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Judicial Power under the Constitution

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A. Articles of Confederation
1) They were the original source of our Constitution.
a. In place from 1781 – 1789.
b. Nation’s first effort to create a document that would represent the
charter of the US.
c. Enacted b/c the original states believed they needed a unifying force
that would allow them to deal with common domestic and foreign
d. But, DUAL SOVEREIGNTY remained critical.
e. Because of the strong desire to retain sovereignty, the forming
members didn’t create an executive branch in the AOC nor a national
f. The AOC was in place for about 7 years and just wasn’t working.
i. In large part, the reason for failure was jealousy among the
1. i.e., NY has harbors that were choice location for
commerce. So, if another state wanted to use, NY would
tax them. This created much dissension and the loose
confederation was beginning to disintegrate.
g. The framers realized that the specific reason a Revolution was just
fought for, was falling apart at the seams.
i. Thus, they decided to hold a Constitutional Convention to patch
up and tweak the disputes b/n and among the members of the
ii. The Convention was not intended to create a complete overhaul,
but it did.
iii. The result, was the original text of the Constitution. (Doesn’t
include any amendments).
1. Original Constitution – 1789
2. Amendments – 1791

B. Theory of Federal Constitution
1) Two Basic Schools of Thought:
a. Anti-Federalist/Jeffersonian School
i. Cornerstone is civic virtue – doing things for the common good.
1. This may be flawed as a basic premise.
2. Homogeneity.
a. Unfortunately – this applied only to white males.
ii. Anti-federalists would prefer to have no representatives – but
people run the government themselves.
1. This wouldn’t work – too many people.

b. Federalists
i. Prevailing view.
ii. Denounced civic virtue b/c most often people act out of self-
iii. Recognized FACTIONS would form predicated on self-interest,
so decided to create layers of government.
a. Horizontal – Executive, Judicial, Legislative AND
b. Vertical – Dual Sovereignty, Separation of Powers
i. These checks make it harder for
government to work.

C. Judicial Review
a. Is the review by the judiciary of:
i. Federal Law/Regulations/Executive Orders
ii. State Laws/Executive Orders
iii. Cities/Municipalities/Local Laws/Ordinances

b. Judicial review is the power of the judiciary to declare null and void a
law made by any governmental body that makes any law if the court is
convinced the law conflicts with some part of the Constitution.
Marbury v. Madison
i. Rationale is that Constitution comes from the people and is t/f
the supreme law of the land b/c it comes from the people and
trumps all other laws.

i. The Legislative Branch makes the law, the Executive Branch
enforces it – so it follows that the Judicial Branch makes it.

d. There must exist a conflict b/n the law and some provision of the
Constitution in order to be able to go to cord and argue the law is

e. Countermajoritarian Difficulty
i. Judicial review allows one judge to be almost a one person
faction. The majority makes the law and one person overturns it.

D. Interpretation of the Constitution

a. Many of the doubts raised about judicial review rest on a concern that
in interpreting the Constitution, the judges will not be enforcing the
judgment of its drafters and ratifiers, but will instead be influenced by
their own views about how society should be ordered.
b. Home Bldg. & Loan Ass’n v. Blaisdell (1934) indicated we are not
confined to what the framers of the time intended. The Constitution is
not confined to the interpretation of the time of the framers.


i. It is sometimes suggested that the meaning of a constitutional
provision should be ascertained by reference to its original
meaning, or the intent of the framers.
ii. The argument is that the original intent can discipline the judges
and diminish the democratic problems posed by judicial review.
iii. Perhaps the original understanding can make interpretation more
mechanical and more rule-like and also diminish judicial
iv. However, the following questions are worth noting.
1. Whose Understanding?
a. The relevant understanding may be of the original
drafters or of the people who ratified it.
b. In either case, there are problems with trying to
ascertain the intent of others.
c. Is it original meaning or subjective intent?
2. Intent or meaning at what level of generality: the
problem of interpretive intent.
a. Many constitutional clauses are vague and
ambiguous. i.e., the commerce clause, EPC,
freedom of speech clause, etc.
b. How does one decide whether a provision
establishes specific conceptions or general
c. Most likely it was a mixture. Either alone would
produce extremes such as judicial tyranny, etc.

i. Courts and commentators generally agree that the text of the
Constitution is binding on the courts.
ii. However, there are counterexamples even here.
1. i.e., the 1st Amendment appears to only apply to Congress,
but courts apply free speech principles to the executive
and the judiciary too.
i. Sometimes the scope of a provision is determined by reference
to a tradition and the Court’s own precedents. Under this
approach, constitutional law operates as a form of common law,
developing over time, but constrained by the past.
i. An open-ended constitutional provision might be given content by
referring to prevailing morality to some form of consensus.
ii. However, this possibility raises two questions:
1. It is hardly clear that judges are better than legislators
as registers of social consensus.
iii. In light of the fact that the Constitution, or at least the bill of
rights, is often regarded as a shield against social consensus, it
might be odd to suggest that its content derives from that
i. Courts have certain capacities for dealing with matters of
principle that legislatures and executives do not possess.
ii. Some, however, argue that judges are far from a cross-section
of the demography of America.

E. Limitations on Judicial Review

a. Court has the power, but it is subject to legitimacy and interpretive


A. Judicial Review of State Laws by Federal Courts

1) Generally
i. States are sovereign/dual sovereignty.

b. Nonetheless, the Supreme Court may review state court opinions, but
only to the extent that the decision was based on federal law.

i. See Martin v. Hunter’s Lessee (Court said they could exercise
jurisdiction over decisions of state courts in criminal cases and
in cases in which the state was a party).

i. ONLY the Court has the power to interpret the Constitution, so
when there exists a conflict b/n the Constitution and a statute,
the courts must allow the Constitution as they interpret it to

COOPER v. AARON (Key case on this issue)

FACTS: Arkansas refuses to follow Brown, by refusing to
integrate, stating that they are sovereign and the Court
cannot tell them how to run their schools. AK amended their
State Constitution saying that the Supreme Court has no
authority over them. Court REJECTED this argument.


A. Interpreting the Constitution

a. Judicial Philosophy Generally
i. If judge IS concerned with countermajoritarian difficulty, she
is likely to interpret the Constitution narrowly b/c she wants it
to be pure and not have her own ideas added.
ii. If judge IS NOT concerned with countermajoritarian difficulty,
he is likely to read the Constitution expansively b/c he wants to
apply it to the changing times. He views it as a living, breathing

b. Self-Executed Provisions
i. “No brainers” b/c they are plain on their face and thus no real
interpretation involved.

c. Majestic Generalities
i. “Studied Imprecisions” – These are kind of like fuzzy words.
ii. For example:
1. Due Process, Equal Protection, Liberty, Unreasonable
Search & Seizure, Speech, Establishment of Religion,
Free Exercise of Religion
iii. These will be interpreted differently depending on judge’s
judicial philosophy.


a. Text, framer’s intent, structure & relationships, representative
reinforcement (court reinforcement of representative democracy –
fixing what legislature screwed up), natural law (very controversial),

b. Demonstrated in McCulloch v. Maryland:

ISSUE: Whether Congress had the power to enact a law that
created a national bank. HELD: Yes. And, State cannot tax b/c
they would not be exercising power over their own constituents –
but over people whom they have no control
• Congress used the N&P Clause, Art. I, Sec. 8, Cl. 18
• Marshall wanted to read expansively.
a. This means the Constitution isn’t a legal code, so
no need to list everything, but can generalize.
b. Public wouldn’t understand if we listed everything.
c. Nature requires only a great outline should be
d. The rest should be DEDUCED.
e. If general, we can fill in specifically.


A. Political Control of Judicial Review

a. Article V (Constitutional Amendment)
i. The problem with this as being a check and balance on judicial
review, is that it is VERY VERY VERY difficult to pass.
1. Need 2/3 both houses, etc.
ii. Not a truly viable check on judicial review – but it is there.

b. Article II, Sec. 2, Cl. 2 (The Power to Appoint)

i. The reason this is a limit, is b/c it gives the President the ability
to shape the Court ideology.
1. This doesn’t always work. Sometimes Presidents have
been surprised by a judge’s change in ideology.
ii. As a general proposition, it does serve as a check on the
countermajoritarian difficulty.

c. Article II, Sec. 4 (Impeachment)

i. Probably not all that meaningful b/c no S. Ct. justice has ever
been removed.
d. Article III, Sec. 2, Cl. 2 (The “Exceptions” Clause)

i. Congress may limit the Court’s appellate jurisdiction by deciding
what types of cases the Supreme Court may hear.
ii. In theory and textually it is important, but in practice – not
really all that practicable.
iii. For example, consider the Essential Functions Hypothesis.
1. States that Congress cannot destroy the essential role of
the Court in the Constitutional plan.
2. Otherwise, the Court would be read out of the
Constitution and this would ignore the framers’ intent.

Ex Parte McCardle (1869)

While McCardle was appealing his case to the S. Ct. invoking a
habeas corpus act, Congress repealed the Act fearing the
case would be a vehicle for invalidating the reconstruction
plan. Thus, the Court had to dismiss b/c their appellate
jurisdiction had been taken away.
HELD: Without jurisdiction, the Court cannot proceed at all
in any cause.
As a practical matter, this would probably not still be good
law today.

a. This is the concept of legitimacy.

B. Self-Imposed Limitations on Judicial Review

These are

1) JUSTICIABILITY: Standing, Ripeness, Mootness and Political Questions.

a. STANDING – The “case or controversy” requirement of Art. III.

• Plaintiff MUST have this.


a. π must show that he has suffered an actual,
concrete, individualized injury OR that he is in
imminent danger of suffering one.
i. No standing for speculative or generalized
grievances. (Allen v. Wright)
ii. Examples include:
1. Economic, aesthetic, conservational,
recreational, physical, emotional,
lack of opportunity, etc.
Standing Requires a. These are all legally
the Demonstration
of all Three cognizable, but this doesn’t
automatically mean one has
standing. P must personally
suffer the injury.
a. Defendant’s conduct must be the proximate cause
of the injury, which is fairly traceable and not too
a. Court must be able to remedy, correct or redress
the injury.

Lujan v. Defenders of Wildlife

Court said redressability problem b/c the Court’s
decision wouldn’t remedy the situation and also
that the Agency wasn’t a part of the case. If
plaintiffs could have shown their livelihood
depended on the area harmed (scientist, etc.) OR
that they regularly view the area for aesthetic
purposes, they may have had standing.

1. The Citizen Suit Provision
a. It provides, in pertinent part, that “any person
may commence a civil suit on his own behalf (A) to
enjoin any person, including the US and any other
governmental instrumentality or agency…who
alleged to be in violation of any provision of this
i. Would appear to mean that anyone could
bring an action – irrespective of the
standing requirement.

i. Still MUST have suffered an injury in fact
AND be able to meet the prongs of
causation and redressability.
2. The Third Party Rule
a. A person may NOT bring suit on another’s behalf
(except for legal guardians) nor for the public at
i. An association is generally allowed to bring
suit on behalf of one of its members.
3. No Taxpayer Standing
a. Generally one who claims his injury arises from his
status as a federal taxpayer does not have
i. If a tax or spending program violates the
Establishment Clause.
c. State and municipal taxpayers probably have
standing to litigate the legality of state
expenditures, but a municipal taxpayer definitely
does to litigate expenditures of city.

b. POLITICAL QUESTIONS – The Court will not hear a case if it
believes the issue involves a question best decided by another branch of
government, it is a separation of powers thing.
• In reality, political questions are rare.
• Factors that may influence the Court are: (LAF for Political
1. Constitutional commitment of issue to another branch of
government. [Impeachment]
2. Lack of judicially manageable or discoverable standards.
Baker v. Carr [No redressibility]
3. Inability to decide case w/o making a policy decision best
left to other branches.
4. A decision would show lack of respect for another branch.
5. Unusual need to adhere to a previous policy decision.
[Ex Parte McCardle]
6. Possibility of embarrassment to government from
separate pronouncements on the same issue by different
7. Impeachment [US v. Nixon (the judge)]
a. Court is still lurking here. They say if Congress
doesn’t do it right, we’re still here to help.
8. Guaranty Clause arguments. [Baker v. Carr]

c. MOOTNESS – A case may not be heard if it is moot. A case is moot if

it is raised as a live controversy at the time the complaint is filed, but
events occurring after the filing have deprived P of a stake in the
controversy. Doesn’t happen that often. i.e., DeFunis Case (law school
student who was admitted)
1. Exception: “Capable of repetition but evading review.”
 If the P’s case has become moot, but another person
might be injured in the same way by the same D, the
court will NOT declare the case moot.
• i.e., Roe v. Wade (abortions) Still allowed to
pursue claim, b/c every abortion case, by virtue
of the passage of time, would get to court
after the fact.
• This is where it starts to get a little hairy, but
it doesn’t happen that often.
2. Exception: Voluntary Cessation
 If the D voluntarily ceases the injurious conduct, the
court will NOT declare the case moot. (He could
return to his old ways).

3. Exception: Collateral Consequences
 A case will NOT be moot if even though the
controversy might be decided, there are still
collateral consequences that might be adverse to the
• i.e., A convicted criminal challenges the
constitutionality of his sentence, but the
sentence runs before his case is heard. The
collateral consequences might be loss of the
right to vote, difficulty in obtaining
employment, etc.

d. RIPENESS – The opposite of mootness. The controversy has not yet

arisen or has not yet become sufficiently concrete to be easily
adjudicated. The P need not already suffered harm, it is enough that
there be specific threatened harm; a reasonable probability that some
specific harm will occur w/o court action.

Rights Protecting Provisions in the Constitution
* * *


A. State Action Generally

1) The Constitution only protects individuals from government interference
(state or federal) and not from the actions of individuals. Rationale is personal
autonomy and federalism.

Civil Rights Cases

First CRA made it a crime to discriminate on the basis of race.
Court invalidated stating that you can’t make the 14th
Amendment applicable to private persons due to state
sovereignty and personal autonomy.

US v. Morrison (Violence Against Women Act)

Congress sought to give the victims a federal remedy. Court
said NO b/c can’t impose 14th Amendment protections on private
individuals, so the law was invalidated.

2) The state action requirement does not apply to protections afforded by

statute (CRA, ADA, FHA, etc.).

3) Individuals have the right to sue the actor if the actor is acting on behalf of
the government. (i.e., police, govt. agencies, Amtrak, judges, prosecutors,
public school teachers, etc.) and does something to us as individuals that
violates the Constitution and we are injured.


B. Two Ways in which Government Acts

1) Obvious State Action
a. If the violation is a result of straightforward action by the
government, the next step is to determine which constitutional rights is
being infringed or violated.
b. Examples include making and enforcing laws, ordinances and regulations
(federal, state, local).

2) Non-Obvious State Action

a. If the action is not made directly by the state, the actions of the
person or entity committing the violation of Constitutional rights must
be converted into state action.

1. Public Function
 Where a function that is normally the exclusive and
traditional power of the state is delegated to a
private actor. (Flagg Bros.)
 Private person essentially becomes an agent of the
 Ex: company town, park
Note: Very few functions exclusive to the state
(military, elections).

2. Joint Action (b/n state and private entity)

• Acting in concert or creation of a mutually beneficial

Lugar v. Edmonson Oil

The seizing of a person’s property by writ of attachment
executed by a sheriff on behalf of another private entity is
state action.
Racial discrimination by a business (Restaurant that was
attached to state owned parking garage) that leased space in
a state facility from the state is a state action (mutually
beneficial entanglement) for purposes of the 14th Amendment.
The state may not profit from discriminatory behavior.
Independent contractors (a private school whom the state
paid to take difficult students), from whom the state does
not profit, are NOT in a symbiotic relationship with the state
for purposes of state action.
Father severely abused his child which resulted in permanent
brain damage. Father wasn’t a government actor, but there
was a connection b/n the child protection state agency and
the father – which arguably established joint activity. Also a
connection b/n court who gave the father the child. Plaintiff
tried to say conversion took place b/c DYFUS allowed father
to keep child and the government allowed the father to
maintain custody. Court rejected father’s argument.

• Note, however, acquiescence or inaction by the state

in the face of another private person violating one’s
civil rights is NOT joint action.

3. Government Coercion or Significant Encouragement
• If the state exercises coercive power over the actor
or significantly encourages his behavior, it may
convert the action into state action.
• Note, however, acquiescence or approval of a private
party’s actions is NOT sufficient to convert the
action. (Blum)

Shelley v. Kraemer
The sellers were private actors that need to be
converted. The lower court is making the willing seller
commit and act of racial discrimination – this established
the conversion b/c of coercion. Judicial enforcement of a
private restrictive racial covenant is state action for
purposes of the 14th Amendment.

Granting of licenses by the state is not encouragement or

Power Granting Provisions in the Constitution:
Congress and the Executive
* * *


A. Generally
1) Congress’ Power is Deriven From...
a. Limited Enumerated Powers
i. Congress must point to power and tie it to text of Constitution.
b. Federalism
c. Strands of Federalism
i. Commerce Clause
ii. 14th A, Sec. 5
10th Amendment is a iii. 10th A Enclave
LIMIT 1. If the federal government doesn’t have it – it doesn’t
on Congress’ Power
have it. The power resides with the states.
iv. 11 A Enclave

1. Bars any federal suit against any one of the states by

citizens of another state, or by citizens of foreign

B. The Commerce Power, Art. I, §8, Cl. 3

Threshold Issue:
Any time you have a question in which Congress is doing something, first ask yourself:
“Can what Congress is doing be justified as an exercise of the Commerce Power?”
Most of the time the answer is “yes.”

1) Generally
a. Gives to Congress the power to regulate INTERSTATE COMMERCE
Note: Lopez reigned in the power of Congress by requiring the
regulated activity must have a substantial economic effect on ISC.

b. If the activity is traditionally regulated by the state, however, the

court will give this some weight. But, if the activity is truly interstate
Congress automatically has the power to regulate.

c. Little deference is given to Congress anymore, simply b/c they may have
believed the activity has the requisite substantial effect on ISC. The
Court will decide this for themselves.

2) What is ISC?
a. ACTS of ISC
The most obvious, a person in one state sells something to a person
in another state.

Highways, waterways, internet, air traffic.

People, machines, trucks, trains and other “things” used in carrying
out commerce.
(Ex: Congress could probably say that every truck must have a
specific safety device, even if the particular truck in question is
used exclusively w/in a single state).

Which have a substantial effect on INTER-State commerce.

US v. Lopez
Congress made it a federal crime to possess a firearm in or near a school.
The act applied even if a gun never moved in or affected ISC. HELD 
Statute went beyond Congress’ Commerce Power b/c the activity being
regulated did not have a substantial effect on ISC.

US v. Morrison (VAWA)
Congress says that any woman who is the victim of a violent gender-based
crime may bring a civil suit against the perpetrator in federal court. HELD
 Congress went beyond Commerce Power b/c violence itself is not a
commercial activity and the connection b/n gender-based violence and ISC
is too attenuated for the violence to have a substantial effect on ISC.

3) Rational Basis Review

a. The court will look only to see if the means chosen by Congress are
reasonably related to the objective. Usually deferential to legislative
findings, but less so since Lopez.

4) 10th Amendment (Enclave)

a. If the law or regulation passes the RB test, it still must NOT violate
the 10th A by infringing on powers reserved to the states.

NY v. US
Congress provides that each state must arrange for the disposal of toxic
waste generated w/in its borders, or else be deemed to “take title” to the
waste and thus be liable for tort damages arising from it. HELD 
Congressional scheme violated 10th A b/c Congress may not force a state to
enact and enforce a federal regulatory program.

Printz v. US

Congress can’t order local sheriffs to perform background checks on
applicants for handgun permits.


1. Is the activity being regulated “commerce?”

2. Is the activity “economic?”

• Term from Lopez that is still developing.
• However, we know what is not economic.
If NO  STOP! Congress has no power to make the law.

If YES 

3. Is the effect on commerce “substantial?”

• We aren’t sure exactly what that means at this juncture. The Court has
repeatedly rejected activity that is too attenuated. You can’t pile on inferences to
show something substantial (Wickard Exception).
NOTE: Watch for this on exam.
3. Is it inter or intra state?
a. If truly interstate, Congress AUTOMATICALLY has power.
(Ex: acts, channels, instrumentalities)
b. If intrastate, does the activity have a substantial impact on ISC?
(Ex: Katzenbach, Heart of Atlanta Motel)

4. Does it violate the 10th Amendment OR any other Constitutional provision?

C. The War Power

1) Generally
a. Only Congress may declare war.

b. The danger with the War Power is that is authorizes Congress to do

things b/f, after and during the war – so long as they can tie it in to
the war.
(i.e., Japanese internment)

c. Congress still must link to War power.

d. Power stops when Court says it stops.

D. The Treaty Power

1) Generally
a. Senate must give their advice and consent in order for President to
make a treaty.

2) 10th Amendment
a. NO DEFENSE to treaties b/c the people gave this power to the US.
(Missouri v. Holland)

b. However, treaties and laws enacted pursuant to them generally may
NOT violate other Constitutional protections such as the BOR 1-8.
(Reid v. Covert)

E. The Tax and Spend Power, Art. I, Sec. 8, Cl. 1

1) The Tax and Spend (T/S) Power, Art. I, Sec. 8, Cl. 1
• Must be naturally and reasonably adapted to the collection of
the taxes and not solely for the achievement of some other
purpose plainly within state power.
• 10th A is a potential defense for states.
the United States.
1. General Welfare
a. Pretty expansive. (Butler)
b. Isn’t really a significant limitation.


2) Conditional Spending, Coercion and the Political Process

a. Generally
• Conditional spending means the government buys regulation that
it doesn’t otherwise have the power to enact on its own. In
essence, it bribes.
c. Drinking Age
i. “We’ll give you more $$ if you raise the
drinking age to 21.”
d. Highway Speed Limit
e. Drug Free School Zone.


1. The exercise of the spending power must be in pursuit of the general welfare.
a. This is easy – almost everything fits here.

2. The conditions must be clear and unambiguous.

a. So each side knows what the ground rules are.

3. The condition(s) must be related to a federal issue and there must exist a proximate and causal
connection b/n the condition and the general welfare.

4. Condition must not violate any other Constitutional provision – especially the 10th Amendment.
Congress may purchase regulation but need to meet the four requirements.

F. Power under the Reconstruction Amendments
1) Congressional Enforcement of Civil Rights
a. 13th Amendment abolished slavery and involuntary servitude.
• Is NOT explicitly limited to government action.
• Permits Congress to stamp out the “badges of slavery.”

b. 14th Amendment requires states to give due process, equal protection

and privileges and immunities.
• Unlike the 13th A, it does NOT reach purely private


UNDER §5 of the 14th AMENDMENT

1. If the Law is to Create a Remedy

a. Congress may enact a law in response to judicially recognized rights.
b. If law involves an issue the Court has not addressed, may not be ok b/c Congress would be
trying to define the meaning which they most likely don’t have the power to do.
2. If the Law is to Prevent a Violation
a. Fuzzy area (government says they’re trying to prevent a violation, challenger will say they’re
trying to define the meaning).
b. There must exist a nexus b/n the injury to be prevented/remedied and the means adopted to
that end.
3. If Congress is Defining the Meaning
a. Congress may not define or interpret what constitutes a violation of the 14th Amendment, nor
may they limit, dilute or expand the Court’s interpretation.
b. Judiciary solely has the providence to say what the law is.
i. NOTE: Ratchet-Up Theory (Katzenbach) allows Congress to “ratchet-up”
constitutional protections beyond what the Court says they are – but never down.
Boerne Court REJECTED this theory – although Katzenbach is not overruled.


A. Generally
1) Congress may have its scope and power present when it makes a law.
2) Some of the implied checks are in the Constitution. (freedom of speech, etc.)
a. So, even though something may be w/in Congress’ power, it may
nonetheless be unconstitutional b/c it violates another part of the

B. 10th Amendment
1) Generally
a. Congress generally may not legislate in an area reserved to the states,
nor force a state to regulate.
New York v. US
Challenge to nuclear waste regulation act that Congress required states to
adopt after conferring with all legislatures and they approved it. New York
alleged the take title provision of the Act violated the 10th Amendment and
notions of federalism. The Court agreed. Thus, even if the states acquiesce to
the imposition of the regulatory scheme or the enacting of a law – it is still
Printz v. US
Challenge by CLEO of Arizona to Brady Bill requirement that he participate in
the enforcement of the anti-gun legislation by conducting background checks
until the national system is up. The Court held that violated federalism and the
10th Amendment, stating that Congress had the power to enact the Brady Bill,
but the federal government could not make the states do the work – they have
to do their own work.

LAF FOR 10TH Amendment

1. The Federal government MAY NOT direct, commandeer, coerce or compel a state to do something.

2. The Federal government MAY influence, encourage and urge a state to do something by the use of
incentives like federal funding.

Coercions violates the 10th Amendment – encouragement does not.

This is a little bit of a word game you have to play – make the argument.

C. 11th Amendment
1) Generally
a. 11th Amendment basically creates sovereign immunity for the states to
be free of lawsuits brought against them in federal courts for money.

b. Does not bar:

• injunctions
• suits by one state against another state


Used for STATE LAW ONLY – not federal law!!

A. History/Evolution of the Dormant Commerce Clause
1) The principle that state and local laws – even if lawful – are unconstitutional if
they place an undue burden on ISC – even if Congress hasn’t acted and no
preemption is found.

2) Used by Congress to enforce their power.

3) Congress’ power to regulate commerce is not exclusive – so a problem may

develop where both the state and federal government are regulating commerce
in the same area at the same time.

B. Threshold Issues
1) Is there Preemption?
a. If YES  State law will fail.
ALWAYS check
first to see if there b. Three Types:
is some type of
preemption – b/c i. Express
state law will then
fail. 1. A statute that explicitly indicates a federal law
ii. Field
1. Congress has made the decision to occupy the entire
field so there is no room for the states to supplement it.
a. i.e., environmental regulation.
iii. Conflict
1. A conflict exists b/n state and federal law.
2. Due to the supremacy clause – federal law prevails.
3. There must be a physical impossibility to comply with
both laws at the same time.
(Ex: FDA requires a certain label on a box, state requires
a certain label on the box. Can’t have both so FDA wins).

2) Has Congress given its consent?

a. If YES  state law may be ok.
b. Even though Congress may preempt, they may give a pass to regulate in
the commerce area.

C. Discrimination Against Out-of-Staters
1) Generally
a. Watch for intentional discrimination against out-of-staters.

b. If the state is promoting its residents own economic interests, this is

not a legitimate state objective and the regulation will almost
automatically violate the Commerce Clause. This is simple economic
protectionism which is virtually per se unconstitutional.

Hunt v. Wash. State Apple Advertising Comm’n

NC law required all containers of apples in the US to have “US Grade”
stamped on the containers. Wash. had their own branding b/c they
had a higher standard than “US Grade.” Thus, when NC makes the law,
WA must change their stamp or can’t sell apples in NC.
DCC applies with no exceptions (If state of NC owned the trees it
wouldn’t apply b/c they’d be a market participant). Economic Prot?
Yes, b/c they’ll be less Wash. apples so NC residents will buy more NC
fruit. Apply Pike if needed.

West Lynn Creamery v. Healy

Law taxed milk in and out of state but subsidized in state.
Does DCC apply? Yes. No exceptions. Simple Economic
Protectionism? Yes. Most likely wouldn’t even need an expert here.
Typical case of ec. prot. is taxing goods importing from other states.
State was promoting their own milk.

c. Examples:
• Embargo of Natural Resources – laws that prevent scarce natural
resources from moving out of state are closely scrutinized (i.e., a
state charges higher taxes on oil destined for out-of-state than
for in-state use)
• Environmental Regulations – States may not protect their
environment at he expense of their neighbors.
Phila. v. New Jersey
NJ state law prohibited importation of out of state waste claiming
environmental concerns. Waste = Commerce. NJ was not a market
participant. Court found simple economic protectionism. The law
benefited the in state residents by stabilizing the cost of disposal and
discriminating against out of state dumpers. Created an embargo that
went against united and national market theory.
• Do the Work in Our State Laws – Statutes that pressure out of
state business to perform certain operations within the state are
likely violative of the DCC.

2) Rare Exception
a. If the state has no other way to protect the health, safety and
welfare of its citizens the law may be allowed to stand. (Ex: quarantine
laws). Note, however, often used as a smokescreen.

Criteria for Determining whether the State Law Violates the DCC
(Two Frameworks)


• Here, the state is trying to protect their own interest at the expense of the nation.
• Evils (what would happen if everyone regulated for their own interests):
a. Barrier to national unity.
b. Inhibition of free trade.
c. Economic balkanization.
d. Downgrading the quality of our goods/life (i.e., apples case).
What is the
1) Purpose AND
2) Effect
of the law?

Does the state law favor in-state interests at the expense of out-of-state competitors?
If yes  then virtually per se unconstitutional. (due to above-mentioned evils)
Rare Exception: If the state has no other way to protect the health and safety of its citizens
the law may be allowed to stand (i.e., quarantine laws).

If no economic protectionism PROCEED to Pike Test.

Not all state laws are economic protectionism – but may still violate C/C.
Thus, to determine the constitutionality of these type of laws, we use the Pike Test.


If the law is NOT simple economic protectionism, use this test to see if the burdens created on ISC are

1) The burden placed on ISC by the law may not be excessive in relation to local putative benefits.
2) No less burdensome alternative may exist. If it does, the current law will be invalidated.
Exceptions to DCC
1) Quarantine Laws
1. Does the DCC apply at all -- is there a state law in the commerce area?
a. State makes a law about diseased things entering their borders  This is OK.
2) Market Participant
2. Is a.
theIfstate regulating
the state or participating?
acts as a market participant, it MAY favor local over out-of-state interests. b/c
If state
a. they is aas
are acting market participant
a private actor.  DCC does NOT apply.
Proceed to LAF for P&I Clause.
i. Government owns a cement company, and in connection with buying and selling
cement, government is acting. Thus, they are a participant and not a regulator.
3. Was thereii.a preemption
Because they problem?
aren’t regulating, they aren’t subject to the C/C.
a. If yes  Proceed to LAF for preemption.
3) Preemption

4. Was there a quarantine law?

a. If yes  DCC does NOT apply.

5. Is the law economic protectionism in purpose or effect?

a. If yes  per se invalid.
b. If no  proceed to Pike test.

If a law passes the DCC challenge, but the law affects individuals, 23
apply the Privileges & Immunities LAF!!!

DCC does NOT deal with Congress’ power to make a federal law.
If you see a federal law on the exam, the question is whether Congress had the power to make the law.
The issue would not then be the DCC.

D. Interstate Privileges & Immunities Clause/Art. IV, Sec. 2, Cl. 1

Note: This is different than the P&I Cl. of the 14th Amendment which prevents
states from denying certain rights of “national citizenship” like the right to travel
1) Generally
a. Prevents states from discriminating against non-residents’ fundamental

b. In any case in which out-of-staters are discriminated against by the

state acting as a “market participant,” the statute may be vulnerable to
attack based on the P&I Clause.

c. Market Participant Exception does NOT apply to the P&I Clause.

United Bldg. & Constr. v. Camden

City ordinance required that all contractors on city projects employ at least
40% Camden city residents. Court states that the PI& Clause bars any type of
state conduct – regulatory or otherwise – which discriminates against out-of-
staters on matters of fundamental concern. Court held that the right to
private employment (not government) is fundamental, but unsure if city purpose
of curing middle class flight and inner city deterioration was a substantial
reason. Remanded with respect to finding of fact.

Test/LAF for Privileges & Immunities Clause

For HUMAN BEINGS only !!!
Use EPC for corporations or legal entities.

1) Does the state law burden a fundamental right of an individual/citizen?

a. Fundamental rights are those essential to the livelihood of the nation as a whole.
(i.e., employment, living wage, etc.)

2) If yes, the state must

a. Show a substantial reason for the discrimination AND
b. The discrimination must bear a close relationship to the reason.


A. Horizontal Separation of Powers

1) Scheme:
a. Legislative, Executive & Judicial  HORIZONTAL
b. Federal & State  VERTICAL

2) Framers did this to prevent tyranny. They also thought it would be more
efficient in terms of getting work done.

3) Not strict but a “blending.” Some encroachment as a check and balance.

4) Bicameralism and Presentment Provision (Art I., Sec. 7, Cl. 2)

a. This means we have two bodies (bicameralism) that make law.
b. But, before it becomes a law, the President must check it
(presentment). This is an executive check on the legislative branch.

B. The Power of the Executive in Domestic Affairs

1) Sources of Executive Power/Textual & Implied
a. Art. 2, Sec. 1, Cl. 1 – Executive Power
Inherent b. Art. 2, Sec. 3 – Take Care Clause
Powers i. To take care that the laws are faithfully executed.
c. Art. 2, Sec. 2, Cl. 2 – Commander and Chief Clause
d. Foreign Affairs Power – This is not expressly stated in the Constitution,
but is understood and implied from:
i. Commander-in-chief and Treaty power
ii. Historical “gloss” on Executive power
iii. Sovereign transfers: country needs one voice on foreign affairs
e. Practical powers: “Leader”
i. elected by the people, dominates the media, head of political

2) Executive Powers
a. Execution of Laws
i. May only carry out the laws – he CANNOT make the laws.
1) Ex:
a. Youngstown (Steel Case)
• On the Executive Power
o The Gloss (Frankfurter’s concurrence)
said the executive power has a gloss
that means more than mere executive
power. Nonetheless, gloss doesn’t reach
far enough here to justify Truman’s
o The Twilight Zone (Jackson’s
concurrence) three situations when the
President acts:
1. Acting pursuant to Congress –
express or implied
2. Contrary to Congress’ Wishes – steel
3. “Twilight Zone” – no law supports or
b. Dames & Moore v. Reagan
i. Pres. froze assets during Iranian war crisis.
Court said ok – big difference b/n this and
steel case is that it involved foreign power.
c. Line Item Veto unconstitutional b/c violates the
Presentment Clause (Clinton v. City of NY)

b. Treaty and Foreign Affairs

i. Make treaties with foreign nations.
1) So long as 2/3 of Senate approves.
ii. Appoint ambassadors.
iii. Controls foreign policy (IMPLIED) b/c:
1) Important to have one voice
2) Commander-in-Chief and Treaty Power
3) Historical “gloss” on Executive Power

c. Appointment of Federal Officers (Appointments Clause)

i. Ex: cabinet members, federal judges and ambassadors.

1) BUT Senate must approve by majority vote.
ii. If an inferior officer, Executive may only appoint if Congress
has delegated that power to him.


1) Is the officer a principal officer?

a. If YES  ONLY the President has the power to appoint.

2) Is the officer an inferior officer?

a. If YES  Congress may vest the power in another branch.
i. Executive
ii. Judiciary
iii. Head of Department
NOTE: The appointment power vested must be congruent with the function of the
particular branch of government.

d. Removal of Federal Officers

i. This is implied – Marbury.
ii. President may remove any officer without cause.
iii. EXCEPTIONS/Need Cause If:
1) An officer who was appointed with a specific term of
2) An officer who performs a judicial or quasi-judicial
function. (Morrison v. Olson – Special Prosecutor Case --
Congress says removal is allowable only for good cause or
other inability to perform duties).


1. Does the limitation impede the Executive’s power to perform his constitutional duty?
(Vague – But all we Have)
a. If No  It’s OK.

2. Some limitation is OK, so long as it doesn’t impede, unduly trammel executive authority,
impermissibly burden Presidential power to control or supervise the independent counsel or
sufficiently deprive the President control over the independent counsel.

C. Executive Privilege
1) Generally
a. Presidents have a qualified right to refuse to disclose confidential

information relating to the performance of their duties. This is an
implied right and arguably promotes candor.
This privilege – since qualified – may be outweighed by other compelling
government interests.

b. Privilege is strongest when invoked for national security, defense and

diplomatic affairs, and lowest when asserted to protect non-national
matters (Ex: Clinton sex scandal).

FW For When Executive Privilege is Challenged

1) Executive claims the privilege.

2) Court conducts an in camera review/judge may redact.

3) Reveal basis of privilege – CRITICAL analysis for person invoking privilege.

(Ex: national security, need for candor, diplomatic, etc.)

The court performs a balancing test b/n:

4) The degree of disclosure requested.

(Ex: may just want background info on meeting like in Enron)

5) Purpose for asking for disclosure.

(Ex: public interest like in Enron b/c pensions were diminished, influence peddling)

If 4 and 5 outweigh the privilege – it will be pierced.

US v. Nixon
Need for President’s evidence in a criminal trial outweighed the
President’s vague need to keep information confidential.

HYPO/Current Application
d. Enron Debacle
i. The GAO wants to know who was present and what was discussed
at the Energy Summit and the Pres. & VP are invoking their Exec.

D. Executive Immunity (Art. 1, Sec. 3, Cl. 7)

1) Generally
a. This is an implied right.


i. The President has absolute immunity from civil liability for his
official acts. [Fitzgerald Doctrine]

i. There is no immunity from President’s unofficial acts, including
those taking place before he took office. (Clinton v. Jones).

i. No immunity.


i. All other federal officials, including presidential aides.
ii. Immunity is lost if they violate a clearly established right –
whether intentionally or negligently.

E. Impeachment
1) Generally
i. Sole power of passing articles of impeachment – need 2/3 vote.

i. Sole power to try the impeachment – need 2/3 to convict.

i. “…shall be removed from office for Treason, Bribery or
other High Crimes and Misdemeanors.”


i. Probably only serious crimes and non-criminal abuses of power.
Whatever the House and Senate agree to


A. Generally
1) Over time, Congress has abdicated/delegated/surrendered much of its
power due to:
1. Workload/Efficiency
2. Expertise
3. Accountability

2) The most significant development was the creation by Congress of federal

administrative agencies (EPA, FHA, FDA, etc.)

B. Federal Administrative Agencies
1) Generally
a. Housed within the Executive Branch.

b. Agencies are headed by Presidential appointment – not elected by


c. Immense power -- some call them the fourth branch -- not only not
within the Constitution – but it is unchecked raw power.

2) Legislative Efforts to Restrain Agencies

a. One House Veto (aka Legislative Veto)
i. If agency does something you don’t like, only requires one house
to undo what the agency has done.
ii. This was done hundreds of times and then challenged and
overturned in INS v. Chadha (Court says problem with legislative
veto is that it concentrates too much power in one house).
b. Appropriations
c. Oversight Committees
i. This is a check on the agencies.

C. Appointment & Removal Power

1) Generally
i. Congress has the power to vest (to give away) the power to
appoint inferior officers to:
1. President
a. w/advice and consent of Senate
2. Courts
a. But power must be congruent with a normal
function of the court.
3. Heads of Departments

2) Who is a principal or interior officer?

LAF for Determining Who is a Principal or Interior Officer

(Morrison v. Olson)

If the officer appointed is not a policymaker – but rather – a policy implementer (not at the
higher end of the pecking order)  they are an inferior officer.

is not a bright rule.
* * *


A. Equal Protection Generally

1) Which Provision is Affording Protection?
14th Amendment which ONLY applies to states.

The “Equal Protection Component” of the 5th Amendment’s Due
Process Clause.

c. If an action would be a violation of equal protection for a state, the

same action would be unconstitutional if done by the federal
government via the 5th A DPC.

d. Look for state action in private discrimination!! Conversion!!

e. any “person” – it does not say citizen – this would include the terrorists.

2) Separate but Equal & The Road to Desegregation

a. Even if everything is equal, this is still a violation of the EPC – b/c not
likely “truly equal.”

Plessy v. Ferguson (1896)

Law required separate RR cars for blacks and whites. Appeared facially
neutral. Court says OK and that the standard is reasonableness.

Gaines (1938)
Separate but equal starts to erode here. Univ. of MO had a law school
that was racially segregated. Gaines wanted to go to law school in MO, and
MO’s Board say no, but we’ll pay for you to go out of state. Court held
this UNCONSTITUTIONAL, indicating it was denial of a legal right to the
enjoyment of a privilege which the state had set up.

Sweatt v. Painter (1950)

Sweatt was denied admission to UT law school b/c a parallel school opened
after litigation commenced. It was “separate but equal.” The Court
rejected this doctrine and ordered the admission of Sweatt, holding that
the facility was in fact not equal.

Brown I
Court held separate is inherently unequal. This is a HUGE LEAP!
Interesting to note that the Court based its finding on social science – this
created a lot of controversy.

Keyes (1973)
This was the first northern desegregation case. The district court found
that the Denver school authorities had used gerrymandering attendance
zones, school constr. policies and other devices to purposely keep one part
of the city’s school system racially segregated. However, even though the
discrimination was isolated to one part of the system – it may nonetheless
serve as a predicate for systemwide relief. This is the KEYES
PRESUMPTION. Can lead to interdistrict remedy if intentionally
segregative action in a meaningful portion of school board system (i.e.,
White Flight).

Milliken II (1974) [Interdistrict Relief]

Court lacks the power to impose interdistrict remedies for school
segregation absent an interdistrict violation. (This could be tough to prove
– which is bad b/c it means segregation and white flight remains.)

3) Four Ways in which Government Can Act on Race

a. Facially Discriminatory
Race is being used to burden persons of that race.

blacks expressly disadvantaged on the face of jury restrictions

where Japanese were discrim. against based on their race

b. Facially Neutral with Disproportionate Impact

The face of the government action is race neutral, but the effect
of the action disproportionately burdens persons on the basis of
their race.

McClesky – GA’s facially neutral capital punishment law is being

administered 4x more against black Ds than white Ds,

Washington – facially neutral entrance exam whose effect falls disprop. on

African Americans.

c. Segregation Laws

Loving – Antimessegenation statute that is racially based, but in theory

doesn’t burden either side.

d. Affirmative Action Measures.

Government is facially making a decision based on race, but to
benefit suspect group. Crosen

B. Government Classifications and the Concept of Equal Protection
1) Generally
a. The EPC has been expanded (beyond race) to include:
1. Suspect Groups
a. Involves traits that are mostly immutable (gender,
national origin, age, birth, physical or mental
disability, lifestyle and sexual orientation)
2. Fundamental Rights
a. Procreation, voting, family living arrangements,



1) Is there government action (State or Federal)?

a. May be obvious OR nonobvious.
b. State = 14th Amendment EPC
c. Federal = 5th Amendment DPC
If purely private action – equal protection does NOT apply (try to convert, however)!!

2) Has the government created a classification?

a. This will determine the level of review.

b. To determine a classification, look at:

1. Text of the law, regulation or policy (facially benefiting or burdening).
2. Intent of the legislators, regulators or policy makers.
3. Circumstances surrounding the implementation.

A law could create several classifications –
which would affect the level of review.
Mention each on exam.

Suspect Classifications
Triggers heightened scrutiny.
A classification is suspect if it is a discrete and insular minority
(FN 4, Carolene Products):

1. Victims of historical discrimination.

Candidates: 1. Members of a politically weak group.
Race (always), gender, 2. Membership in the group is based on immutable
alienage, ethnicity, etc. characteristics.
3. Legislation would stigmatize the class in the eyes of
society (Strauder).

NOTE: Classifications based on mutable characteristics
“In spite of” does not (social, economic) will generally get low level
create an invidious review.
Facially Racially Neutral Law with Disproportionate Impact
“Because of” does
The challenger must prove an invidious purpose – otherwise – RB
create an invidious review.
If statute is race-specific  Strict Scrutiny
If statute is not race-specific  RB.

Finding an Invidious Purpose/Village of
Arlington Test
1. Events leading to the decision to implement.
2. Procedural and substantive irregularities and departures.
a. Ex: No public hearings.
b. Ex: Law hasn’t changed in 50 years.
3. Legislative History
c. Comments by lawmakers
4. Historical Context
5. Statistics
a. Not dispositive, must be in context.

Washington v. Davis (1976)

A test to enter the police academy had a low pass rate for
minorities. HELD  Mere disproportional impact is not enough to
violate the EPC. There must be some purpose to discriminate
(invidious purpose) in order to be unconstitutional. Qualified
police officers is a rational legitimate state interest, so the law is

Race-Specific Classifications that are Facially Neutral

ALWAYS strict scrutiny!! Because law is invidious on its surface.

Loving v. VA (1967)
Mr. Loving married a black woman in violation of VA’s
antimiscegenation law. The state’s claim was that the law was
sound on the fact that blacks and whites would be punished equally
under it and that this was sufficient. The law was arbitrary and
invidious. HELD  No legit. purpose for having such a law. All
racial classifications get SS.

3) What is the Government Purpose for the Classification?

a. Look to the test of the law, regulation or whatever, if it does not state a purpose, ask
the defender of the law for a conceivable purpose.

b. The challenger will try to expose the actual purpose.

Actual Purpose
Look to the language and history of the law and legislative intent. The
challenger of the law will try to show that the actual purpose of the
law is discriminatory.

Conceivable Purpose
You may challenge saying this is what I think it means. It does not
matter if it is or is not the reason, if it is plausible, can treat it like
that is how it was made.
“Rational Lawmaker Model” – Looking at history, tradition & culture.

Unconstitutional Purpose
Harming a politically unpopular group is unconstitutional (hippies, gays,
mentally retarded). If the classification was created for reasons of
personal animus, the purpose is per se unconstitutional.
If yes  end of story. Romer, Cleburne, Moreno

4) What Level of Review? (Means/Ends Nexus)

A tiered review system (classification & purpose).

Rational Basis Review

The classification must bear a rational relationship to a legitimate
government purpose.
 This is low deferential review (can have bite).

RB w/Bite
If the law targets politically powerless, unpopular group, it
can be asserted that it is an illegitimate purpose.

Intermediate Review
Substantial relationship to an important government purpose.
 This is low deferential review (can have bite).

Strict Scrutiny Review

Classification must be narrowly tailored to a compelling government
 Triggered by:
• Suspect Group  A discrete and insular minority
• Fundamental Rights
 Examples:
• Classifications which burden fundamental rights.
• Classifications that involve a suspect class (historically
powerless group).
• Racial classifications – always.


C. Race-Conscious Affirmative Action
1) Generally
a. Involves laws that facially benefit a person on the basis of race (racial

b. Strict scrutiny b/c racially based (always).


Used to remedy the effects of past discrimination
• If the government actor is merely trying to get a balanced work
force, to get racial diversity in a university, to make African
Americans more economically successful, you should immediately
be able to say the government interest is not compelling.
• If the government is trying to redress past discrimination,
there must be clear evidence that this discrimination in fact

Pro Aff. Action Con Aff. Action

(J. Brennan & J. Marshall) (J. Scalia & J. Thomas)
Remedy of Past Discrimination A Race is being Disadvantaged
Prevention of Present Stigmatizing (Thomas)
Level the Playing Field Color Blind Constitution
White Majority Burdens Who is a Racial Minority?
Promotes Race Consciousness
Innocent Victims

• Quotas
Almost always struck down. It is a racially-based number of
admissions slots, dollar amounts or other “goodies” set aside
for minorities.
• Selective/Preferential Admissions (Bakke)
Any scheme which gives preferential treatment to a racial
group for admission to a public univ. must get SS. It’s
essentially a quota.
1. Selective for socioeconomic reasons ok – even if turns out
a large % are black b/c that wasn’t the intent.
• Minority Set Asides (Aderand)
Some % of publicly funded contracts are reserved for
minority owned businesses. SS and generally struck down.

LAF for Affirmative Action

Benign classifications promoting Affirmative Action will be upheld only if they:

1) Are narrowly tailored to achieve a

2) compelling government interest.

a. It must be that race is the ONLY way to achieve the compelling government

LAF for Determining if the Government Interest Supporting Affirmative Action

Satisfies the Claim that it is Remedying Past Discrimination

1) Discrimination must be identified.

a. Generalized discrimination is insufficient.

2) Must have a strong basis in evidence that remedial action is necessary.

City of Richmond v. J.A. Croson Co. (1989)

Aff. action measure here is that a certain % of government contracts must be given to
minorities. To support the claim that a compelling government interest existed, they said
they were looking to remedy the past effects of discrimination in Richmond’s construction
industry – citing various statistics. Court rejects this evidence stating that the City had
not demonstrated specific discrimination and the law was not narrowly tailored.

NOTE: Many argue Croson sounded the death knell for affirmative action.

Adarand Constructors, Inc. v. Pena (1995)

Fed law granted financial incentives to government contractors if the subs they employed
were MBEs. Adarand’s was the low bidder but b/c of the incentive offered the K went to
the MBE. The Court declared the law unconstitutional, b/c the program was not narrowly
tailored (MBE determined primarily by race).

More Case Example(s) in Equal Protection

NYC Transit Auth. v. Beazer (1979)

Classification: Methadone Users, Purpose: Safety, Review: RB
MTA applied its no narcotics rule to prohibits employment of methadone users citing reasons of
safety and efficiency. Court held they were not a suspect class and underinclusiveness (no
alcoholics) is not a bar. Prohibiting methadone users was rationally related to safety and

City of Cleburne v. Cleburne Living Center (1985)

Classification: Mentally Retarded, Purpose: Safety (claimed), Not in my neighborhood
(conceivable), Review: RB w/bite (due to historical and current prej. against group)

Court invalidated city requirement that homes for the mentally retarded get a special permit
(but not for frat houses) was not rationally related to the government purpose of safety and
property values.

Railway Express Agency v. NY (1949)

Classification: Vehicle Owners v. Non-Vehicle Owners, Purpose: Traffic Safety, Review: RB
Bottom Line  Rational and legitimate so OK.
NY traffic regulation prohibited any advertising except on vehicles engaged in the regular
course of business. Just b/c a statute is underinclusive does not mean it’s invalid.

Williamson v. Lee Optical (1955)

Law said if you’re going to get glasses, must first get a RX from a medical doctor.
Classification: Optometrist v. Opticians, Purpose: Protection of Eyes, Review: RB
Bottom Line  Legitimate connection exists b/n means and ends so rational.

US Dept. of Agriculture v. Mareno (1971)

Classification: Hippies
Law said that a household consisting of unrelated persons could not receive food stamps.
Although the actual stated purpose was to raise level of nutrition in low income households, the
unstated purpose was likely to “get the hippies” and to keep them from living together. An
intent to harm a politically unpopular group is not a legitimate state interest.

Cleburne, Mareno, Romer

These were a little different b/c the government was targeting politically powerless groups.
Court attacks the purpose. Because the purpose is infected, there is no need to go further.

Minnesota v. Clover Leaf Creamery (1981)

Classification: Seller of milk in plastic non-returnable containers.
A Minn. statute banned the sale of milk in plastic non-returnable containers but permitted
its sale in paperboard containers. Justifications in support of the bill included
environmental and economic concerns. Court said this was RB Review and upheld the law.
Court held that it is irrelevant whether the statute would in fact achieve any of its goals –
focus is whether the legislature could rationally have decided that it would meet these

Strauder v. West Virginia

A state may not burden a fundamental right (voting) or burden a suspect class (blacks).

Korematsu v. US
Court upheld the internment of Japanese Americans during WWII. A rare case of a compelling
reason (preventing sabotage and espionage during war) but dissent argued it was not narrowly

Summary LAF for E/P
1. Government Action?
2. 8)
9) a. Suspect Class (Race always is)
10)b. Facially neutral w/disproportionate impact?
11) i. Need invidious purpose.
3. Government
13) Purpose?
14)a. Actual
15)b. Conceivable
c. Unconstitutional
4. Level of Review
18)a. Rational Basis
19) i. Legitimate purpose, rationally related
21) ii. RB w/Bite
22) 1. Politically unpopular group, product of animus
23)b. Strict Scrutiny (Suspect Class & Fundamental Rights)
24) i. Compelling interest, narrowly tailored
5. Beneficial to Minority/Affirmative Action?
a. Always SS.

D. Gender Classifications


1) Classifications that Burden WOMEN on the Basis of Gender


To survive equal protection review, a gender-based classification that burdens women must

1) an “exceedingly persuasive justification” for the classification and

2) must serve an important government interest that is

3) substantially related to the accomplishment of that interest.

If the law is facially neutral, the challenger must show
an invidious purpose to discriminate on the basis of gender.
Disparate impacts on women are alone insufficient to trigger intermediate scrutiny.
2) “Benign” Classifications that BURDEN MEN and BENEFIT WOMEN
a. ALL gender classifications get intermediate scrutiny, but those designed to
remedy past discrimination and to compensate women for past difficulties will
usually pass review.

b. There must be a real difference b/n sexes.

Michael M. v. Sonoma Co. Super. Ct. (1981)

Court upheld the statutory rape law that punished males over the age of for having
consensual sexual intercourse with girls under 16. The statute, however, did not punish
women for the same scenario.
RULE  Classifications based on “real differences” between the sexes are not invidious
discrimination and are subject to RB REVIEW.

United States v. Virginia (1996)

Court found the Virginia law allowing only men to attend VMI was unconstitutional, even
where VA had set up a “separate but equal” all women’s school. HELD  Facilities were not
equal and the prohibition on women was based on “archaic stereotypes” that women couldn’t
handle the adversative method. Court found that the purpose set forth by VA to preserve
educational diversity was not the actual purpose.

1) Generally
a. NOT a suspect class.

Status v. Conduct Target
i. Status:
1. It appears that if the law classifies b/c of homosexuality
as a status, it will get RB w/bite review.

ii. Conduct:
1. If, however, the law classifies based on homosexual
conduct, it will get deferential RB review.

Romer v. Evans (1996)

If the government purpose is to harm a particular group, the Court will
say this violates the 14th Amendment.
Court invalidated a CO. law that repealed and forbade all laws that gave
homosexuals the ability to claim minority status or discrimination claims.
Court refused to raise the level of scrutiny to intermediate, but used RB
w/Bite to invalidate the law b/c it targeted a politically unpopular group.

1) Generally
a. Even though aliens are not citizens, they are =nonetheless protected by
the 14th Amendment.

b. Why? Because the EPC prohibits denial by states of “any person” the
equal protection of the laws.

1. Lawful (documented)
a. Political Asylum
b. Marriage
c. Visa
d. “Green Card”
2. Unlawful (non-documented)

2) Level of Review
a. Federal Laws
Rational Basis Review  Due to textual power.

b. State Laws
If a state law is involved, must determine if alien is burdened with
respect to:
a. Entitlements (social/economic)
 Strict Scrutiny

b. Functions (Ex: Employment)

 Rational Basis

The closer to a “formulation, execution or review

of broad public policy,” the classification will be
upheld. (Ex: state police, prosecutor)

The further away, the classification is likely

merely discriminatory. (Ex: sanitation worker,

Government has the right to define their
political community. May not be able to define
at lower level – but as you move up the ladder –
yes. Functions that go to the heart of
representative government fall here.

Rationale  It could be risky for a non-citizen
to perform an important political function.

Sugarman v. Dougall (1973)

State law which created a blanket ban on aliens holding civil service jobs.
Court struck down the statute b/c it was too broad (i.e., no distinguishing
b/n janitors and the office worker). Ties to the community wouldn’t
matter if you were a janitor – but they would if you were a judge.

Examples of Application of the Sugarman Exception

Civil Service
o Exception does not apply to ordinary civil service
o SS applies.
o Does not apply to laws prohibiting aliens from practicing
o SS applies.
Notaries Public
o Does not apply.
o SS applies.
State Troopers
o Applies to laws barring aliens from become state troopers
b/c they are involved in executing broad public policy and
have a great deal of discretion.
o RB review applies.
Deputy Probation Officers
o Applies.
Public School Teachers
o Applies.
o Majority held that public teachers served a function that
was bound up with the operation of the state as a
governmental entity.


1) The classification must be fairly specific as to what positions or functions are denied to
aliens, and
2) The position must have a good amount of discretionary power for executing, formulating or
reviewing broad public policy, and
3) The position must go to the very heart of representative government.

Federal law requires airport screeners to be US citizens. 20% of nations 28K screeners are not citizens. If you
represent an alien screener, who has worked at LAX for more than 2 years (and he must wait for 2 years before he
can become a citizen). He comes to you for legal advice – what do you tell him?
1) Federal law so a higher level of review.
2) Also, using the Sugarman exception, you could argue that citizens are likely to be more loyal than aliens. You
wouldn’t want to have an alien screening airline baggage.
3) Bottom line, he doesn’t stand much of a chance.

3) Illegal Aliens
a. Generally, laws that discriminate against illegal (undocumented) aliens will only
get RB Review.

b. The justification is that illegal aliens are not a suspect class b/c they
voluntarily chose to enter the country illegally.

c. Children of Illegal Aliens

In Plyler v. Doe, the Court held that a complete denial of educational
benefits to children of illegal aliens was invalid on equal protection and
fundamental rights grounds.

Children of illegal aliens are a suspect class, and laws burdening them
will get intermediate scrutiny, or at the very least rational basis


1) If a FEDERAL LAW denies an immigrant employment or benefits  RB Review.

a. Administrative Agency Regulations may get less deference.

2) If a STATE LAW denies immigrants (legal aliens) government benefits  SS Review.

3) If a STATE LAW denies legal aliens government employment  usually SS Review UNLESS

a. Sugarman Exception
i. Involves the formulation, execution or review of “broad public policy” OR
ii. Involves functions at the very heart of representative government OR
iii. Is a very high level position with a great deal of discretion.

4) If a legal alien is denied private employment and state action is demonstrated  SS Review.

5) If an ILLEGAL ALIEN is denied anything by either state or federal law  RB Review UNLESS

a. Illegal alien’s child – may be a “quasi-suspect class” and t/f get IS or RB w/Bite.

Implied Fundamental Rights

The process by which the courts protect individual liberty by implying Constitutional
protection for certain activities or interests from the textual provisions of the
Constitution that are not specifically enumerated in the document.
(Ex: due process, privileges and immunities)

Originalists hate this process and claim that the courts are imposing their own morality
and views and that if a right is to be protected, the Constitution should be amended.
(Renquist & Scalia)


(Must hook the implied right into something)


a. P&I Clause applies to citizens of US but not state citizens – in other words, only
protects the individual from state interference with his rights of national

b. The most important of these rights of national citizenship are:

i. Right to travel from state to state
ii. The right to vote in national elections

c. The P&I Clause is most relevant where a state treats a newly-arrived resident
less favorably than those who have resided in state for a longer time.

Saenz v. Roe (1999)

If a state gives newly-arrived residents lower welfare payments than ones
who have been residing longer, this is a violation of the “right to travel”
and to be treated like citizens of the state in which they reside protected
by the P&I Clause.
This case revived the P&I Clause which was rendered a virtual nullity after
the Slaughterhouse Cases.
Law required slaughtering must take place only in a certain area. Butchers
alleged their right to pursue a lawful calling was interfered with, and that
the P&I Clause protects state citizens.
HELD  P&I only applies to US citizens. It does not include the right to
pursue a lawful calling.

d. P&I Clause protects only those rights enumerated in the Constitution and owing
their existence to the federal government. (Ex: priv. & imm. of US citizenship)

The Court gives SS Review to state laws that interfere with rights of
national citizenship.

a. Federal Rights
Protects from infringement only by the federal government.

b. State Rights
But, through the SELECTIVE INCORPORATION DOCTRINE the protections are
extended to limit states from infringing the rights as well.
• BOR becomes subsumed w/in the 14th A via DPC.
• Jot for Jot – whatever right has been determined to apply to
the states, the scope of that guarantee is interpreted the same
way for the states as the federal government.
(Ex: The 4th A right to be free from an unreasonable search and
seizure is interpreted the same way whether it involved the
State Police or the FBI).

c. The only rights that have not been incorporated are:

i. 2nd and 3rd Amendments and the 5th A right to a Grand Jury.

Barron v. Mayor & City Council of Baltimore (1833)

The Supreme Court decided fairly early that the guarantees of the BOR were not
directly binding upon state governments. The Court reasoned that if the framers
had intended them to be binding, they would have expressed that intention in plain
Today, most rights are applicable to the states via the DPC. “Judicial Magic”


a. This is perhaps the most intriguing of all – and the most widely used provision for
implying fundamental rights

b. The words “due process” appear twice in the Constitution (5th & 14th As)
• States  Bound by 14th A DPC
• Federal Government  Bound by 5th A DPC
• But, regardless, whatever is unconstitutional under one will be so
under another.

c. While it sounds like a procedural protection – it is really substantive – reasonbeing

is the words of law that follow due process.

d. State action requirement applies.

e. There is a procedural AND substantive component to the DPC.

f. The DPC is home for most of the BOR. They are as equally protected from state
action as they are from the federal government.

g. Apart from rights contained w/in BOR, DPC also has an independent power of its
own – Independent Potency – with respect to rights not contained within BOR.
(Ex: Personal Autonomy)

Criteria Used to Establish a Right by Independent Potency

1) Right must be a fundamental principle of liberty and justice which inheres in
the very idea of free government. (Twining)

2) Right must be at the very essence of a scheme of ordered liberty. (Palko)

3) The right must lie at the base of all our civil and political institutions.

Really very “baseless” criteria for implying fundamental rights.

We could fit in anything we want in these categories.

These are what we use, however, to imply fundamental rights.

Step back, and you see this is borderline judicial tyranny b/c it has the potential for judges to apply
their subj. values and traditions and raise them to the level of a constitutional right under the aegis
of the DPC.

• Generally, this limits the substantive power of the states to regulate
certain areas of human life.
• The substantive component of the DPC is deriven mainly from the
interpretation of the word “liberty.”
• A critical distinction at the outset if the right is fundamental. If no  RB
Review. If yes  SS Review.
NOTE: The majority of the difficulty in analyzing Substantive Due
Process Claims is whether the right is fundamental.


Any time a fact pattern suggests that a state OR federal government is taking away some thing
or value that could be considered “life, liberty or property” – you must ask:

“Has the government violated the individual’s substantive interest

in life, liberty or property by carrying out this taking?”



1) Generally
a. Involves government’s efforts to affect our private economic
rights (Ex: property, owning a business, right to work, contracts,
price fixing, etc.)

b. How does this happen?

i. Sometimes government will make a law to protect
someone (Ex: max. hour/day law) and what is being
affected/interfered with is the economic interest of the
employee AND the employer.

2) Areas Government May be Interfering With

a. Life
b. Liberty
i. This is generally where economic due process falls.

Meaning of Liberty
Freedom from restraint, right of a citizen to enjoy all her
faculties, free to use them in lawful ways, to live and work
as she chooses, to pursue any livelihood, to enter all
necessary and proper contracts, etc.

3) The History & Shift to Current Trend

a. Essentially no protection from legislation burdening economic

interests today b/c of the demise of the Lochner era.

b. Such regulations, today, get only deferential RB Review – if that.

c. A presumption of constitutionality and extreme deference are

given to legislative findings.

d. To be in conformity with substantive due process, an economic

statute need only:
i. Pursue a legitimate state objective;
(Note: Virtually any health, safety or general welfare
comes w/in the state’s police power and is t/f
ii. Have a minimal rational relation b/n the means and the

e. Areas of economic interests include:

o Protection of personal and real property.
o Freedom of contract.
o Freedom to pursue a particular trade.
o Minimum wage restrictions.
o Rate and price setting laws.
o Social welfare legislation.

Lochner v. NY (1908)
The Court invalidated a min. wage law aimed at bakers by holding that it
violated the “freedom of contract” expressed in Art. I,
Sec. 10 and the DPC.

During the Lochner era, the Court frequently invalidated such laws, reflecting
the tension between the state’s police power, Social Darwinism and laissez
faire economics.

The Death of Lochner – Modern Substantive DP

In a series of cases beginning with Nebbia v. NY (1934), the

Court began chipping away at Lochner so that today Lochner is a
dirty word in substantive due process.
NOTE: Riccio doesn’t really think it’s a dirty word and says
to Cf. to Roe. The dirty word, is that some think the Court
went over the edge with their power.

Nebbia v. NY (1934)
The beginning of the end fro economic substantive DP. Court upheld a NY law
setting prices for milk sold, saying that there was a public need to protect

dairy farmers and deferring to the legislature. One probable reason for the
Court’s shift was the effect of the Depression on the economy.

West Coast Hotel v. Parrish (1937)

The Court explicitly overruled one of the major Lochner-era precedents. The
Court upheld a state min. wage law for women, and thereby explicitly overruled
the Adkins case. The Court conceded that the min. wage law interfered with
the freedom of contract, but concluded that a readjustment of economic
bargaining power in order to enable workers to obtain a living wage was a
legitimate limitation on that freedom of contract.

United States v. Carolene Products (1938)

The Court made it clear that a presumption of constitutionality would be
applied in the case of economic regulation subjected to due process attack.
Here, the Court sustained against a due process attack a federal prohibition on
the interstate shipment of “filled” milk. HELD  Legislative deference is

Williamson v. Lee Optical (1955)

Court upheld a law stating that opticians may not fit eyeglass lenses into
frames w/o a prescription from a doctor/ophthalmologist. Court found the
statute to be a rational health measure..
Level of review is almost complete deference to the legislature!!!
NOTE: This is a quantum leap from Lochner.

Ferguson v. Skrupa (1963)

Court upheld a Kansas law prohibiting anyone but attorneys from practicing
debt adjustment. Court said it was no longer the business of the Court to give
due process protection to economic laws.



1) Generally
a. There is a liberty component to the DPC which also permits
fundamental rights to be implied. (Allegheyer)

b. Applies to fundamental rights (may be implied):

civil rights, freedoms, personal liberties, personal
autonomy. (Ex: marriage rights, child-rearing, education,
procreation, defining the family unit, etc.)

c. NOTE: Even if right is not fundamental – you still must apply RB

Review. You may decide that the state is being so irrational that
it is a violation of substantive due process anyway.

Strict Scrutiny Review

o Guideposts
o History/Tradition

Anchor Cases
Allegheyer v. LA (1890)
Court first articulated the idea of a liberty component to the DPC, opening
the door to implied fundamental rights.
Meyer v. Nebraska (1923)
Court invalidates a law prohibiting any language but English from being
taught in public schools.
Pierce v. Soc. of Sisters (1925)
Court struck down a law requiring all kids to attend only public school.

2) What Non-Economic Substantive Due Process is Predicated On

a. Penumbras, emanations & peripheries of the BOR

b. 9th Amendment

c. DPC, 14th Amendment (when not dealing with a classification)

iii. This is the most favored method to use.
iv. Now given a substantive meaning and use guideposts to
v. This is fragile and borderline legitimate.

d. EPC (when dealing with a classification).

i. See expansion infra.


a. Articulated in:
Griswold v. Connecticut (1965) [Birth Control Case]
Law prohibited any person to use any drug, instrument, etc. for the
purpose of preventing conception. Even married persons were
prohibited from using contraceptives. Justice Douglas adopted the
“penumbras” idea that there are privacy rights that include what a
married couple do in their bedroom and government doesn’t have
the right to interfere. (Same principle later extended to unmarried
persons in Eisenstadt v. Baird)
o Court uses Guideposts.
NOTE: The most important aspect of this opinion is Justice
Harlan’s concurrence, where he called the right of privacy in
the home “a fundamental aspect of liberty” but noted that it
was not absolute.

b. Extended In:
Eisenstadt v. Baird (1972)
Court extended to unmarried couples the right to obtain and use
contraceptives, and in the process of expanding the scope of
“If the right of privacy means anything, it is the right of the
individual, married or single, to be free from unwarranted
governmental intrusion into matters to fundamentally affecting a
person as the decision whether to bear or beget a child.”

Carey v. Population Svcs. Int’l (1977)

Court struck down a NY law prohibiting anyone but pharmacists
from distributing contraceptives and saying that the right of
privacy implicated in the decision was not limited to use of
contraceptives but also extended to access to them.


The right of abortion as it stood under Roe v. Wade has been largely
cut back by Planned Parenthood v. Casey.

a. Two Important Issues in Dealing with Abortion:

i. Liberty interest in having an abortion.
ii. State’s interest in valuing human life – this is where most
of the moral and legal issues come into play.

b. Crucial issue is defining the word person.

Roe v. Wade (1973)
German S. Court’s interpretation of the This case recognized that the right of privacy limits a legislature’s
word “everyone.” Period of freedom to proscribe or regulate abortion. HELD 
Individuation – life – is after the 14th o A woman’s right to privacy is fundamental under the 14th
day. Amendment.
o Defined “person” as a post-viability fetus.
If this were the case in America for o Viability is the point at which the state’s interest in protecting
Roe, a woman would only be able to
life becomes compelling enough to restrict a woman’s right to
obtain an abortion up until the 14th day
– rendering it virtually impossible.

o Trimester Framework:
UNDUE BURDEN TEST 1) Prior to approx. the end of the first trimester, any law
State may not regulate a restricting abortion will receive SS Review.
woman’s choice to receive 2) From the end of first trimester to the point of
an abortion if it places on viability, the state may regulate abortion procedures in
her an undue burden. An the interest of the mother in ways that are rationally
undue burden occurs when related to the mother’s health.
the regulation has the 3) After viability, the state may regulate and even
purpose or effect of proscribe abortion in promoting the compelling interest
placing a substantial of human life EXCEPT where abortion is necessary to
obstacle in the path of a preserve the life of the mother.
woman seeking an abortion
of a nonviable fetus. 52
Planned Parenthood v. Casey (1992)
J. O’Connor articulated a new level of review applicable only to the
abortion arena – explicitly rejecting the Trimester Framework and
adopting the UNDUE BURDEN TEST.
o While government may not flatly prohibit abortion pre-viability
they may regulate it to promote the state’s profound interest
in life.
(Ex: woman must give her informed consent by meeting with a
doctor who tries to talk her into getting pregnant, 24 hour
waiting period)
o Informed Consent – Upheld.
o Spousal Notification – Struck down.
o Parental Consent – Upheld (some states – including NJ –
prohibit this)
o Partial Birth – Government may not prohibit this on the grounds
that it is grotesque b/c in some instances it protects the
health of the mother.

Partial Birth Abortion

Stenberg v. Carhart (2000)

State statute indicated that no partial birth abortion shall be performed
unless it was necessary to save the life of the mother. Partial birth
abortion is defined as delivering vaginally a living unborn child and killing it
before delivery is complete. State claimed their interests were potential
life, cruelty to partially unborn children and preserving the integrity of the
medical profession. Court responded that they cannot see they interest
related differences b/n partial birth and regular abortion b/c they are all
equally cruel and grotesque.
o Statute placed a flat ban and should have had a maternal health
exception – this may have saved it.
o However, another problem was that it was also overbroad b/c it could
be read to preclude also the D&E procedure and not just the partial
birth. This made it an undue burden.
o Places an undue burden on the mother by compelling her to have the

a. Generally
i. Whenever the state interferes with a person’s decision
about how to live his family life and raise his children, you
should be on the lookout to determine if a fundamental
right is being interfered with.

ii. Look to tradition and guideposts.

b. The Debate over Defining Tradition

“Specific Tradition”
o There must be something “specific” to point to in order to
protect something as a fundamental right.
o Traditions should be used by judges to dictate and not
discern society’s views.

“General Tradition”
o States we shouldn’t saddle interpretation with limiting
the interpretation of tradition.
o Says that judges should discern and not dictate society’s
views. It is a constitution we are expounding.


• Relatives have a fundamental right to live together.
• Fundamental right to define your family unit b/c deeply rooted
in our nation’s history and tradition.

Moore v. City of E. Cleveland (1977)

A city may not enact a zoning ordinance that prevents first cousins
from living together. Court struck down a zoning ordinance which
allowed only members of a single “family” to live together. The
ordinance defined what they considered to be “family” which was
immediate family only.

The government interests for the law was to prevent overcrowding and
minimize parking congestion and putting an undue financial burden on
the school system. This could be legitimate. If given RB Review, the
ordinance would stand. BUT – if we can find an implied right we can get
SS Review.

Hypos for Defining the Family Unit

How far does the right to define the family unit stretch?
i. What if I want to define my family as myself and my girlfriend in a single
family zone, where family is define by blood, marriage or adoption. City finds
out and sends a letter saying they aren’t a family under their definition and
they have 30 days to leave or get married.
1. Would try to expand the definition of a family unit by arguing tradition.
Emerging tradition to live with girlfriend b/f marriage (Brennan).
Conversely, adversary would argue tradition is not to live together b/f
married (Scalia).
ii. What if it were the same situation but you lived with 5 of your buddies?
1. Same arguments, but probably wouldn’t work.
iii. What about gay and lesbian couples.
1. Same argument – argue for emerging tradition.
iv. What if there was a shrink who brought 3-4 kids into his home at a time as a
method to their treatment.
1. Ordinance required relation by blood, marriage or adoption.
2. Argue same type of relationship as parent/child. Really no different
than traditional nuclear family.
3. Present a week in the life of the family.
4. Show that everything a normal family does was done here. the only
thing that didn’t make them a family according to the ordinance is that
they aren’t related by blood, marriage or family.
a. Riccio lost the case b/f the zoning board.
b. Appealed to NJ S. Ct. Lost there as well.
c. NJ Legislature ended up enacting a group home law after
following the case. Group homes in NJ are exempt from zoning

Exam Tip
If you argue certain persons should be able to
live together, in order to support your
argument look to:
Emerging Tradition
Culture/Past Tradition

• Fundamental right. Law must pass SS Review.

Zablocki v. Redhail (1978)

A state may not forbid anyone from remarrying b/c he is not current
on his child support payment. Purpose was to require non-custodial
father’s to support their children. This is a “Deadbeat Dad Law.” This
is legitimate. If you represent the father, you argue there is a
fundamental right to marry (tradition, virtues of marriage, etc.)
The right to marry is an implied fundamental right. It may not be
significantly interfered with.
• Thus, SS and there is no compelling government interest
that is narrowly tailored.
• This doesn’t mean every condition on the right to marry is
unconstitutional (Ex: can’t marry family members, blood testing,


Meyer & Pierce told us that parents can pretty much raise their
children as they choose. The trickier question with parental rights
is in the context of the divorced parent or the nonmarried
adulterous sperm donor.

Michael H. v. Gerald D. (1989)

Calif. statute says a child born to a married woman living with her husband
is presumed to be a child of the marriage. What this means for Michael H.
– the biological father who cheated with the married mother – is that he
has no parental rights.
• Court rejected that adulterous fathers have an implied fundamental
right based on the tradition of fatherhood and raising a child to have a
relationship with it.
• Instead, court stated that tradition was the family unit.
Note: Had the Court taken a more general status they may have
found a fundamental right. Good example of how you posit the
right/claim you’re looking at. Here, it was married fathers v.
adulterous fathers.


Troxel v. Granville (2000)

A parent has a fundamental right in deciding how will spend time
with the child. Thus, the state may not award visitation rights to a
child’s grandparents over the objection of the child’s fit custodial
Constitutional Rights Involved Here:
• Right of parent to determine who sees the child(ren).
• Right of grandparent(s) to visit grandchild(ren).
• Right of child(ren) to see grandparent(s).


(Non-Sexual) (Ex: Social Clubs)

Roberts v. Jaycees (1984)

• The Court held that the right of association for groups
resembling a family was fundamental and thus laws restricting
this right receive SS Review.

LAF for Determining Whether the Club/Group will be

Treated Like a Family in order to Trigger SS Review

1) The group must be relatively small.

2) There must be a high degree of selectivity in decisions to begin and maintain the

3) The groups must be secluded from others in critical aspects of the relationship.

If a group fails to meet these criteria

they will be treated as an association and given RB Review.

Things like golf clubs are OK. It is when you get to the national level when it becomes violative.

• There seems to be NO fundamental right to engage in adult
consensual sexual activity.

Bowers v. Hardwick (1986) [Homosexual Sodomy]

State statute made it unconstitutional to commit sodomy. The D
was indicted for committing same sex sodomy in the privacy of his
home with a consenting adult. Court said the alleged right was
We are on the outer
“homosexual sodomy.” (Cf. Michael H – here court is discerning the
edges of judicial review.
Very scary our rights right and not dictating it. Were they dictating they may have said
come down to this. it was a right. Good example of important how you posit something).
There is no implied fundamental right to engage in homosexual

This was not the only way to define the right. VERY
IMPORTANT to remember that HOW we define the right
affects whether or not the Court will find it to be a
fundamental right.

In Bowers, Court defines right as “consensual homosexual sodomy.”

• Court said not a fundamental right b/c (guideposts used):
a) It isn’t tradition.
b) It is not implicit in the concept of ordered liberty.
c) It is not deeply rooted in our nation’s liberty.

The Court in Bowers could have defined the right as:

• Sexual autonomy
• Freedom of association/Right to choose form and nature of
intimate personal bonds.
• Right to engage in non-procreative sexual relations

Griswold was OK even though it was non-procreative sex, but
not OK in Bowers. Demonstrates the importance of
characterizing the right.

Romer v. Evans (1996)
Court invalidated a CO. law that repealed and forbade all laws that
gave homosexuals the ability to claim minority status or
discrimination claims.
• Court refused to raise the level of scrutiny to intermediate, but
used RB w/Bite to invalidate the law b/c it targeted a politically
unpopular group.
NOTE: Problem here, is that law was targeted at gays.
However, the majority doesn’t even cite Bowers which is

Exam Tip
If you see a sexual orientation question,
you must harmonize both Romer & Bowers.



A. Right to Choose Certain Treatment

There is a fundamental right to choose one’s medical
treatment. (Roe v. Wade)

A client comes to you and said they want a drug that is in Minnesota but
has not yet been FDA approved. They are terminally ill and only have a few
weeks to live. They need your help.
What do you do?
1) Seek a declaratory judgment by going to court and seeking a
mandatory judgment compelling the government to permit my client
to use the drug.
What is the basis for your claim?
1) Client’s rights under the 14th A DPC liberty component of the US
Constitution are being violated.
2) Use guideposts.
1. i.e., right to control medical treatment (Roe)
What do you want?
1) For client to be able to use experimental medication to save her life.
Is there a compelling government interest in precluding client from
obtaining the drug?
2) Government would argue it is the safety of the people b/c the drug is
not yet approved.

3) I would reply that my client’s interest to choose her own medical
treatment outweighs that interest, especially since she only has two
weeks to live and this is her last chance.
1. There is not a compelling reason for denying my client the right
to take this drug.

B. Right to Refuse General Medical Treatment

There is a fundamental right to refuse medical treatment.
BUT health related compelling interests may require a
person to submit to treatment (Ex: vaccines to prevent
epidemics, quarantines).

C. Right to Refuse Life Saving Medical Treatment

(From Cruzan)

If Competent 
• This is a fundamental right.

If Not Competent 
• It is in the state’s interest in preserving human
life that a surrogate of an incompetent person
must demonstrate by clear and convincing
evidence that the person would want the life
support discontinued.

D. The Right to Receive Physician Assisted Suicide

There is no fundamental right to commit solo or assisted
suicide due to tradition and guideposts, and laws
prohibiting it get RB Review. (Washington v. Glucksburg)

The way to analyze if a potential fundamental right is being burdened:

What is the interest involved?

What provision of the Constitution can you use Itextual)?
If you determine the right is fundamental b/c it falls w/in the guideposts (history,
tradition) then:
Apply SS Analysis and
Marry the facts to the law.

They way you frame the asserted right being burdened is important.
Frame it in a specific way tailored to your argument.
(Ex: the right to engage in homosexual sodomy v. the right to privacy;
right to association; right to parent/child relationship)

a. Whether express or implied – a fundamental right raises the level of


b. Only implicated where government imposes a classification.

c. Imposes a general restraint on governmental use of classifications.

d. State action requirement applies.

e. Direct text applies only to state governments – but the federal

government is also bound by the indirect means of the 5th A DPC.

f. The Clause guarantees that people who are similarly situated will be
treated similarly.

c. Similarities & differences b/n Using DPC and EPC for Implying
Fundamental Rights
The differences aren’t great.

• They are both the same in that you can house EPC in the BOR through
EXAM Selective Incorporation – same as with the DPC.
NOTE • Both have independent potency to stand on their own as predicates for
implying fundamental rights.
Plead your • The way in which the Court will apply is the same in both.
case • The distinction b/n economic and non-economic is the same whether EPC
under or DPC.
both so • If a fundamental right is found, the Court raises the bar under both to
that your SS Review.
bases are Differences
covered. • The law that burdens the right does so by creating a classification or
drawing a line under the EPC.
• So, when you see legislative line drawing by segregating whose
fundamental rights are burdened and whose are not – this is when you
have the most appropriate setting for housing EPC with implied rights.

Triggering Strict Scrutiny
1) Law targets a suspect class OR
2) A fundamental right (express or implied) is burdened.
• If the law creates a classification and burdens a fundamental right, the
law will get SS Review – even if the class is NOT suspect (Ex: Wealth).
NOTE: If the right is implied – FIRST figure out if the right is there!!!

If the right is NOT fundamental, it gets only RB Review.

Harper v. Va. Bd. of Elections (1966)

Poll tax law. Could be said to burden a suspect group – the poor – b/c they historically have
no political power. Thus, line drawn b/n poor & non-poor (housed under EPC). HOWEVER,
could also say merely burdens a fundamental right – to vote (housed under DPC).
Technically, you could argue Harper either way, but where you burden depends on where you
house. Good example of arguing for both to cover your bases.

NOTE: Where you burden depends on whether you house in

EPC  Burdens a Class
DPC  Burdens a Fundamental Right

LAF for Determining the Validity/Constitutionality of a Law Denying a Right

1) Is there a government action?

a. If yes…
2) Has a classification been created?
a. If yes…
3) Does the classification (a) burden a suspect class OR (b) impinge on a fundamental
a. Fundamental Right  Look to BOR or Guideposts (what’s in your heart?).
4) Argue for SS Review.
a. Compelling Purpose
b. Narrowly Tailored


Case Example of Working through LAF

Govt Action  Yes. The statute requires the sterilization of criminals who have
committed 3 felonies. (Skinner was convicted of stealing chickens and robbery
w/firearms 2 times – so he falls under the Act).

Classification  Two different types of criminals (Embezzlement for the same
amount of money was ok – traditional stealing was not). Thus, we’re in the EPC
Suspect Class or Fundamental Right  Try to fit under both – Belt & Suspender
• BOR – Cruel & Unusual Punishment (8th A) via Incorporation
Doctrine [Court didn’t go this way but they could have].
• Guideposts – Right to procreation is fundamental. The love,
etc. deriven from child-rearing shouldn’t be denied. Denying
blue collar but not white collar criminal.
In Skinner, Court agreed it was a fundamental right and triggered SS Review, and
HELD that the law was not narrowly tailored to serve a compelling government


1) Generally
a. Is not an express fundamental right – is mostly implied. But it is
a fundamental right (Reynolds v. Sims).

b. There are only two places in the Constitution that confer on

people an absolute right to vote:
i. Art. I, Sec. 2, Cl. 1
1. HOR shall be composed of members chosen every
second year by people of several states).
ii. 17th Amendment
1. US Senate shall be composed of two senators
elected by the people of the state for six years.

c. Nonetheless, states usually gives this right even though it is not


d. Qualifications for voters are NOT set forth in the Constitution.

i. 17th Amendment – States will determine what
qualifications will be.
ii. Other Constitutional Amendments – Curtail what
conditions may be imposed (Ex: poll tax, sex, race, age,
“Taboo Qualifications”

e. If the right to vote has been given by either the Constitution

OR a local law, then the Court has the POWER to look at how
that vote is being distributed (unfairly or fairly).

NOTE: This is when the EPC kicks in – when the right is given!!!

2) Ways to Infringe on Voting Rights
a. Absolute Denial

Poll Taxes in State Elections

Harper v. Va. Bd. of Elections (1966) [Poll Tax]
Vote was conditioned on the ability to pay a $1.50 poll tax.
Court held unconstitutional.
Government Action  Yes.
Classification Created  Arguably, yes, based on wealth.
HELD  A state violates EP when it makes the affluence
of the voter or payment of any fee an electoral standard.

Kramer v. Union Free Sch. Dist. (1969) [Property Requ.]

Placed property requirements on the ability to vote in
school district elections. Purpose of this law was to allow
persons to vote who had a stake in the school district.
Gov’t Action  Yes. Classification Created  Yes.
Suspect Group  Probably not. Fundamental Right 
Maybe. BOR  No. Guideposts  Yes.
HELD  Once a state grants the right to vote to a person
of requisite age and citizenship, they cannot deny it on
other grounds unless the condition is narrowly tailored to
further a compelling government interest.

b. Voter Dilution
• A more subtle way to impair a person’s fundamental right
than absolutely denying it as in Harper & Kramer.
• Sometimes you can have voter dilution which is where
district lines are drawn which give more power to one
particular group. What this means is that each person’s vote
is not worth the same.
• Many of the voting rights cases are brought under § 2 of the
1965 Voting Rights Act b/c the invidiousness requirement
doesn’t exist here.
• Most of the voter dilution cases occur in two different

1. Reapportionment Cases
a. After the census (every 10 years), population is
reevaluated and the number of representatives
are affected by this.

b. Faster growing states get more and vice versa.

c. Standards for Population Deviation
Congressional Districts
1. “As nearly equal in population as
2. This is b/c congressional districting is
predicated on Art. I, Sec. 2.
3. This is a rigid standard that doesn’t
permit much deviation.
State Districts
1. “Substantial equality of population.”
2. There is more deviation allowed here
b/c of the interest in the normal
functioning of state and local
3. General rule is that 10% is OK.
10% Rule.
• After that, it becomes
unconstitutional and you have an
EP problem.
• Don’t need any justification for
up to 10%.

Population is 10 million, 10 districts.
The ideal district size would be 1
million. If the largest is 1.1 million
(10% variance) and the smallest is .9
million, the percentage deviation is
20% and this is not permitted.

Reynolds v. Sims (1964)

States sought to dilute blacks from having a meaningful
voice by not reapportioning the legislature for 60 years.
The apportionment was being done on the basis of the
population as it existed in 1900 and not 1960. Thus, the
weight of the African American vote in County A was
less than it was in County B. As a result, there were
very few blacks in the Alabama legislature. Ps argued
this was a denial of their fundamental right to vote b/c
the vote weight is being denied.
HELD  One Person/One Vote Decision.
Each person’s vote is worth the same at the other.

2. Redistricting (Racial and Political Gerrymandering)

a. When a state draws its district boundaries so as to
create homogeneous districts and thus increase the
proportional representation of one group in elected
office. Could be done racially or politically.

b. When Beneficial to Blacks
i. This is the tricky one.
ii. It came about principally with the 1990
Census. As a result of the 1990 Census,
states who had few blacks representing
decided to create a “majority/minority
This is a form of affirmative action t/f it
gets SS Review!!!
Shore v. Marino

City of Mobile v. Bolden (1980)

At large voting system with three voting districts. Total
population was 35% black and 65% white. In the at large
system, if you believe in racial bloc voting, white vote for
whites and win every time. So, the argument is that the
at large system was a denial of EP.
HELD  Court disagreed.
• No dilution b/c every black person’s vote
• There was also no denial of a right to
• This was not a racial gerrymander.
• In order to prove their case here, P
would have needed to show:
• An invidious purpose existed (b/c the
system was facially neutral).

LAF for Determining whether there has been a

Racial Gerrymander that Benefits OR Burdens Blacks
(Miller v. Johnson)

1) P must show that race was the predominant factor motivating the legislature’s decision
to place a significant number of voters w/in or w/o of a particular district.
a. This may be shown through circumstantial evidence of district’s shape,
demographics, or more direct evidence pointing to legislative purpose.

2) To make the showing, P must prove the legislature subordinated traditional race-neutral
principles (shape, contiguity, shared interests) to race dominated considerations.

NOTE: It is hard to prove a racial gerrymander, but if you can it gets SS.

You can be aware of race but NOT motivated by it
Doesn’t matter if the racial gerrymander benefits or burdens.
What is bad about it is that it is racial.


1) Generally
a. There is nothing expressly within the Constitution conferring on
persons the right to a free public education. State constitutions
usually fill the gap here.

b. Thus, the state may allow or even foster inequalities in the

distribution of that public school education w/o having to pass
SS Review.

c. Not really a fundamental right – but a complete deprivation

might be. FN60.

San Antonio Indep. Sch. Dist. v. Rodriguez (1973)

School education was financed by property taxes. This was challenged on
the ground that it produced great interdistrict disparities in per-pupil
expenditures due to the difference in property values.
Gov’t Action  Yes. Classification Created  Yes (some people get a
free public educ. that is worth more value of $$). Suspect Class  Ps
argue yes b/c based on wealth. Court says wealth is NOT a suspect class
(could still make an argument for it). Fundamental right  Court said no
b/c there is no fundamental right to equal funding.
o There is no fundamental right to equal funding.
o Wealth is not a suspect class.
o Thus, the law got RB Review and was valid.

NOTE: Court sidestepped whether there was a

fundamental right to education, BUT…
o FN 60 of J. Powell’s opinion intimated that if a
classification based on wealth had the effect of
completely denying an education to poor people, the
law would likely be invalid.

Plyler v. Doe (1982)

Children of illegal aliens were being denied the right to a free public
NOTE education. Law wants illegal aliens to pay for education, but others don’t
EPC extended to have to. Not saying that they can’t go school – but that they must pay to
do so.
illegal aliens HELD 
here. This o Court rejected that they were a suspect class b/c not totally
means Al involuntary.
Qaedas could o Court gave INTERMEDIATE SCRUTINY saying that the denial
must be justified by a showing that it furthers a substantial state
o Illegal aliens contribute to the local economy and the cost to us
may be greater if we don’t educate their children.
o Policy reasons.

Procedural Due Process

1) Generally
a. Embodied in the 14th Amendment.

b. Don’t have to imply something that isn’t there – this is explicit.

i. “No state shall deny a person of life, liberty or property without due
process of law.”

c. This is the requirement that the state act with adequate or fair procedures
when it deprives a person of life, liberty or process.

2) Triggering Mechanism
a. Procedural due process does not get triggered unless a person’s life, liberty or
property are interfered with.

b. If it is, a person must get notice and a reasonable opportunity to be heard.

c. If you are NOT dealing with a person’s life, liberty or property than
government can deny w/o procedural due process.

3) Property Defined
a. Can be from CL or statutes (Ex: real property, intellectual property) OR

b. Statutory Entitlements (“New Property”)

(Ex: welfare, government benefits, social security, etc.)
This may or may not constitute property to trigger DP.

Bd. of Regents of State Colleges v. Roth (1972)

Roth was given a one year non-tenured contract to teach at university. The university
declined to renew his contract w/o giving reasons why. Roth claimed that the process
violated the DPC b/c he received no notice or oppty. to be heard and thus his property
was being taken.
• Roth’s interest in being rehired was NOT an interest in liberty or property.

LAF for Determining if there is a Property Interest in a Benefit

There must exist:

1) A reasonable expectation the benefit will continue.

2) A legitimate claim of entitlement.

3) A reasonable reliance on the benefit by the recipient.

Perry v. Sinderman (1972) [Roth Companion Case]

Sindermann had a faculty brochure put out by the school that he relied on for
assuming de facto tenure.
Using the Roth framework:
1) Yes. The faculty guide indicated.
2) Maybe. Enough to get a trial.
3) Yes.
Thus, Sindermann likely had a property interest. His “leg up” was the property

4) What Process is Due?

a. If a deprivation of life, liberty or property (interest) is found, the
requirements of what kinds of procedure the government must provide
depends on three factors formulated in Mathews v. Eldridge.

Mathews v. Eldridge (1976)

Eldridge was being denied continuation of his disability benefits – SSA. Determination
was based on questionnaire responses, reports from doctors and files. He never
received a formal hearing. Proced. DP was triggered b/c he had a property interest in
the SSA benefits.
• No evidentiary hearing was required b/f termination b/c he wasn’t getting
money while he was waiting for the process.
• A letter to him and a letter back was enough to satisfy procedural due process.

Three Part Balancing Test to Determine how “Formal” the Process
Must Be
(Mathews v. Eldridge)

1) The private interest that will be affected by the official action.

2) The risk of erroneous deprivation of the interest through the procedures used, and
the probable value, if any, if additional procedures/safeguards were used.

3) The government interest…

a. Administrative and financial costs to government if they had to conduct
additional or substitute procedures.

The government interest is balanced against the private interest and right to DP.
The procedures are adjusted to achieve the balance.

HYPO – Riccio Client Bar Admission Example

Student was denied admission to the Bar b/c he allegedly lied on his application.
The liberty interest involved could be the right to pursue livelihood (of practicing
law). The key here – was that the Board of Examiners never told the student
what precisely he lied about.

Goss v. Lopez (1975)

A 6th grader was suspended temporarily and denied his right to education.
Applying Mathews tripartite test:
1) Right to education.
2) Risk not great.
3) Gov’t interest is important b/c you can’t have a formal hearing every time a kid is
So, what kind of hearing do you have? Could be a whole range – as simple as a conversation
with the principle.

LAF for Procedural Due Process

1) Is there a life, liberty or property interest?

a. KEY! This is the triggering mechanism – there must be a legitimate claim to

2) If the property interest is a benefit, go through the LAF for determining if there is
a property interest in a benefit:
a. Is there a reasonable expectation the benefit will continue?
b. Is there a legitimate claim of entitlement?
c. Is the reliance on the benefit by the recipient reasonable?

3) What process is due?

a. Notice & Opportunity to be Heard
b. Go through the Mathews Tripartite Balancing Test.


A deluxe hearing is seldom required for entitlement deprivation.

Normally some documentary or administrative review will suffice.

The hearing or procedure generally must occur before the deprivation EXCEPT in cases where
there is an overriding interest like destroying contaminated food. (N. American Cold Storage)

Contracts Clause

A state may NOT make a law that impairs or alters existing contractual relationships.
However, a state may always legislate prospectively to affect future contracts.

1) Generally
a. The Court basically disregards the plain language of the statute. The Court
suggests that the framers’ own interpretation of the Contracts Clause is not
i. “No state shall make or pass a law impairing the obligation of

b. Applies to both federal and state governments.

c. The 5th Amendment DPC is the parallel to the Contracts Clause.

Home Bldg. & Loan Ass’n v. Blaisdell (1934)

Mortgage moratorium law passed during period of Depression. There was a
specific time frame in which the moratorium would cease. (NOTE: This is an
impairment of a contract b/c government changed the terms of a contract). It
gets upheld via police power – WOW – this is SCARY!!! POWER!!! What happened
to legitimacy?

LAF for Testing the Constitutionality of a State Law

as being Violative of the Contracts Clause
(Energy Reserves)
1) Is there a contract?

2) Does the state law operate as a substantial impairment?

a. Insubstantial impairments are OK.
b. This is the key inquiry.

3) There must be a significant and legitimate public purpose for the impairment.
a. Police power to remedy broad and social ills is especially good.
b. Generally deferential to what the state says is the purpose.

4) Impairment must be based on reasonable conditions that are of a character

appropriate to the state’s purpose.
a. This means analysis.

5) Court will defer to the state’s judgment UNLESS the government is a party to the
contract. (If gov’t is a party – there will be a much higher level of review)
First Amendment:
Freedom of Expression

1) Generally
“Congress shall make no law…abridging the freedom of speech, or of the

b. Despite the language of the first amendment…freedom of speech is NOT



2) Types of Speech
a. Actual Speech
i. Spoken words and printed matter.
ii. Requires no further inquiry to determine if the 1st Amendment applies.
b. Symbolic Speech
i. This is conduct that conveys a message (Ex: wearing a black armband
to protest the Vietnam War).
ii. To receive 1st Amendment protection, the conduct must be “symbolic.”
(discuss supra)

3) Philosophy Behind Free Expression

a. Search for the Truth – Marketplace of Ideas

b. Self-Governance Rationale
i. Participation in government and democracy.

c. Individual Self-Fulfillment
i. The significance of free expression rests on the central human capacity
to create and express symbolic systems such as speech, writing,
pictures and music.

d. Tolerant Society
i. Helps to shape the intellectual character of society.

e. Safety Valve
i. By allowing speech to be spoken it reduces chance of revolt b/c persons
are allowed to “blow off steam.”

f. Check on Abuse of Power

i. Could bring to attention the abuse of power by public officials.
ii. Power of public opinion.

4) Speech Value
a. High Value
The way in which
the speech is Speech that is supported by a core value.
valued dictates the (Ex: political speech)
• This speech gets the greatest protection from the Court.
• Laws that prohibit high value speech get scrutinized by the Court.
• Government interest need not be as great.

b. Low Value
Speech that is closely connected to a core value.
• False statements of fact
• Invading someone’s privacy for no good reason (Ex: identity of rape
• Commercial advertising
• Obscenity
• Lewd, profane, indecent
• Pornography
• Hate speech
Easier for government interest to outweigh the speech here – so it doesn’t
have to be as great as with high value speech.

5) Types of Restrictions on Speech

This is an important distinction, b/c it will determine the Court’s 1st Amendment
analysis/scrutiny of the law.
a. Content Based – Usually SS Review
i. Government has restricted the communication b/c of the message
conveyed. Deals with communicative impact.
(Ex: forbid hiring of teachers who advocate overthrowing of gov’t, ban
display of swastikas in certain neighborhoods)
ii. Court examines this very closely.

b. Content Neutral – Review is less demanding/Lower level

i. Government restricts the communication w/o regard to the message
conveyed. Concerned only with time, place and manner.
(Ex: no billboards in residential communities, no noisy speeches near

Exam Tip

When trying to determine if the law is CB or CN, ask the following:

“Would the harm the government is trying to prevent exist to the same degree if
the listener/reader did not understand English?”

6) Facial Infirmities
If any of these facial attacks succeeds the statute or regulation is invalid. It doesn’t
matter if the speech could/would be protected. If the law falls into one of these
categories, the analysis is over.
NOTE: These doctrines aren’t used much anymore. Can still make an argument – but
not likely to succeed.

a. Overbreadth
A statute is overbroad if it bans speech which could constitutionally
be forbidden but ALSO bans speech (of others not before the Court)
which is protected by the 1st Amendment.
(Kind of an exception to the third-party rule in Standing)

Example 
Statute prohibits anyone from burning a US flag for any purpose

Be sure to notice the distinction b/n overbreadth and vagueness. In
overbreadth, the uncertainty is hidden or latent. In vagueness, the
uncertainty is easily apparent.

Gooding v. Wilson (1972)

Law stated that any person who, without provocation, used opprobrious words or
abusive language to another, tending to cause a breach of the peace was guilty of
a misdemeanor. The law punished only spoken words.
o Limits on speech must fit within narrow classes.
o Statutes must be carefully drawn or authoritatively construed to punish
only unprotected speech and not susceptive of application to protected
expression (overbroad).

b. Vagueness
i. The law government uses to restrict speech is too vague.
A law is void on its face if it is so vague that reasonable persons must
necessarily guess at its meaning and differ as to its application.

Example:  Statute prohibits anyone from burning a US flag as a symbol
of opposition to organized government.

c. Prior Restraint
i. Laws that prevent speech.
ii. This smacks of censorship and carries a heavy presumption of invalidity.
iii. Really the only time permitted is for reasons of national security to
protect troops in action.

Lovell v. Griffin (1938)

The grounds upon which a permit may be denied must be set forth specifically and
narrowly in the ordinance. If the official charged with granting or denying a
permit application is given too much discretion, the ordinance will be voided for
overbreadth, vagueness or both.

7) Two Ways Courts Deal with Free Speech Issues

a. Balancing Approach
i. Balancing of core values v. government interest.

ii. This occurs UNLESS a categorical exclusion applies.

(Ex: Brandenburg. Government interest is peace, safety, general
welfare. Court determines the core values outweighed the government

b. Categorical Exclusion (from Chaplinsky)

i. Certain well defined and narrowly classified categories that are NOT
o Lewd
o Obscene
o Profane
o Libelous
o Insulting or Fighting Words

ii. Balancing will NOT apply here b/c the categories by their very nature
inflict injury and possible immediate breach of peace.

iii. These categories are automatically unprotected.

Hence, the government interest is irrelevant.
Core Values Government Interest
Search for Truth Peace
Self-Governance Safety
Individual Self-Fulfillment General Welfare
Safety Valve National Security
Tolerant Society Balance These
Value of Speech
Content Based or Neutral
Prior Restraint, Right to Know

8) Why do we protect speech in America?
SEE J. Brandeis’ concurring opinion in Whitney.

Riccio says
these • Freedom to develop our faculties.
underlying • Liberty is the secret of happiness and courage the secret to liberty.
concepts are • Freedom to think as you will and speak as think are indispensable to the
important. discovery and spread of political truth.
This • Without free speech and assembly discussion would be futile.
concurrence • Public discussion is a political duty.
is the best
explanation • Fear of serious injury cannot alone justify suppression of free speech
of why we and assembly. (men feared witches and burned women)
protect • It is the function of speech to free men from the bondage of irrational
speech in
America. fears.
• Only an emergency can justify repression.

Holocaust art exhibit in NYC is being protested (designer gas canisters,
lego gas chambers, etc.). The solution – museum ended up putting up a sign
as you enter warning of the potential disturbance and allowing a way to exit
the exhibit. This is an example of speech that is upsetting and it is
answered with more speech.
Good example of what J. Brandeis talks about in his concurrence in

Next Page Begins Content Based Restrictions



Since this speech is of very high value it is very difficult to limit.

1) Brandenburg v. Ohio (1969) Formulation of Current State of the Law

Defendant, a leader of the KKK was charged with violating Ohio’s Criminal Syndicalism
Statute which forbade the advocacy of crime or violence as a means of accomplishing
industrial or political reform.
• Court invalidated the statute by applying a test that articulated two conditions that
must be satisfied to proscribe speech advocating the use of force or crime.
• The statute was sufficiently broad that it forbade advocacy of the abstract
doctrine of violent political change as well as incitement to unlawful action.

2) Expression that INDUCES Unlawful Conduct (Now Gets Brandenburg Analysis)

a. This is government’s effort to restrict speech which attempts to persuade, induce

incite, advocate, urge or proselytize someone to do something that is against the

LAF for when Government may Punish Openly Subversive Speech

(Brandenburg Test)

1) Speech must expressly advocate a violation of the law that is imminent.

2) The violation must be likely to occur.

 Pre-Brandenburg Cases

Masses Publishing Co. v. Patten (1917)

Court begins to draw distinctions b/n words. The speech issue consisted of anti-
war cartoons and text which criticized the war and the draft and expressed
sympathy for draft dodgers. Judge Hand said this was not a direct call to violate
the law and t/f was protected speech.
 You can’t counsel or advise someone to break the law – that’s unprotected.
 But – agitation IS protected.
This test/approach has been rejected.

Shaffer v. US (1919)
Defendant produced and distributed an anti-war booklet during the time of WWI.
He was convicted for violating the Espionage Act of 1917. Court establishes the
Bad Tendency Standard  Whether the natural and probable tendency of the
publication is likely to produce the effect prohibited by the regulation.
 There was enough evidence to show the hostile attitude of his mind
against the prosecution of war by the US.
 Conviction upheld.

Schenck v. US (1919)
Defendant was charged with conspiring to violate the 1917 Espionage Act. He was
prosecuted for circulating a flyer to recent draftees encouraging them to resist
the draft. Court formulates the 
CLEAR AND PRESENT DANGER TEST: Whether the words are used in such
circumstances and are of the nature to create a clear and present danger that
they will bring about the substantive evils that Congress has a right to prevent.
It is a question of proximity.

 Terrorism

Dennis v. US (1951)
Deals with a situation in which the Smith Act says:
It shall be unlawful to advocate, teach, advise, etc. of overthrowing or destroying
any US Government or assassination of an office of such government.
The question becomes…
When there are in the US meetings of communists and they talk about the evils of
capitalism and the leaders of the communist party in this country sought
invocation of a communist revolution – what can we do?
NOTE: This is exactly what is going on in the terrorist cells in America
• Court upheld defendant’s conviction.
• Here, the evil was so great that even a small, non-imminent chance of
success justified curtailing free speech.

Whether the gravity of the evil, discounted by its
improbability, justifies such invasion of free
speech as is necessary to avoid the danger.

Something to Think About…

The situation is today – the Al Qaedas. The CIA and the FBI have these groups under
surveillance in our country. Through thermo imagery they are able to peer into their rooms, have
a wire tap and are listening to their conversations. The conversation is anti-American (i.e., 9-11
was a good thing, etc.). Nonetheless, it is all discussion. The FBI breaks in and arrests them all
– note that they are all US citizens. No charges are filed except lawfully advocating, advising,
etc. to overthrow or destroy the US government.
Absent Dennis we have a big nothing.
However, the Dennis Test says that if the risk is big enough then free speech is going to be
watered down.

Keep in mind that when we go down this slippery slope we are changing the fabric of our country.
All of the rights and liberties we enjoy will be chipped away at.
Nonetheless, this is what we are currently doing.

3) Threats (No Protection)

a. Generally
i. As a general proposition, threats are categorically unprotected by the 1st
1. Thus, if you’re a defense atty, you say it wasn’t a threat – rather an
opinion, a stimulation – anything but a threat.

Speech which communicates the possibility of future use of physical force
or violence against the intended victim OR unlawful damage of valuable

iii. Threats are not protected b/c:

1. Recipients are afraid. (stalkers, perverts, etc.)
2. Mental anguish.

How do you know it is a threat?
 How clever can you be to characterize it as just speech? If you can make
it just speech it has 1st Amendment protections.
 Try to spin into a non-threat:
1) “I was just joking.”
2) “She knew it was a joke. We talked about it.”
3) Political hyperbole. (Watts)
b. How do we know a threat is a real threat?
Jury determines “reasonableness.”

i. Reasonable Speaker Standard
A reasonable speaker would have reasonably foreseen that their speech
would be construed as a threat.

ii. Reasonable Listener Standard

A reasonable listener would construe the words as a threat.

RAV v. City of St. Paul (1992)

Threats of violence are outside the 1st Amendment due to the need to protect individuals from the
fear of violence.

Watts v. US (1969)
During a public rally in Washington, D who had received his draft notice stated he would want to get
his sights on LBJ if they let him carry a rifle. He was convicted of violating a federal statute
prohibiting a person to make a threat to take the life of or inflict harm on the President of the US.
 Court reversed his conviction.
 They stated his political hyperbole did not constitute a threat w/in the meaning of the

Nuremberg Files (abortion hit list case)

On the website pro-life radicals had a list of names and addresses of prominent persons, mostly
doctors, who were performing and supporting abortion. Each time one was murdered an “X” would
be placed through their photo. The implication was “one down and nine to go.” Jury found them
The question is…
Was it a threat or categorically protected speech under Brandenburg?

1) What about emails back and forth b/n two persons about raping and mutilating
women. Is that protected? If not a threat, it is beyond Brandenburg.
2) What about a burning cross on the lawn of an African American that says “the
next one is for you.”


1) Generally
a. Government Interests
i. Respect for judge, judicial system, undermining the authority of the judge
b. Core Values
i. Right to know, search for truth, can argue many of the values.
c. Will or will not be protected depending on the results of the balancing test.

Bridges v. California (1941)

Bridges, president of a union, sent a telegram to the Sec’y of Labor and then published it –
it criticized the judge’s decision in a case against him as “outrageous” and suggesting if it
were enforced the union would call a strike to tie up the ports of LA.
In a companion case, an LA newspaper was found guilty of contempt for publishing a series
of editorials concerning the pending sentencing of two members of a labor union. The
editorial described the defendants as “thugs” and “gorillas” and called on the judge to
sentence them to prison or otherwise make a serious mistake.
Both cases maintained the contempt convictions violated their rights of free speech and
press. Held  Court protected after balancing analysis.

2) Attorneys
a. State may restrict speech by an attorney about pending cases if the attorney
knows or reasonably should know that the speech will have a substantial likelihood
of materially prejudicing the proceeding. Gentile v. State Bar of Nevada (1991)

b. BUT…
State may NOT restrict the press from reporting on pending criminal cases
without meeting the clear and present danger standard.
Gentile v. State Bar of Nevada (1991)


(Could produce a hostile or violent reaction.)

1) Fighting Words Generally [Categorically unprotected but tightly limited]

a. Definition
Face to face encounter. Directed at a particular individual. Likely to imminently
produce a reaction. Must really be “in your face” to the point that the person
would likely respond by punching you in the face. VERY NARROW!!

Something is NOT fighting words merely b/c it is provocative or insulting.

(bald headed bastard example)

Chaplinsky v. New Hampshire (1942)

Chaplinsky was a Jehovah’s Witness convicted of violating a state statute
forbidding a person to address another with offensive language (etc.). “You are a
g.d. fascists…damned racketeer.”
HELD  Court upheld the statute and defendant’s conviction – stating that he
used fighting words.
NOTE: This case would not likely come out the same way today.

Rosenfeld v. NJ (1972)
Rosenfeld use the word “m-f’er” on four occasions to describe the school board,
the town and the country. A companion case was Brown v. Oklahoma, where Brown,
a member of the Black Panthers called some police officers during a Q&A in front
of a large audience at a university “m-f’ing fascist pig cops” and to one particular
officer as a “black m-f’ing pig.”
Each person was convicted under a state law prohibiting, in various forms, the use
of profanity in public. HELD  Convictions reversed. Not fighting words.

b. Limits
i. Anger Not Enough
1. Crowd must be so angry they are likely to fight.
ii. Crowd Control
1. The police must control the angry crowd instead of arresting the
speaker if they have the ability to do so. (No Heckler’s Veto)
iii. Dislike of Speaker’s Identity
1. Doesn’t apply where it’s the mere identity or lawful acts of the
speaker, rather than threatening words, that moves the crowd to

2) Where the Speaker is Insulting to a Large Group

In Feiner the police Feiner v. NY (1951)

silence the speaker. Feiner was convicted of the offense of disorderly conduct after he continued giving a
speech when a policeman ordered him numerous times to stop. He was making derogatory
“Heckler’s Veto”
political statements and name-calling. This is HIGH VALUE political speech. Statute was
COURT WILL NO content based.
• Conviction upheld b/c Court found that the officer, in making the arrest, was
Generally should
protect the
motivated solely by a proper concern for the preservation of order and
speaker. protection of the general welfare – not to suppress Feiner’s views.
NOTE: Feiner would NOT be decided the same way today.

Terminiello v. Chicago (1949)

Terminiello was convicted of disorderly conduct based on a speech he delivered to more
than 800 persons in an auditorium. He goaded his opponents calling them names like
“snakes” and “bedbugs.” Lower court instructed jury that if they found Terminiello’s
speech to incite anger he should be convicted.
• Conviction reversed.
• The very function of free speech is to invite dispute!
• Function of the police was to control the crowd.

Cantwell v. CT (1940)
Cantwell, a Jehovah’s Witness played a record that attacked Catholics to persons he
encountered on the street. He was charged and convicted of breach of the peace. This is
• Court reversed conviction b/c his communication did not raise a clear and
present menace to the public peace.

Cox v. LA (1965)
Cox was advocating students break the law by sitting at a lunch counter.
• His conviction was overturned b/c the Court found no conduct which the state
had a right to prohibit as a breach of the peace.
• There was no evidence (absent some mutterings) that anyone was inclined to

Gregory v. Chicago (1969)

Gregory led a group of protestors to the mayor’s home and they carried signs calling him a
“snake.” White onlookers became increasingly unruly and some spectators attempted to
physically block the march. The police informed Gregory that the situation was becoming
increasingly dangerous and asked them to go home. Gregory refused and he and others
were arrested.
• Court unanimously overturned the conviction b/c there was no evidence that
petitioner’s conduct was unruly.
• It was the crowd that was the problem.

The Skokie Controversy

Nazi parade in Jewish community where many are Holocaust survivors. The community
argued that the parade would create tremendous psychological harm and sacrifice human
• The Court permitted the parade to take place.

Things to Think About…

The approach the Court takes in the absence of application of the Brandenburg formula is to
protect the speaker and control the crowd.
Why? Because we value speech – core values.
Thus, it doesn’t matter if the speaker is a Nazi or MLK, Jr. – the rule is the same.
The Court will NOT permit a Heckler’s Veto.

The Government cannot/may not make a value judgment on the content of speech. The KEY
CONCEPT is that government must be a neutral player.
The end result is that we tolerate unpopular worthless speech for the greater good of
establishing the principle.

Today, the answer to many of our concerns is controlled through the use of permits. (Ex:
When Leonard Jeffries came to school).
The problem with permits is that they are sometimes a subterfuge for censoring speech (Ex:
The key is that regulations may not discriminate on the basis of content of message.


1) Generally [Balance Core Values v. Government Interest]

a. This speech deals with the public’s “right to know.”

b. So, what we’re balancing now is the right to know v. the government interest
(privacy, national security).

c. Deals mostly with freedom of press.

d. J. Black – “Press serves the governed – not the governors.”

e. Theoretically, a democratic society has a right to know everything a government is



• Can the risk be eliminated through careful internal procedures?
• Are there other alternatives?
• Justifications for censoring cannot be too vague.

Landmark Communications v. VA (1978)

Landmark was convicted of violating a state statute prohibiting any person to divulge
information regarding confidential matters pending before the judicial commission. The
newspaper reported an investigation into a particular state judge. The statute said you can’t
print in newspaper until after the decision as to guilt is made.

The state argued the disclosure of confidential information created a clear and present
danger to the effective operation of the commission, undermined the judicial system and the
reputation of the judge and discouraged individuals from coming forward (chilled witnesses
for fear their name would be in the paper).
• Statute is unconstitutional b/c much of the risk could be eliminated through
careful internal procedures.
• The right to know outweighed the government interests.

Nebraska Press Ass’n v. Stuart (1976)

Print and electronic media was gagged by the judge b/c he wanted to ensure a fair trial by an
impartial jury.
• Gag order was unconstitutional b/c there existed alternatives and it was a
prior restraint on speech.
• There is a heavy presumption that prior restraints are unconstitutional.

Pentagon Papers Case (1971)

NYT and Wash. Post sought to publish excerpts of a top secret DOD study that was leaked by
an informant. Government brought an action seeking to enjoin the publication of information.

They were seeking a prior restraint on publication of newsworthy information – remember this
is tough.

Government argued the publication would create a threat to national security, lead to the
death of soldiers, the undermining of alliances, the inability of diplomats to negotiate and the
prolongation of war.
• This doesn’t outweigh the right to know. WOW!
• Court said the government didn’t meet the burden for establishing a
justification – too vague were there reasons.
NOTE: J. Brennan’s concurrence says that the government’s interest outweighs our right to
know when the nation is at war.



1) Generally
a. Arises when non-newsworthy information gets published for no good reason
other than to satisfy the public’s desire for gossip.

b. We tolerate this for the ultimate goal of not chilling the press who are often
our only eyes and ears for criticizing the government.

c. We can’t have government censoring the content of the message – then they
start picking and choosing which could be VERY dangerous!

d. If info is lawfully obtained – it cannot be punished.

Cox Broadcasting v. Cohn (1975)

Cox published the name of a rape victim it obtained from a copy of indictment. GA law
said that a victim whose name was divulged could bring an action for invasion of
HELD  Broadcaster cannot be liable for publishing a name that was lawfully
obtained. The interest of privacy fades once information has been placed into the
public record.


1) Generally
a. This used to be categorically unprotected, so that if a person made a false
statement, the victim could bring an action for libel or slander.

b. This changed with NY Times v. Sullivan, where the Court created a special rule
whose application depends on the status of the victim.

2) Actual Malice Standard/Public Officials

NY Times v. Sullivan (1964)
Times published an ad that allegedly libeled Sullivan (an elected Commissioner of the
City of Montgomery, AL) – statements contained in the ad were inaccurate.
• Court changes the rule to the Actual Malice Standard b/c:
i. Officials assume risk.
ii. They have greater access to the media.
iii. Core value speech (criticism of government)
iv. Self-censoring effect
v. Falsehoods shed light on truth
vi. First Amendment needs breathing space.
• To be actionable, statement must be made with actual malice which is
(a) knowledge it was false AND (b) with reckless disregard whether the
statement is false or not.
• Applies to public officials acting in the course of official conduct.

3) What is NOT Actual Malice

Harte-Hanks Communications v. Connaughton (1989)

• Neither failure to comply with professional standards nor publication of
falsehood in order to increase profits is in itself sufficient to establish
actual malice.
• BUT purposeful avoidance of the truth may be.

St. Amant v. Thompson (1968)

• Failure to investigate or otherwise seek corroboration prior to
publication is NOT reckless disregard for the truth unless the
publisher acts with a high degree of awareness of probable falsity.

These cases show us that the actual malice standard is
difficult if not impossible to prove.
Often, reputation takes a hit.

Exam Tip

Actual Malice Standard is nearly insurmountable

and a VERY important point of law.

4) Actual Malice Standard/Public Figures

Curtis Publishing v. Butts (1967)

Article published about Butts who was athletic director for a Georgia university.
• NYT Actual Malice Standard applies to public figures.

To Determine if a Public Figure

1) Individual has achieved pervasive fame or notoriety that he becomes a
public figure for all purposes in all contexts.
(Ex: Monica Lewinsky, Michael Jackson, Michael Jordan)

2) Individual voluntarily interjects himself or is drawn into a particular

public controversy and thereby becomes a public figure for a limited
range of issues.
(Ex: Linda Tripp, Kenneth Starr)
NOTE: The analysis for public figures is much more difficult. Half
of the litigation debate is determining if person is a public figure.

Gertz v. Robert Welch, Inc. (1974)

When Gertz brought the action, the defense argued Gertz was a public figure by
virtue of his representation of the Nelson family in connection with a high profile
• Court rejected that he was a public figure.

Actual malice standard does NOT apply to private figure b/c:

1) Ability to rebut falsehood is less as a private figure (can’t use media in the
same way).
2) Public criticism not invited (as it would be if you injected yourself into a public

Hustler Magazine v. Fallwell (1988)

Comic in the magazine was disparaging against Fallwell. He failed b/c he was a
public figure. Lawyer was clever, however, and said Falwell suffered ED.
• Actual Malice applies in libel OR ED or any way you bring an action
based on speech.

1) Gary Condit Hypo
Maybe someone wants to discredit Gary Condit, so they run a story on info retained from
Condit’s office but it is a lie. Info received was that “Gary Condit had a raging sex affair with
Chandra Levy and he is engaged in multiple sexual relationships not involving his wife.” The
reporter runs the story. Condit comes to you as attorney and says none of this is true and he
wants his life back.

2) Model Face Slashed

Woman model who got her face scarred became a public figure as a result. Reporters press into
info of why the LL wanted to scar her face so they dug around and published disparaging stories.
A few years down the road she tried to kill herself as a result. Why? Because she had no
remedy by way of the actual malice standard – even though she never asked for this.

In some ways the Actual Malice Standard may be overprotective of speech and harm the
innocent person. Often times the lie never catches up with the speech.
Usually poses a problem in the context of a public figure.

LAF for Determining Actionability in a Case Brought against a Person who is Alleging
Libel or Slander by Another Person
(NY Times v. Sullivan Standard)


1) Statement must be made with ACTUAL MALICE which is:

a. Knowledge it was false OR
b. With reckless disregard whether it was false or not.

2) Applies to:
a. Public Officials
i. Elected Office Holders
ii. Government Employees that have some discretion , control or decision-
making power.
(Ex: police officer, public school teacher, military officer, but not a
b. Public Figures
i. Individual has achieved pervasive fame or notoriety that he becomes a
public figure for all purposes in all contexts.
(Ex: Monica Lewinsky, Michael Jackson, Michael Jordan)
II. Individual voluntarily interjects himself or is drawn into a particular
public controversy and thereby becomes a public figure for a limited
range of issues.
(Ex: Linda Tripp, Kenneth Starr)
NOTE: The analysis for public figures is much more difficult.
Half of the litigation debate is determining if person is a public
1) Generally
a. Definition:
i. Speech that refers to a specific brand name, product or service.

ii. Made by a speaker with a financial interest in the sale of the advertised
product or service, in the sale of a competing product or service, or in the
distribution of the speech.

iii. It does not advertise an activity that by itself is protected by the 1st

b. Merely b/c money gets paid to put forth the speech does NOT make it commercial

VA State Bd. of Pharmacy v. VA Citizens Consumer Council (1976)

Law said pharmacies can’t advertise their RX drug prices (Small mom&pop shops
had a strong lobby). This falls in the truthful, nondeceptive speech category.
• Protected speech b/c the public benefits from commercial speech.
• The right to speak as well as the right to listen is protected here.
• Court recognizes that commercial speech is protected for good reasons
related to consumer interest.

44 Liquormart, Inc. v. RI (1996)

Law said you can’t advertise the price of liquor visible from the street.
Government justification is that they don’t want to promote alcohol consumption.
• Unconstitutional.
• This is regulation of truthful, non-deceptive speech.
• Fails part 4 of the CH test (could use taxes, regulate per capita
purchases, etc.)

NOTE: Court takes a “rigorous review” of restriction on commercial speech.

Proceed to Next Page for LAF

LAF for Identifying Commercial Speech

1) Is the speech commercial?

a. There is no iron clad definition, but the Court looks to see whether the
speaker is engaged in proposing a commercial transaction that relates to a
product (Ex: price, quality).
b. The speaker wants the listener to buy or do something. Speaker is inviting
them on the basis of their pitch to buy or do something.

2) Government Regulation of Speech

These a. Prohibition of speech pertaining to an unlawful transaction
three do
NOT take (Ex: drugs)
you to the
CH Test.
b. Government may prohibit speech that deals with misleading or deceiving
c. Aggressive commercial speech may be prohibited.
Must move (Ex: telemarketers – “please put me on do not call list”)
to CH Test d. Government may require disclosure to protect consumers.
e. Truthful, non-deceptive commercial speech (THE BIG ONE)
i. This is the one that produces the most confusion.
ii. Courts usually invalidate this.


LAF For Regulating Commercial Speech

Four Part Central Hudson Test

1) Speech at issue must concern a lawful activity and must not be misleading or
a. If either, the speech gets no protection and the law is valid.
(Ex: Categs. a, b and c)

2) The regulation must further a substantial government interest.

a. Protect consumers from some evil.

3) The regulation must directly advance the substantial interest.

4) There must be no less restrictive means of furthering the interest.

2) Lawyer Advertising
a. Government interest for prohibition:
i. Detracts from professionalism.
ii. Increases frivolous lawsuits.
b. Used to be banned – but now given a great deal of protection.

An explosion occurs in Edison.
• Shouldn’t go when people are grieving. This is too close to aggressive
• Runners – DO NOT USE THESE!


1) Generally [Categorically unprotected]

a. Obscenity is basically sex.

b. It can take two forms: visual image OR words.

c. A good example is a movie b/c it is a combination of both. It would be difficult

for a mere spoken or written word to be obscene.

d. Content based b/c message government is censoring is sex.

KEY: If the expression is deemed obscene then it is categorically unprotected!!!


2) Defining Obscenity
a. This is a critical analysis which is extremely complex b/c the Court has struggled
over time with trying to figure out what it is and is not.
(“I know it when I see it.” – J. Harlan)

b. It is HARD TO PROVE something is obscene. What we’re really talking about are
those types of expressions which really border on the sick – violence, mutilation.
Just sex won’t usually cut it -- HARD CORE SEX.

Miller Test

1) Average Person
a. (i.e., juror) not the hypersensitive or insensitive
2) Contemporary Community Standards
a. Look at the mores/values of a particular community – NOT a national standard.
b. Ex: NY standards are different than Kansas standards.
c. Could even be localized w/in a state (Ex: Ocean Grove, NJ v. Seaside, NJ)
3) Work Taken as a Whole
a. Can’t pick a segment of something – must be valued as a whole.
i. Ex: can’t pick a scene out of a movie.
4) Appeals to Prurient Interest
a. Lustful, Lascivious
5) Sexual Conduct/Patently Offensive
a. There must be sexual conduct – curses and violence are not obscene. There
MUST be patently offensive sex.
6) Work as a Whole Lacks Serious Literary, Scientific or Political Value

All determined by a jury. Statute must be specific.

3) Policy Rationale for Not Protecting the Obscene

a. Minors – corruption
b. Violence toward women
c. Woman as objects
d. Societal Standards
e. Etc.

4) Why Categorically Exclude Obscenity and not Hate Speech, etc. based on the
Above Policy Rationale?
a. The difference is that the obscenity standard is SO TOUGH TO MEET that
when something meets the standard it is totally worthless.

What about totally nude dancing in a club by men/women? Is that kind of activity
protected or is it obscene?
• Depends on where you are. Utah – probably unprotected. Vegas – probably
• If you are defending your client – really play up Prong 6 – think of whatever
you can.
(Ex: nude dancer wears nothing but the American Flag. As hysterical as it
sounds, you must pull something from somewhere.

Two movie theatres exhibited adult films – a warning was on the exterior. The
local DA alleged the movies were obscene. The theatres’ defense was that (1)
there was a warning that the films were obscene and (2) they were exhibited to
consenting adults only. ISSUE: Can the government prohibit consenting adults
from viewing obscene films in a movie theatre?
Court says  If the movie is obscene, you as the owner of a movie theatre cannot
show the movie – regardless of warnings and adult requirement.

NY V. FERBER (1981) P. 1181

Movie showing young boys masturbating – according to Manhattan jury – is not
obscene (good example of differing community standards). Owner was convicted
for violating a statute prohibiting and person to knowingly produce….any material
depicting the “sexual performance” of a child under the age of 16. So, now we’re
dealing with a non-obscene movie – but Court doesn’t protect it b/c there is
significant interest in protecting children (they enumerate policy reasons at 1181-

Why is the film in Ferber considered unprotected if it was not obscene?

• Child participating, according to Court, is being exploited – and b/c they
are children they need protection.
• Really has nothing to do with what the film is depicting.


` Drive-in movie theatre was prohibited by ordinance of showing any film that
depicted human male or female buttocks, female bare breasts, or m/f public areas
if visible from the public street.
COURT SAYS  Nope. Ordinance not narrowly tailored enough. Overbroad b/c
sweepingly forbids display of all films containing any uncovered bare breasts or
breast. CONTENT BASED not CONTENT NEUTRAL. Could have accomplished
what they wanted if they made a blanket ban of movie screens being viewed from
the highway – b/c wouldn’t be content based.


1) Generally
a. Basically curse words, vulgarities. Language that is offensive.

b. All are protected, but considered low value speech and get less protection.

c. The critical determination is:

Whether the speech is directed at a captive audience?

Captive Audience
Occurs when a substantial privacy interest is being invaded in an essentially
intolerable manner and the listener/viewer cannot turn away with ease b/c of the
“degree of captivity.”
If Found  Court will give less protection and may impose restrictions or punish.
If NOT Found  Only recourse is to avert eyes/ears.

COHEN V. CALIFORNIA (1971) P. 1184

Appellant wore a jacket in courthouse corridor that said “Fuck the Draft” on the back.
Women and children were present – oh dear! Cohen had no conduct that was disturbing
anyone. Not obscene. Not fighting words. Appellee brings up a captive audience
argument – people are stuck where they are – they have no choice but to listen/view.
Court says  No. People could leave or avert their eyes. Community argued they wanted
to raise the morals of their community – Court this wasn’t sufficient reason to punish the
speaker. Court enumerates difference b/n cognitive and emotive expression (“Fuck the
draft” is full of emotive expression – very different emotion conveyed than “Darn the
draft”). Speaker has a right to say this b/c “F” word has value as an emotive form of

Where might you be captive?

• School setting
• Bus, subway
• Plane (Ex: in flight movie is “Deep Throat” – wouldn’t get
same level of protection as it would at the Paris Adult
Theatre. Not an obscene movie.)


George Carlin monologue on the 5 words you can’t say on airwaves was broadcast at 2
o’clock in the afternoon on a NY radio station. A listener who was driving with his young
son heard and complained and FCC noted the complaint on record. Essentially, radio
station’s expression was punished. Court affirmed. Why? Even though there is a warning
– people may tune in after warning – making it inadequate. How is this different from
Cohen? With the radio – you can’t avoid it. “To say that one may avoid further offense by
turning off the radio after he hears it is like saying the remedy for assault is to run away
after the first blow.”


1) Generally
a. Definition:
i. Verbal insults that are derogatory, demeaning, ridiculing, belittling speech
that usually involves an immutable characteristic such as race, sexual
orientation, disability, religion, etc.
ii. Usually a slang, pejorative, vulgar on the basis of the characteristic.

b. Government efforts to regulate hate speech attacking racial minorities, women,

gays or other traditionally disfavored groups – is likely to run afoul of the 1st A for
being content based.

c. Government may choose to ban ALL hate speech – but can’t pick and choose based
on message.

RAV v. City of St. Paul (1992) p. 1219

Ordinance makes it a crime to “place on public or private property a symbol,
characterization or graffiti which one knows arouses anger, alarm or resentment in
others on the basis of race, color, creed, religion or gender.” D is prosecuted for
having burned a cross on the yard of an African American family in the middle of
the night. criminalized hate speech such as cross burning or other symbols that
one knows will arouse anger. HELD  Unconstitutional, b/c although it reached
only fighting words – it stated what fighting words it reached. City could have
banned ALL fighting words and not just those based on racial bias.
Valueless speech will be protected if government does not selectively engage in
choosing what valueless speech to punish. This creates a dilemma if you’re a
lawmaker – run the risk of underbreadth if cover a few – but if cover all obscenity
than you are overbroad. The Court does NO balancing here

What we need to get from this case:

Low value or no value is no longer invisible to the 1st A.
If govt is going to attempt to punish this type of speech – it
must do so by not punishing only a subset of that speech. (Ex:
fighting words dealing only with race, color, religion)
The problem, however, becomes you run the risk of overbroad.

NOTE: A very confusing case b/c does no analysis. Nonetheless, must realize
what it does and does not do.

One Exception – Selective Prohibition p. 1219A

o Permitted when reason for it being singled out is reason why
speech was categorically excluded to begin with.
a. Ex: punishing obscenity if it involves the most
lascivious displays of sexual activity. p. 1220B

REGINA V KEEGSTRA 3 SCR 697 (1990) [Canadian S. Ct. Decision]

• Good as it relates to balancing. Better than our cases.
• Everyone who communicates statements other than by private communicates
willfully promotes hate on the basis of race, color, national origin commits crime.
RAV does not
o NOTE RAV would say unconst. b/c too selective.
spell out nicely
• Indictment brought against high school teacher who during his class would make
for us like this.
anti-Semitic remarks to his students (“Jews are sadistic, power hungry, child
killers, etc.”)
• If you represented Keegstra – what motion would you make?
a. Make motion to dismiss b/c speech is protected under Canada’s
version of 1st A Free Speech.
b. This is what he did.
• If you were to do a balancing:
a. Core Values v.
b. Government Interest
1. Peace and Order
2. Dignity
3. Education
4. Equality
5. Psychological Injury
6. Intolerance
7. Gain followers (b/c marketplace of ideas takes too long for
truth to prevail)
• Is hate speech related to core values – if no, low value.
• This is content based restriction on low value speech.
• The Canadian court concluded indictment should not be dismissed. Speech was of
low value and government interests were significant and overwhelming.

1) Generally
a. Title VII prevents discrimination on the basis of employment based on race, color,
religion, national origin or sex.
i. This statute is the predicate for sexual harassment claims.
b. Title VII has 2 different kinds of sexual harassment claims:
i. Quid Pro Quo (something for something)
• Supervisor says to employee that in return for sex they will get
some employment benefit that they will not otherwise get.
• Not the typical case today.
ii. Hostile Work Environment (most typical today)
• Typically comes about when there was a pre-existing affair b/n
supervisor and subordinate. They break up and then the hostility
• Emails. besmirching reputation, etc.
• Could also be the boss who thinks he’s being funny.
c. When a person says something to another in the workplace about sex related
characteristics, racial slurs – protected speech.
i. So, how do you create a cause of action on these words alone?
ii. Title VII.
p. 1227-28 Tells you WHY.
1. Speech must be sufficiently severe of pervasive to
create an environment that a reasonable person would
find hostile.
2. Government in this context may not prohibit speech that
is reasonably designed or intended to contribute to
reasoned debate on issues of public concern.

A. Philosophy and Theory

1) Generally

a. As a general proposition – more likely to be upheld.

The TRICK is in figuring out if content based or content neutral – often a

“murky” distinction.

b. As a general proposition, when the government regulates indirectly by imposing a

limitation on the time, place or manner of the speech – that is usually a content
neutral limitation (not an infallible test but helpful) that is ok b/c it is not being
viewpoint biased.

c. Government can do this when concerned with:

• Aesthetics, peace and quiet, neighborhood, school.

City of Renton p. 1208

Local ordinance says all adult movie theatres prohibited from locating w/in 1000 ft of
residential zone, park, church or school.
Is this CB or CN?
Argument for CN, however, …

City of Short Hills regulates location, size and shape of billboards. Not in residential
zone, and when constructed no more than 10 feet high and not along highways.
CN b/c not based on the message. There is an indirect limit on speech – but doesn’t

LAF for Testing Constitutional Limitation(s) on Content Neutral Speech

(Mostly Time, Place, Manner Restrictions)

1) Is the law content neutral or not?

2) Is the law supported by a substantial government interest?

3) Does the law leave open ample alternative channels for communication of the
a. Is there an adequate substitute?
If YES  Regulation is valid.
If NO  Invalid.

Schad v. Mt. Emphraim (1981)
Adult bookstore had a coin operated machine that allowed to place a coin and see a
live nude dancer behind the window. Violated ordinance that prohibited all live
entertainment in the Borough (this would include any entertainer performing live –
even a guitar player). Could argue CB or CN. Problem is that the ordinance means
nude dancing has nowhere to go in Mt. Ephraim. Thus, would be unconst. b/c there
is no alternative channel as required by the LAF

City of Ladue v. Gilleo (1994)

2 x 3 sign that says “No to War in Persian Gulf”
Regulation Against:
All signs on residential property.
using LAF:
1) CN
2) minimize visible clutter
3) problem is that Court said there really weren’t ample alternatives – even though
there were alternatives b/c there is no way to duplicate putting this sign in
front of your house. people know that this is what those homeowners think.
• Good example of adequate substitutes.

Kovacs v. Cooper (1949)

Ordinance prohibited using loudspeaker on a public street. A blanket ban on sound
1) CN
2) Yes, peace and quiet, tranquility, traffic safety.
3) Yes, handing out leaflets, commercial, etc.
• This case is a great example of a CN restriction.

Hill v. Colorado (2000) p. 1245

Ordinance regulates speech within 100 ft of any healthcare facility. This law was
enacted to prevent abortion protestors from harassing women going into a
healthcare facility for abortion reasons. Also, can’t come within 8 ft of another
w/o their permission if you intend to hand a leaflet, protest them, counsel, etc.”
CN: on the face, CN says nothing about what speech can’t be, sign says
CB: healthcare facility which gives abortion, acute effort to get abortion at the
back door
Could go either way.
1) CB or CN
2) harassment, disturbance, interference, peace and quiet, etc.
3) speech and signs ok – leaflets – yes waive at 8 ft away and person can take or

B. Content Neutral Restrictions of Speech at Publicly Owned Property

Basically Two Places you can Speak From:
Threshold a. Privately Owned OR
question!!! i. Two ways to do this:
1. Permitted by the owner
Ask where speech is
occurring!! 2. Not permitted by the owner
ii. Property owner has the right to exclude trespassers.
If private don’t You virtually have an absolute right to preclude here.
have to do this iii. However, private property owner may also grant
analysis. permission.

b. Publicly (Government) Owned

i. Ex: courthouse, schools, parks, streets, post office,
libraries, beaches, airports, arenas, racetracks, etc.
ii. Permitted to exclude b/c this is an ownership
property interest

1. US v. Grace p. 1249
Don’t want displays on sidewalks surrounding S.
Ct. building. Court invalidated.
2. Cmwlth v Davis p. 1247
Said govt has same rights as private person to
3. Hague case changes this. p. 1247
Says govt owned property is different b/c it is:
i. held in trust for people
ii. Adverse Possession
iii. Easement


a. Traditional Public Forums [Narrowly Tailored for Significant Interest]
1. Traditional locations where people come together and talk
EX: parks, streets, sidewalks, beach (an airport is questionable,
a school no – though maybe a part of it – i.e., the auditorium)
2. To be traditional, must be longstanding.
LAF analysis will
depend on the b. Conversion to a “Designated” Public Forum
characterization. 1. Ex: library  can make it like a traditional public forum by asking
Who owns the
place is the
permission of director of library, who may then say, yes, you may
question. use Rm. 272.
3. When they do this, they have to open for all. Can’t pick and choose
who may come. It causes you to lose your property right to exclude.

c. Non-Public Forum [Reasonableness Standard – Low Deferential Review]
1. This is not open to the public at all.
a. Ex: Congress, White House, Pentagon, Military Bases,
Prisons, Hospitals, etc.
2. Restriction need only be reasonable.
a. See Krishna analysis.

Government tries to exclude on a content neutral basis via their property interest.
What we’re dealing with here, is those situations in which government makes a law that attempts
to exclude someone from using it for expressive purposes.
This is the basis for the concept of the public forum.

As a general proposition, if government tries to restrict speech at a traditional public forum, level
of review will likely be the same as if someone tries to speak from their front yard. This means
the same right to speak to 7 guys in front of Don Pepe’s as if you were speaking from your front
yard. What if the 7 guys were in a hospital room (desig. public forum) and you want to go in and
counsel of alcohol abuse and if govt tries to restrict their speech the Court here will likely apply
more deference to the government – b/c it is a little different – but still a lot of protection. What
about if giving out flowers and leaflets in an airport and government says no? If the airport is a
nonpublic forum – Court will apply a reasonableness standard – restriction need only be

US v. Grace (1983) p. 1249 TRADITIONAL PUBLIC FORUM

Federal statute prohibits any person to display on public sidewalk around S.
Ct. building any device designed to bring into public notice any party,
organization or movement. This is a traditional public forum 


1) Is the speech content based or content neutral?

a. Here, CN b/c bans anyone.
2) What is the government interest?
a. Must be narrowly tailored and significant
b. Here, peace and order b/c they didn’t want disruption of the Court.
i. Really not narrowly tailored b/c they sidewalk is HUGE. They
could have limited to a smaller area…
ii. This prohibition is too extensive.
3) Are there ample alternatives?
a. They could have limited to a smaller area.
b. Gives demonstrators no alternatives – they want to convey their
message to the S. Ct.

Krishna p. 1263 (1992) NON PUBLIC FORUM

A regulation prohibited repetitive solicitation of money and sale/distrib. of
merchandise at airport terminals.
Work through LAF…
1) Gov’t owned property
2) What class?
a. Arguing for traditional
i. People from all over the world are in and out, people
are talking to each other
b. Arguing that it is not
i. Designated since only portions are open to the public
(ex: not the gate)
ii. Court says that to be traditional it must be
1. This tells us that it is highly unlikely to apply to
new places.
2. Because traditional is defined as historical and
longstanding, LAF court will use is that it need
only need to satisfy a standard of
REASONABLESS (deferential level of review
where regulation is occurring on a non-public
forum). Thus, great power for government to

A good exam question: Can the Krishna’s go to Continental Airlines arena owned by the
government and hand out their leaflets?

3) Property that is Privately Owned but Opened to the Public

Ex: shopping mall, skating rink

Can the private property owner exclude from their private property
speakers or can the speaker go in and say they have a right to be there b/c
they’ve opened to the public.
• S. Ct. is all messed up. In NJ Court will treat as public.
• Leading case is Marsh v. Alabama. p. 1266

Celebration, FL owned by Disney, Inc. If they decide to eliminate free
speech – they can’t do it. So, sometimes private ownership rights get
subordinated to free speech.


1) Generally
a. Expression that consists solely of non-verbal actions.

b. The problem in this area is in determining WHEN non-verbal conduct becomes


Non-verbal conduct becomes – or has the potential to become speech when
the non-verbal conduct conveys a message or meaning which the target
audience will understand.

d. If government wants to regulate this – there must be a “good/weighty” reason

for limiting/regulating/prohibiting/punishing it.


Is it speech?

O’Brien (1968)
D and friends burned their draft cards on steps of courthouse. He was
arrested and indicted.
Free Speech Analysis:
1) Was it speech?
a. He burns his card but didn’t talk.
b. Argument for Yes:
i. At the time people knew persons were vehemently
opposed to the Vietnam War and other people at the
time were burning draft cards.
ii. The message was anti-war.
c. S. Ct. did not agree that it was speech – but treated it as
such for purposes of the opinion.
2) Where did it occur?
a. Speech occurred on a traditional public forum. Courthouse

O’Brien Test
LAF for Evaluating Restrictions on Symbolic Speech

Government Regulation is Sufficiently Justified If:

1) It is within the Constitutional power of the Government (Ex: police power);

2) It furthers an important or substantial Government interest (in controlling the conduct);

3) If the Government interest is unrelated to the suppression of free speech; AND

4) If the incidental restriction on alleged 1st A freedoms is not greater than is essential
to the furtherance of that interest.

Black armband was protected symbolic conduct b/c school was seeking to
restrict the anti-war message.

Texas v. Johnson (1989)

Johnson was charged with desecration of the US flag. HELD  Statute
violated the 1st A as applied to Johnson’s acts. Really content based b/c it
was punishing the message behind burning the flag. NOTE: This case
demonstrates the difference made by HOW the statute is constructed.

Barnes v. Glen Theatre, Inc. (1991)

Indiana’s public indecency statute prohibited any person to “appear in a
state of nudity in any public place.” State courts interpreted the statute
as requiring nude dancers in such estabs. to wear pasties and G-strings.
HELD  This was ok.


1) Generally
a. Nonverbal conduct here is money.

b. Solicitation of funds and payment is protected speech b/c when someone gives
you money for something they are saying “We support your cause.”

Village of Schaumberg Case (1980) p. 1323

Court invalidated an ordinance barring door-to-door or in-the-street solicitation by
charitable organizations that do not use at least 75% of their receipts for charitable
purposes. HELD  Solicitation of funds and payment is protected speech.

2) Campaign Finance Reform

a. Remember the distinction b/n a contribution and an expenditure or spending.
1. Contribution

2. Expenditure 
o Spending money on the campaign or for ad/communications.
o When you spend money you do it via two ways:
(a) spending your own or
(b) an outsider spends the money toward a cause candidate
may be supporting. When the outsider spends it is soft
money b/c it goes for the cause and not to the candidate.

b. Government says these expenditures are a problem b/c the political process is
getting corrupted, abused, the integrity of the system is being undermined.
The little person’s voice is not being heard. Your ability to get into office is
virtually impossible unless you have millions of dollars.

c. The CFR is designed to eliminate people buying elective office – but to give all a
voice in the political process.

d. The problem with this, in furthering these good sounding ideas, if you want to
spend $70M to get elected you can’t. T/f it is suppressing your speech.

e. The balancing we’re going to look at with CFR is the balancing of two good
reasons: integrity/equality of elections v. free speech.

Buckley v. Valeo (1976) p. 1324

QUESTION 1: Are we in the area of speech?
• CN Law
• The money is protected speech b/c it is empowering you to express your
opinion, to educate people, etc.
• Court says this is high value speech b/c it is political speech.
• Court says these type of restrictions will get exacting scrutiny.
o This means Court will now look at McCain-Feingold and say:
a. The 1st A applies.
b. They’ll look at it with exacting review.
QUESTION 2: Contribution Limit
• Upheld. It does not offend the 1st A b/c:
o The interest that outweighed protecting free speech was
QUESTION 3: Spending Limits (Candidates & Outsiders)
• Invalid and unconstitutional.
• Reason to curtail spending by candidate evens the playing field.
Conversely, they would argue they will represent “people” b/c they aren’t in
anyone’s pocket.


1) Generally
a. Nonverbal conduct here is association.

b. NOTE  Right of association for expressive purposes is NOT the same as the
right of intimate association which in rooted in the DPC.

c. If the group has not been organized for an expressive purpose – the 1st
Amendment does NOT protect that group (but the 14th A might).

Has the organization been formed as an expressive association?

Roberts v. Jaycees (1984)

Jaycees were excluding women from “Regular” membership – but permitted
them to be “Associate” members (old men & women). Associate members
had no voting rights, etc. Basically second class citizens. Action brought
based on MN Human Rights Act which was designed to eliminate
discrimination. Club defends by saying they have the right to free
association pursuant to the 1st A – this is their affirmative defense.
Court said they were an expressive association – but that that right is not

NOTE: Women were treated differently than gays by the US S. Ct.

BSA v. Dale (2000)

Dale’s position as an adult scoutmaster in the Boy Scouts was revoked when
the Boy Scouts learned he was an avowed homosexual and gay rights
activist. New Jersey law prohibited discrimination on the basis of sexual
orientation. NJ court interpreted this as prohibiting the BSA from
revoking Dale’s position as scoutmaster. HELD  This application violated
the BSA’s 1st A right of expressive association.
NOTE: Boy Scouts are a private actor – that’s why they can do this!

LAF for Determining if Exclusion Policy of Expressive Organization is Constitutional

1) Does the group engage in expressive association?

a. If no  No 1st A issue (but maybe a DPC issue)
b. If yes  . . .
NOTE: this is where the arguing comes in – determining whether something is an
expressive association. Sometimes takes gymnastics type arguing.

2) Does the forced inclusion of the unwanted person significantly

burden the group’s ability to advocate its viewpoint?
a. If yes  . . .

3) Is there a compelling government reason to invalidate the exclusion?

a. Must be unrelated to the suppression of ideas.

4) No less restrictive alternative available.


1) Generally
a. This is a “grey area” that is neither verbal nor non-verbal conduct.

b. This is the right not to be compelled by the government to deliver a certain

message, associate with a group whom you don’t agree, etc.
(Ex: license plate, pledge of allegiance, taxes, warning labels, dues and fees)

LAF for Determining the Constitutionality of Government Action that intends to

Compel Affirmation, Expression or Association

1) Does government compel speech?

a. If yes 

2) Is the government interest sufficiently compelling?

Again, really a balancing test.

Barnette (1943)
All students in public school at the beginning of each day are required to salute
the flag. HELD  Unconstitutional to require children in public school to salute
and pledge allegiance to US flag.
1) Is government compelling speech?
a. Yes b/c public school.
2) Sufficiently compelling?
a. Patriotism, sense of identity
b. Person not wanting to follow argue Autonomy/liberty interest to
believe and to not have other people label you.

Pruneyard Shopping Ctr. (1980)

CA interpreted its state constitution as guaranteeing a right of access to a
shopping center. HELD  This did not violate a shopping center owner’s federal
right of free speech, nor his right not to have his property taken w/o just
compensation. Shopping center owner must allow premises to be used as a forum
for speech for others.

Hurley/St. Patrick’s Day Parade (1995)

GLIB was refused a spot in the parade and they sued under the Mass. Anti-
Discrimination statute. Thus, we have compelled speech problem with respect to
Veteran’s Council and freedom of expressive association problem. Thus, we have
two totally separate free speech defenses. HELD  Application of the Mass. law
NOTE: This is another case where gays and lesbians lose. Each time the
government interest is not good enough to outweigh he competing interest.

Bd. of Regents v. Southworth (2000)

WI Univers. required all students to pay an activity fee – part of which was
allocated to expressive groups on campus. Challengers didn’t want their money to
support views which they didn’t believe in. HELD  Fee was viewpoint neutral and
t/f constitutional.

NOTE: Government interest in preserving educational atmosphere is an important

factor in determining extent of protection speech gets in a school setting!!!



1) Generally
a. A separate clause in the 1st A – some say different than free speech b/c
otherwise would not be there.

b. Purpose of freedom of press is to put a check and balance on government and

to keep citizens informed.

c. As a general proposition – press has no greater access than public. But, then
there is law and there is reality. (Ex: cop knows reporter)

2) Two Types of Press

a. Offensive [Right to Gather]
 News gathering and right to information.
(Ex: Does a reporter have access the general public does not -- like taking
pictures at a crime scene?)

b. Defensive [Right to Access Government Information]

 Privileges and special protections from the law.


1) Generally
a. Protecting Confidential Sources
 1st A freedom of press does not exempt a reporter from disclosing to a
grand jury information that he has received from confidential sources b/c
the public interest in law enforcement and in ensuring effective grand jury
proceedings is sufficient to override the burden on news gathering.
(Branzburg v. Hayes) 1972.

b. Shield Laws
 Most states now have these which give reporters protection from having to
reveal confidential sources.
 Enacted due to concern for need of info, fear of chill, government


1) Generally
a. Restricted Environments
• Constitution does not require a state to grant the press special access to
otherwise restricted areas.

Pell v. Procunier (1974)

Jail said can’t have face to face reporter interviews. Press said interfering
with access to information and right to gather news. This is offensive use of
free press clause. COURT SAYS  Nope. You only have the same rights
public has.


Houchins v. KQED (1978)

Suicide of prisoner and press wanted to photo. COURT SAYS  Nope, but there
can’t be a complete ban.

b. Access to Criminal Trials [Special Rule]

• The media does not have a constitutionally protected right to attend
criminal trials. They may be closed out if there is an overriding
government interest being served by a closed trial that cannot be served
by less restrictive means. (Richmond Newspapers v. VA)


1) Generally
a. The freedom of religion is protected by two clauses in the 1st Amendment.
• Establishment Clause 
Looks to prevent government endorsed or supported religion.
• Free Exercise Clause 
Looks to prevent government from burdening person’s rights to
believe in, profess or practice their religion.

b. Like free speech – part of the difficulty is in determining what is religion. The
difficulty arises when you have a situation where it looks, sounds and feels like
a moral code but is not an established religion. Court generally gives a very
Exam Tip
expansive reading, however.
Religious • Belief in a Supreme Being.
speech on exam • Belief in a transcendental value
is two issues:
• A moral code
• A world view accounting for the role of the universe
Free Exercise • Sacred rituals
• Worship and prayer
• A sacred text
• Membership in a social organization

c. Religious belief need not be fundamentally religious (Seeger).

Seeger, on his draft form, as to which he claimed he was a conscientious objector,
wanted to leave the question as to the Supreme Being he believed in open. He
stated the values he believed in w/o a belief in God.
HELD  That was a religion for giving him conscientious objection status.

d. Applies to both Congress and States (via 14th A DPC).

e. Note that there is always a tension b/n the FE and EC – but the FEC tends

Abington Sch. Dist. (1963)

At the beginning of each school day 10 Bible versus must be read.
HELD  Court invalidated. J. Stewart dissented demonstrates the tension
perfectly, saying that government saying can’t pray violated FEC.

2) Two Prevailing Views on how Government and Church should Interact
a. Modified Separationism
• Belief that agnostics and atheists have a right to be considered when
laws are made.
• A limited assistance will be tolerated.
• Cannot aid religion.
b. Non-Preferentialism (Scalia)
• Government may not give a preference to one religion over another –
BUT – they can give a preference to religion over no religion.
• Does not separate religion from government – rather that government
need be fair and neutral in how it aides religion.
(Also strict separationism, government sponsored [Islam], government forbidden
[communism] – but not an issue in America]


1) Is the activity a religion?

2) Does law violate the Religion Clauses?

Which test the Court uses depends.
a. Lemon Test (has been mocked by Scalia and others, but still good law)
• In order for a law to survive against an EC challenge, it must:
1. Have a secular purpose;

2. The effect of the law must neither advance nor inhibit religion;

3. The law cannot foster an excessive entanglement with religion.

If law fails any one of the three prongs  It FAILS.

b. Endorsement Test (J. O’Connor’s Test/A variation of the Lemon Test)

• The Government action must not:
1. Be excessively entangled with religion;

2. On purpose or effect convey a message of endorsement or

disapproval of religion.

c. Anti-Coercion Test (Lee v. Weisman)

1. If government coerces someone to do something of a religious nature
– unconstitutional as a violation of the EC.
(Ex: prayer at public school graduation (yes), prayer at football
game over loudspeaker (yes))

Lee v. Weisman (1992)

The Court held that at a school ceremony, a prayer will be found to be in
violation of the Establishment Clause, at least where school officials can
fairly be said to be sponsoring the religious message. The Court also
established that even a completely non-denominational school prayer will
violate the Establishment Clause if it is state-sponsored.
 this case reminds us of the importance of protecting minority’s rights

Sante Fe Independent School District v. Doe (2000)

Court held that it was unconstitutional for “invocations” to be said before
football games, even though it was decided by student run elections.
 This shows that the anti-coercion prong is actually less-protective of
mixing of church and state.

Lynch v. Donnelly (1984)

The Court had to consider whether the nativity-scene displayed in public
space violated the Establishment Clause. The Court held that the nativity
scene display did not violate any of the three traditional tests, especially
when considered “in the context of the Christmas season”. There was a
secular purpose.