the right to use government property for speech has been recognized. the ct holds that public forum ± there is a free right to speech in a public place streets public parks ± this is the very purpose of these streets to do this b.81 i. sidewalks. iii. Limited public forum ± once opened speech gets full protection a. the use of the school mail system. analyzed like a public forum b. Open Public forum ± speech protected to its fullest extent available under the doctrines. What Government Property can be Used for Speech and Under What Circumstances? a. harder these days even airports have been designated limited instead of open. General i. the ct ruled that the school district rule that no school employee org except the official union could the the system was valid. in order too keep streets clean 1. Different Places 1. NJ i.public forum ii. is not a good enough reason ii. the city has to clean it up and they can punish the litters 2.

82 ii. The Ct also considers the extent to which speech is incompatible with the usual functioning of the place. 1. the greater the incompatibility the more likely the ct will find the place to be a nonpublic forum. iii. Whether the primary purpose of the place is for speech 1. not the primary purpose for airports 2. by this though virtually nothing would be a match ± sidewalk for walking and parks for nature. 3. therefore it should be found to be a public forum if it is an important place for the communication of messages. 4. should find it to be limited if the government opened it to speech D. Public Forums a. General i. Govt property that is obligated to make it available for speech. ii. Can only regulate speech here if: 1. regulation must be content neutral unless the govt can justify a content based restriction by meeting strict scrutiny (Perry) 2. If content neutral, can have a reasonable time/place/manner restriction that serves an important govt interest and leaves open adequate alternative places for speech (Mosley) 3. Licensing/permit system must serve an important purpose, leaving almost no discretion, provides procedural safeguard (ie prompt determination of license requests and judicial denial). 4. Govt regulation of speech in public forums need not use the least restrictive alternative, but it must be narrowly tailored. Content Neutrality - Gov¶t cannot regulate speech based on its viewpoint or its subject matter unless strict scrutiny is met. b. Police Dept of City of Chicago v. Mosely i. There was a Chicago ordinance that banned picketing in front of schools but it exempted labor picketing. Mosely carried a sign that Jones HS was discriminatory. He was never disruptive was on the sidewalk. 1. the ct struck down the ordinance on its face ii. Classic forum analysis ± he was on the street therefore should get full protection iii. Once it is established that you have a protected area for the speech must do normal speech analysis 1. Content based ± a. Yes ± therefore apply SS ± FAILS 2. Content Neutral ± a. NO (if it was apply IS) reasonable time place manner restrictions upheld. E. Private Property and Speech a. General i. There is not a right to use private property owned by others for speech. ii. It is private property and therefore the constitution doesn¶t apply

83 iii. There would need to be a state actor for the con to apply F. Speech in Authoritarian Environments: Military, Prisons, Schools a. General i. Speech thought to be limited in these areas because they are designated ³special´ places b. Military i. The military requires discipline therefore gov restrictions on speech are upheld 1. Air force may stop the person, assumed the risk of limitation of speech c. Prisons i. they have scarified their rights to a large degree with free expression ii. may punish the speech of the prisoners if the action is reasonably related to the legitimate penologoical interest d. Schools ± special type of setting i. Tinker v. Des Moines 1. there was a ban on arm bands being worn to school a. First must ask whether the wearing of arm band is a form of expressive conduct (O¶Brien test ) b. This is pure speech (extremely expressive political speech)passive, silent expression of opinion, unaccompanied by disruption (doesn¶t intrude upon the work of the schools or rights of others). 2. focus on the idea that students and teachers don¶t shed their 1st A rights at the school house gates. 3. Test: student speech is protected absent a showing that it would: a. (whether wearing of the arm bands/ the speech) Materially and/or substantially interferes with the requirements of appropriate discipline in the operation of the school OR i. No material/substantial disruption. School must show more
than a mere desire to avoid discomfort that always accompanies unpopular viewpoints. Speech may be limited when schools cannot function (now it is something less than that

b. Impinge upon the rights of the other students i. Doesn¶t here impinge on other rights of students 4. Dissent ± disagree, Perry public schools are non public forums (argue conduct then not protected ii. Bethel v. Fraser 1. Student gave a sexual speech nominating a candidate at an assembly. He was warned before he gave the speech that the speech was inappropriate and that he shouldn¶t deliver it w/o expecting severe consequences. The school¶s rules prohibited obscene language. He gave the speech and reactions varied from, hooting and hollering to bewilderment and embarrassment. Suspended for three days and name taken off list of candidates for graduation speaker. 2. Main idea from this case is that the School board determines what speech is inappropriate.

84 a. There is great deference by the government in what they determine to be inappropriate unprotected speech in their schools 3. distinguished from Tinker bc there it was political speech the most protected speech of the land. a. Here it was sexual speech that was lesser protected 4. Schools do not have to tolerate lewd, indecent, or offensive speech (even if it is not disruption) if it would undermine the school¶s basic education mission. A lot of deference given to the school board. a. Don¶t necessarily need disruption here we have immature people who were affected 5. Dissent: argued that they still need to demonstrate the disruption the school officials can have deference but not ultimate deference when they cant even show disruption iii. Hazlewood v. Kuhlmeir 1. Student wrote an article for the student newspaper about teenage pregnancy at the high school. It was not allowed to be published b/c teachers thought the identity of interviewed students would be found out. Issue arose to what extent may school limit the rights of students to their press rights. Newspaper free of censorship 2. Ct states that the use of Tinker is not compatible with this situation a. ³we conclude that the stnd articulated in Tinker for determining when a school may punish student expression need not also be the stnd for determining when a school may refuse to lend its name and resources to the dissemination of student expression. i. Hold that there is no offending the 1st A by exercising editorial control over the style/content of student speech in school-sponsored expressive activities as long as their actions are reasonably related to legitimate pedagogical concerns. 1. like an RB test 3. school sponsored activity then is the ultimate test that is to be applied, the Principle¶s action was deemed to be reasonable related to the pedagogical concerns a. a lot of deference to the school officials 4. there is a distinction between tolerating(Tinker) vs promotes speech (go to Hazlewood less protected here than in Tinker) 5. Dissent ± don¶t agree that there is a reasonable pedagogical concern. over inclusive yanked out some protective speech as well. Doesn¶t have a problem with the test but feels it wasn¶t met. e. General Extra Notes i. The very nature of picking books is content based 1. Content decisions cant always be avoided ± have to select painting book and look at content and make a decisions ii. Doesn¶t mean that the lib has to have everything the limitation on these decisions

85 iii. Look to school districts motivation ± yes they make a content distinction but as long as it is for a real reason and not for a political reason that is not ok. 1. It is ok to make distinction based on vulgarly because it is deemed low value speech

Freedom of Association
I. Introduction A. General a. There is no exclusive constitutional right, but it is part and parcel to 1st A speech rights, and therefore is inseparable to the freedom of speech b. Assembly right to gather in groups, in meeting beyond 1 or 2 people large meeting c. Association ± many don¶t assemble, just a group of sorts II. Broken down to a number of areas A. Laws Prohibiting and Punishing membership / punish group membership a. Similar to Brandenburg test b. The government may punish membership only if it proves that a person actively affiliated with a group, knowing of its illegal objectives and with the specific intent to further those objectives B. Laws requiring disclosure of membership a. General i. Straight SS analysis ii. The SC has held that the gov may require disclosure of membership where disclosure will chill association, only if it meets SS. b. NAACP v. State of AL i. wont provide list of members, but it will give the government the names of officers they claim that our rank and file is entitled to privacy in this matter. They have a right to associate without being badgered by the state. ii. The ct agrees it is not necessary to provide a list it would chill speech and the rights of people to associate. 1. there is a threat that they might be punished for there membership a. Violence, loss of job iii. State interest is not sufficient to justify the deterring of association here. 1. Too much of a limitation on this liberty. Not as if NAACP is being secretive on what they are doing. c. Campaign Finance Disclosure i. Disclosures of contributors is upheld because of the gov¶ts compelling interest in stopping corruption, except where there is reason to believe that disclosure will chill contributions to a minor party or candidate. ii. Buckley ± disclosure even though speech (pure speech entitled to full protection) subject to SS

C. Compelled association a. Discrimination is integral to association a. Neither exist so the gov right to stop discrimination is allowed . ct has held that there is a compelling government interest to stop discrimination. 2 part test group may resist the governments if: 1. Southworth i. Test: Freedom of Association is not absolute and that infringements on that right may be justified by regulation adopted to serve compelling state interests. Is it an intimate association ± NO there are thousand of members a. SS is meet by the gov but the group can defend it by showing the additional 2 part test. b. State interest: ending discrimination (Min. US Jaycees i.86 iii. iii. other $ to bring speakers to school. Nothing that now allowing women will not the accomplishment of the goals c. admin of student government. General i. Freedom of association is not absolute. If SS is met by the government and then apply this additional 2 part test: i. What is a small group pg 1407 2. that cannot be achieved through means significantly less restrictive of associational freedoms. ii. 1. To know who is spending what money. unrelated to the suppression of ideas. Government prohibition of association is upheld: a. General gets ± SS b. Intimate association or 2. classic case is student fees to pay liberal people ii. 1. The freedom could be overridden by regulations adopted to serve compelling state interests. unrelated to the suppression of ideas. Test: 1. 1. Laws Prohibiting (punish) Discrimination a. Discrimination is integral to the expression ii. Does this violate freedom of association? (Ds could also claim EPCclass of people is women. distinguished from NAACP ± prevent corruption. State required that the Jaycees allow women to become regular members w/voting rights of their private organization (wm allowed to be associate members who cannot vote. there is a compelling interest ± transparency in the political process. that cannot be achieved through means significantly less restrictive of associational freedoms. SS D. proper standard of review is strict scrutiny b/c it deals w/the fundamental right). integral to express activity iii. Roberts v. Board of Regents v. Public Accommodation laworganizations cannot discriminate). 2. Promoting young men in business b. hold office). 1.

Defer to the groups statement and message.87 iv. since the gov did pass SS and they NAACP couldn¶t get around this by the 2 exceptions there is no 1st A violation. Dale i. Boy scouts v. Is it an intimate group ± NO b. NJ law stops discrimination against sexual orientation. Therefore Go to 2 part test: a. And women are allowed c. ii. need to give deference to the org and what they stand for. iv. Kicked out of the boys scouts. Is the discrimination integral to the expression i. Gay boy scout. Argued a public accommodation law because they meet in public places (not found to be a state actor) The public accommodation laws are upheld gov meets SS 1. Moral character includes sexual orientation and we are going to defer to that.same goes with golf clubs . Public law in. Allowed to discrimination . Boy scouts argued that you being gay goes against the very thing that boy scouts stand for ± the discrimination was an integral part of the association therefore they were allowed to have this restriction iii. It is not intimate association but # 2 is meet.

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