QUESTION #1 (DUE PROCESS)

● PROCEDURAL PROCESS
○ Definition: Constraint on how the government (either state or federal) regulates a life, liberty or property
interest; implied constitutional requirement (in both the 5th Amendment and 14th Amendment Due
Process Clauses) that the government follow basic rules of fairness in regulating these interests.
○ Elements of a Procedural Due Process Analysis:
■ Must be governmental action
■ Must be a Life, Liberty or Property interest affected adversely by the governmental action
■ If both steps one and two have occurred, the issue becomes What Process is Due?
■ At a minimum there must be Notice and an Opportunity to be Heard
■ How much process is due depends upon the magnitude of the life, liberty or property interest at
stake vs. the administrative burden on the government to provide adequate notice and a hearing.
Often, the real issue pertains to what kind of hearing is necessary before the termination of
benefits
■ The essential balancing test requires a court to weigh:
a. the magnitude of the plaintiff’s life, liberty or property interest; and
b. the risk of its erroneous deprivation by the government; against
c. the administrative burdens and costs imposed on the government by a substitute or
revised method
○ If the plaintiff’s interests outweigh the administrative burdens that would be imposed on the government,
then the government must, at a minimum afford the plaintiff formal notice and some form of hearing
before termination of benefits. The extent of the pre-termination hearing depends upon the magnitude of
the interests in life, liberty or property at stake, as well as the risk of their erroneous deprivation in the
absence of a governmental administrative process that lacks a meaningful pre-termination hearing.

● CORE VALUES OF FEDERALISM

○ 1. Tyranny: Applicable to either the states or the federal government. States might complain that the
federal government, most likely either Congress or the unelected federal judiciary are trying to displace
state or local authority. Conversely, in some cases the federal government might perceive that the states
are infringing upon the individual rights and liberties of their citizens/residents in contravention of either
federal law and/or the federal constitution.
○ 2. Efficiency: Applicable to either the states or the federal government. The federal government would
invoke efficiency by stressing the need for uniform national regulation. Conversely, the states and local
governmental authorities would argue that local regulations are more efficient than national ones given
the different needs and objectives of different locales.
○ 3. Legitimacy: Applicable to either the states or the federal government. The federal government would
invoke legitimacy as a means of justifying federal regulation of local matters that affect the nation in
general. In particular, the Court might use a legitimacy argument pertinent to the rationale for federal
judicial review in cases where the local political process is inadequate or local democratic majorities have
tyrannized the rights and liberties of local citizens
■ The easier argument for most students to make is the one most states and local governmental
authorities make in federalism cases: the legitimacy of local police powers. States and local
governmental authorities might complain that a federal court decision or action by the federal
government delegitimizes state and/or local authority to exercise implied 10 th Amendment police
powers to promote public health, safety, morals, or welfare
○ 4. Laboratories of Democracy: Applicable only to the states or local governmental authority. Only
states or local governmental authorities can make this argument which emphasizes the importance of
 experimentation on the state and local level and the concern that either the federal government or the
unelected federal judiciary could infringe upon the reserved governmental authority of states and local
governmental entities pursuant to the 10th Amendment to regulate public health, safety, morals, or welfare
in ways considered most beneficial to local citizens and residents.
● SUBSTANTIVE DUE PROCESS: (STRICT SCRUTINY)
○ Whereas procedural due process involves how government exercises its regulatory authority, substantive
due process focuses upon whether the government has the authority or the power to regulate the subject in
question.
○ As with procedural due process where the Court reads into the Due Process Clauses of the 5th and 14th
Amendments a procedural component, the Court essentially reads into the Due Process Clause of the
14th Amendment (in cases involving state and local governments) or the 5th Amendment (in cases
involving the federal government) a substantive component.
○ Substantive due process requires the Court to look beyond the mere form of a law and into its operative
effects.
■ There are two kinds of substantive due process you will study this semester:
1. economic substantive due process, which involves governmental regulation of private
economic activity; and
2. substantive process concerning implied rights of privacy (family matters, sexual privacy,
procreation, and reproductive rights (including birth control and abortion); and the right
to determine the circumstances of one’s death.
● THREE DIFFERENT ALTERNATIVE APPROACHES TO DETERMINE THE EXISTENCE OF AN
IMPLIED FUNDAMENTAL RIGHT:
○ Decisional privacy offers individuals the freedom to act and to make important decisions about how they
live their lives, without unjustifiable interference from other individuals or the state
■ Penumbral Approach
a. This approach reads between the lines of the 1st, 3rd, 4 th and 5th Amendments to
determine how these amendments as a whole create an implied fundamental right of
privacy.
b. 1st Am. (decisional privacy). Privacy implied from the 1st Am. clauses pertaining to
freedom of expression, freedom of religion and freedom of association. As a whole,
these three clauses within the 1st Am. imply a right of intimate association in that they
create a zone of decisional privacy.
c. 3rd Am. (both decisional privacy and spatial privacy). Both decisional and spatial
privacy implied from the 3rd Am. guarantee that the government will not force people to
quarter soldiers in their home without their personal consent. (Intrusion by the
government into individuals’ home without your consent)
d. 4th Am. (spatial privacy). The prohibition against unreasonable search and seizure by
government of a person’s home, office, papers and personal effects implies a zone of
spatial privacy against arbitrary and unreasonable governmental interference.
e. 5th Am. (decisional privacy). This constitutional protection from governmental
compulsion of incriminatory statements/testimonial evidence from people without their
consent implies the decisional privacy to keep private certain personal information and
thoughts.
■ Ninth Amendment in Conjunction with either the Penumbral Approach or Due Process
Clause of 14th/5th Am.
a. This is really a two-step analytical process:
 ○ 1) explain the meaning of the 9th Am., which essentially states that simply
because a right is not enumerated in the Bill of Rights does not mean that it is not
fundamental; and
○ 2) an unenumerated implied fundamental right is essentially one which is
“implicit in the concept of ordered liberty” (see Palko v. Connecticut (1937)).
The second step really asks the court to consider whether the asserted implied
fundamental right is one that would fit within the American historical tradition of
recognized unenumerated rights.
b. The Ninth Amendment by itself is not sufficient to make this argument. One must
always pair the 9th Amendment with either the penumbral approach or with the Due
Process approach. When paired with the penumbral approach, it functions as an
exclamation point and a point of emphasis. When paired with the Due Process approach,
it reinforces the inherent flexibility of the concept of substantive due process and its
evolving content.
■ Due Process Approach
a. This also is really a two-step analytical process:
1. characterize the liberty interest in issue; and
2. consider whether the asserted liberty interest or right is within the American
historical tradition such that over time it has been recognized as a fundamental
right
b. How one characterizes the liberty interest/right in issue is of significant importance;
plaintiffs will characterize the asserted liberty interest/right in broad terms, whereas the
government will characterize it narrowly so that it is less about an abstract liberty
interest/right and more about conduct, which, in constitutional law, the government has
broad discretion to regulate. If the government characterizes something as involving
mostly conduct, it seeks to use its regulatory powers in a broad way. Conversely,
plaintiffs will de-emphasize the conduct in issue and emphasize abstract privacy interests
and issues.
● STRICT SCRUTINY:
○ The government has the burden of proving that it used the least restrictive means available to accomplish
a compelling governmental interest
○ Compelling governmental interest is one of very high importance (note this is a more significant interest
than merely a rational or legitimate basis)
○ The least restrictive means available refers to the very precise connection that must exist between the
government’s compelling interest and the means its employs to attain its compelling interest. (note the
connection between legislative means and ends for strict scrutiny requires a near perfect fit between the
compelling governmental interest and the method(s) the government uses to attain its compelling
interest). In essence, the government must demonstrate that it could not use less
discriminatory/restrictive means pursuant to regulate the right or liberty interest in issue.
○ Therefore, make sure to use the more precise term “the least restrictive means available” when applying
strict scrutiny. (instead of “narrowly tailored”)
● ECONOMIC SUBSTANTIVE DUE PROCESS: (RATIONAL BASIS)
○ The modern standard of review for economic substantive due process is the highly deferential rational
basis standard, pursuant to which the government will prevail so long as it has a rational or legitimate
basis for its regulation, and the government attained its rational or legitimate objective by reasonable
means.
 ■ What this means is that the plaintiff has the burden of proving that the governmental
regulation is both irrational or illegitimate and that the government regulation does not bear a
reasonable connection to the government’s objective(s).
■ Unlike the standard of review for strict scrutiny (government has the burden), the plaintiff has the
burden of proof.
○ The connection between legislative means and ends for rational basis in modern economic
substantive due process cases can be very loose.
○ The core values of federalism pertaining to the legitimacy of state/local police powers and the laboratories
of democracy are particularly relevant in a constitutional analysis of state regulations of economic and
non-fundamental rights and activities.
● PRIVACY POLICIES
○ Intimacy: Intimacy pertains to emotions and thoughts formed within one’s mind and heart. Often, the
personal choices one makes in terms of relationships, family issues, sexual behavior and, if possible,
determining the circumstances of one’s death all emanate from and reflect the deeply personal (i.e.
intimate) feelings, emotions and thoughts one forms throughout life. The implied fundamental right of
privacy therefore embodies the policy of intimacy.
○ Autonomy: In a democratic republic in which governmental authority emanates from the people and in
which the consent of the governed is a paramount democratic principle, the policy of autonomy is a
logical imperative that helps safeguard the freedom of individuals to form their own intimate
thoughts and feelings absent government compulsion.
■ In the assigned cases involving various aspects of the implied fundamental constitutional right of
privacy look for instances where government regulations may have the effect of infringing upon
the autonomy of persons in ways that impair their emotional, spiritual, intellectual, and physical
intimacy.
○ Integrity (or Personal Dignity): When government interferes with the intimate choices of persons, it
not only infringes upon their autonomy, but it also disrespects the integrity of their personhood.
■ Look for this privacy, as well as intimacy and autonomy, when reading the assigned cases in this
segment of the course.
● The government will not be so concerned with making privacy policy arguments but instead focus on relevant
core values of federalism such as tyranny of the unelected federal judiciary trying to displace state
regulatory authority; efficiency; the legitimacy of local police powers to promote public health, safety,
morals, and welfare; and the laboratories of democracy

QUESTION #2 (EQUAL PROTECTION)

● Definition of Equal Protection:
○ Equal Protection means the government – state or federal – cannot discriminate between similarly
situated persons or groups for arbitrary reasons.
○ Unlike substantive due process analysis, which requires the Court to assess whether the government can
regulate substantive matters, equal protection analysis involves the Court in an assessment of the type of
legislative classification the government uses to regulate persons or groups.
○ It is possible, for example, for the government to have the constitutional power to regulate a particular
substantive matter, but still violate the concept of equal protection if the manner in which it regulates the
substantive matter involves an impermissible classification of persons or groups.
● Although in every legislative classification the government differentiates between persons or groups,
classifications which are arbitrary and unreasonable are unconstitutional. As in substantive due process analysis,
there are multiple standards of review, depending upon whether there is a socio-economic regulation in issue,
whether there is a fundamental right in issue, or whether the classification is either inherently suspect or quasi-
inherently suspect.
● Classifications:
● Equal protection analysis always must begin by identifying how the government is distinguishing among people.
Sometimes this is clear; sometimes it is the focus of the litigation.
● There are two basic ways of establishing a classification.
○ (1) Facially Obvious Classification: One is where the classification exists on the face of the law—that is,
where the law in its very terms draws a distinction among people based on a particular characteristic.
■ For example, a law that prohibits blacks from serving on juries is an obvious facial racial
classification
■ Likewise, a law that says that only those 16 and older can have drivers’ licenses is obviously a
facial classification.
○ (2) Facially Neutral Classification: sometimes laws are facially neutral, but there is a discriminatory
impact to the law or discriminatory effects from its administration.
■ For instance, a law that requires that all police officers be at least 5′10 tall, and 150 pounds is, on
its face, only a height and weight classification.
■ Statistics, however, show that over 40 percent of men but only 2 percent of women will meet this
requirement.
■ The result is that the law has a discriminatory impact against women in hiring for the police force
● The Supreme Court has made it clear that discriminatory impact is insufficient to prove a racial or gender
classification.
○ If a law is facially neutral, demonstrating a race or gender classification requires proof that there is a
discriminatory purpose behind the law
○ Thus, women challenging the height and weight requirements for the police force must show that
the government’s purpose was to discriminate based on gender.
● In other words, there are two alternative ways of proving the existence of a classification:
○ (1) showing that it exists on the face of the law or
○ (2) demonstrating that a facially neutral law has a discriminatory impact and a discriminatory
purpose.
● The Different Standards of Review:
● In evaluating the constitutionality of a law, the Court evaluates both the law’s ends and its means:
○ For strict scrutiny, the end must be deemed compelling for the law to be upheld;
○ For intermediate scrutiny, the end has to be regarded as important; and
○ For the rational basis test, there just has to be a legitimate purpose.
○ Rational Basis Test – applicable to socio-economic regulations, governmental classifications that do not
affect fundamental rights, and governmental classifications that do not affect either race or gender. The
term governmental classification includes both legislative classifications and those by other political
branches.
○ The government has a legitimate purpose if it advances a traditional “policy” purpose: protecting safety,
public health, or public morals. 
■ Under this deferential standard of review, courts do not assess legislative motives; any
conceivable basis for the socio-economic regulation is permissible so long as the basis is rational
or legitimate. Nor must courts ascertain the actual purpose of the legislature, as there are often
multiple purposes. So long as their at least one conceivable rational or legitimate purpose, and a
reasonable connection exists between that purpose and the governmental action, the government
will usually prevail under the rational basis standard of review, even of the law in question is
substantially underinclusive because it is permissible for the government to take an incremental
approach towards resolving a socio-economic problem. Accordingly, few laws fail the rational
basis test.
○ Intermediate Scrutiny – only applicable in the context of equal protection to gender discrimination. The
government has the burden of proving that it has an important purpose for its classification, and that it has
used means substantially related to its important objective.
 ○Strict Scrutiny:
■ The government has the burden of proving that it used the least restrictive means available to
accomplish a compelling governmental interest
■ Compelling governmental interest is one of very high importance (note this is a more significant
interest than merely a rational or legitimate basis)
■ The least restrictive means available refers to the very precise connection that must exist between
the government’s compelling interest and the means its employs to attain its compelling interest.
(note the connection between legislative means and ends for strict scrutiny requires a near perfect
fit between the compelling governmental interest and the method(s) the government uses to attain
its compelling interest). Essentially, the government must demonstrate that it could not use less
discriminatory/restrictive means pursuant to regulate the right or liberty interest in issue.
○ Often the Court will get a bit sloppy with its language and use the term “narrowly tailored” to describe
strict scrutiny, but this is imprecise and confusing, for the term “narrowly tailored” really best describes
an intermediate standard of review the Court uses to assess gender discrimination cases and content-
neutral time, place and manner restriction of 1st Am. expression (see cases later in semester). Therefore,
make sure to use the more precise term “the least restrictive means available” when applying strict
scrutiny.
○ If the Court concludes that there is neither a suspect classification nor a fundamental right – either express
or implied – at issue, then the applicable standard of review reverts to the same rational basis standard
used in socio-economic regulation cases.
● THE ELEMENTS OF A SUSPECT CLASSIFICATION:
○ 1) Immutable Characteristic: race is always an immutable characteristic because one cannot change
one’s race
○ 2) History of Purposeful Discrimination: A plaintiff needs to show that historically the government has
purposefully discriminated against persons who share the plaintiff’s race
○ 3) Discrete and Insular Minority Inadequately Protected by the Political Process: the plaintiff must
demonstrate that the political process offers little or no protection for the particular racial minority to
which the plaintiff belongs, thus necessitating intervention by the unelected federal judiciary to prevent
the relevant democratic majority from tyrannizing the plaintiff because of the plaintiff’s race
○ 4) Discriminatory Intent: A plaintiff must demonstrate that the government acted in a discriminatory
manner because of racial animus and not despite it. There must be intentional racial discrimination and
not merely incidental discrimination. Further, a plaintiff cannot prove the existence of discriminatory
intent from discriminatory/disparate impact or effect alone.
○ 5) Discriminatory Effect (also referred to as disparate effect): In addition to proving discriminatory
intent, the plaintiff must prove a discriminatory effect resulted from the governmental practice or
legislative action. Note – there must be both discriminatory intent and effect to meet the prima facie
elements of a constitutional equal protection violation based on an assertion that the governmental
practice or law created a suspect classification based upon race.
● STRICT SCRUTINY FOR RACE:
○ The government has the burden of proving that it used the least restrictive means available to accomplish
a compelling governmental interest
○ Therefore, make sure to use the more precise term “the least restrictive means available” when applying
strict scrutiny.
○ If the Court concludes that there is not a suspect classification at issue, then the applicable standard of
review reverts to the same rational basis standard used in socio-economic regulation cases.
● NEUTRALITY:
○ Underlying principle of most equal protection cases: Neutrality
 ○ The Equal Protection Clause of the 14th Amendment and the 5th Amendment (implied by that
amendment’s Due Process Clause) exist, in large part, to ensure that the government does not play
favorites and that everyone is equal under the law.
○ Equal operation of the law is the essence of a constitutional democracy in which the rule of law exists to
both protect individual rights and liberties from the tyranny of democratic majorities and to limit the
arbitrary and unreasonable exercise of governmental authority.
● THE SPECIAL CASE OF AFFIRMATIVE ACTION:
○ Whereas normally, the plaintiff must demonstrate the existence of all five criteria of a suspect
classification to garner strict scrutiny in an Equal Protection lawsuit, this is not necessary in the very
specific context of affirmative action where often the plaintiff is neither a member of a group that in
the past has been the victim of purposeful discrimination. Nor is the plaintiff a member of a
discrete and insular minority inadequately protected by the political process.
○ There is a fundamental difference between the use of race for purposes of exclusion
(malignant/pernicious) and racially conscious measures intended to promote inclusion.
○ It also relevant to note that the 14th Am. protects persons rather than groups.
○ One of the main problems with any racial classification is that it might not take into consideration the
individual characteristics of a person and instead bestow benefits or burdens based upon racial stereotypes
and other factors that have little or nothing to do with an individual person’s merit or personal
characteristics.
○ Racial classifications based upon stereotypes stigmatize those adversely affected and subvert the essential
premise that ours is a constitutional system in which the equal operation of the laws protects individual
rights and liberties form the tyranny of democratic majorities and arbitrary governmental authority.
● It is permissible for government to redress the vestiges of past societal discrimination (de facto discrimination), as
well as past discrimination that was legally mandated (de jure discrimination), though it is, at times and
depending upon the context, more difficult for the government to prove that the former constitutes a compelling
purpose than the latter.
○ IN OTHER WORDS, it is harder for the government to prove that they had a compelling interest
(reasonable justification) for past discrimination (de facto), such as slavery, in comparison to legally
mandated discrimination (de jure), such as preventing people of color into certain businesses, hotels
or restaurants.
● Racial Quotas are NEVER Permissible:
○ Another pivotal concern in affirmative action cases is whether the government used a racial quota or
some other race conscious means in its decision making that did not necessarily take into consideration
the individual merits or characteristics of the person. Racial quotas or other measures that have the
practical effect of a quota never satisfy the least restrictive means prong of strict scrutiny.
● Equal Protection: Gender Discrimination: (INTERMEDIATE SCRUTINY)
○ As with race discrimination, gender discrimination violates the concept of equal protection of the laws
and often embodies pernicious stereotypes and creates stigmas.
■ Note that while women often have suffered gender discrimination, men, too, can be victims of it.
○ Government cannot create classifications that discriminate based on gender without an important
reason for the classification, and the classification must bear a close and substantial relationship to
the important governmental objective.
■ Though not as stringent as strict scrutiny, the applicable standard of review, intermediate
scrutiny, places the burden on the government to demonstrate the constitutionality of its
classification. Yet, intermediate scrutiny is more searching than rational basis.
○ It also requires the plaintiff to prove both discriminatory intent and discriminatory impact/effect.
 ○ Discriminatory Intent: A plaintiff must demonstrate that the government acted in a discriminatory
manner because it was reasonably foreseeable that there would be adverse consequences based on gender
and not despite this fact. There must be intentional gender discrimination and not merely incidental
discrimination. Further, a plaintiff cannot prove the existence of discriminatory intent from
discriminatory/disparate impact or effect alone.
○ Discriminatory Effect (also referred to as disparate effect): In addition to proving discriminatory intent,
the plaintiff must prove a discriminatory effect resulted from the governmental practice or legislative
action. Note – there must be both discriminatory intent and effect to meet the prima facie elements of a
constitutional equal protection violation based on an assertion that the governmental practice or law
created a classification based upon gender.
○ If a plaintiff is unable to prove both discriminatory intent and discriminatory effect, then the
appropriate standard of review is the rational basis test.

QUESTION #3 (FREE EXPRESSION)

● Overview of Analysis
○ Freedom of expression encompasses both freedom of speech and freedom of the press, both of which are
express fundamental rights as set forth in the First Amendment. More precisely, their protection from
unconstitutional governmental authority is made applicable to the states through the Due Process Clause
of the 14th Am.
● KEY POLICIES
○ Self-governance
■ In a democratic public wherein constitutional limits exist, in part, to reinforce the notion of
popular sovereignty and that government derives from the consent of the governed, this policy
underscores the significance of free expression as a means of informing the populace about
important governmental affairs and public policies.
■ Freedom of speech is crucial in a democracy: open discussion of candidates is essential for voters
to make informed selections in elections; it is through speech that people can influence their
government’s choice of policies; public officials are held accountable through criticisms that can
pave the way for their replacement.
■ Free speech serves in checking the abuse of power by public officials and said that through
speech voters retain “a veto power to be employed when the decisions of officials pass certain
bounds.”
○ Discovering Truth
■ Through the relatively free and robust exchange of ideas an informed populace theoretically can
discover the truth about matters of public interest.
■ The argument is that truth is most likely to emerge from the clash of ideas.
■ The marketplace of ideas may be terribly flawed, but allowing the government to decide what is
true and right and suppress all else is much worse
○ Advancing Autonomy
■ In a constitutional democracy it is essential that people have the freedom to think for themselves
and that neither their thoughts nor their expression be compelled by and from the government.
■ Otherwise, the concept of popular sovereignty becomes illusory, and the notion of a constitutional
system marked by limited governmental authority to protect individual rights and liberties would
be similarly illusory.
 ○ Promoting Tolerance
■ Given the diversity of people and ideas in a democratic republic, it is essential that free and
robust communication occur to not only facilitate the spread of knowledge but also to allow
people to better understand and appreciate each other’s views even if they disagree with each
other.
■ The claim is that tolerance is a desirable, if not essential, value and that protecting unpopular or
distasteful speech in itself is an act of tolerance
○ The Market Place of Ideas
■ This metaphor assumes that in a democratic republic that derives its legitimacy from the people
themselves that it is essential for there to be a robust exchange of ideas as a means of promoting
truth, democratic values, and citizenship. Accordingly, there should emerge a competition of
sorts between various ideas, one in which the government allows for the best ideas to take hold
and refrains from intervention through censorship and other means of skewing debates so as to
limit the expression of certain ideas for the benefit of others. Ultimately, the nation benefits from
largely untrammeled access to a diversity of ideas and viewpoints so that the people themselves
from who governmental authority emanates can decide on their own what is in their best interest
and that of the nation.
■ One drawback to this policy, however, is that it does not account for the role of wealth and
political access in the dissemination of ideas. It is entirely possible that those with the most
access to the media and the most economic leverage may, in fact, distort the market place of ideas
and thus render this idealistic policy unrealistic in a modern democracy marked by economic
inequality and increased distinctions based on class. Consider these drawbacks when assessing
the utility of this policy in analysis of free expression issues.
○ Neutrality
■ The government should remain neutral in matters of expression by private persons and groups so
as not to distort the marketplace of ideas and censor messages of which it disproves. Free
(relatively) and robust expression is essential to preservation of a constitutional democracy;
government neutrality in matters of private (as opposed to public/governmental) expression is a
prerequisite for an informed and enlightened democratic society, one that can exercise in a
meaningful way its civic obligations.
○ You should apply as many of these policies as are relevant to your analysis of issues pertaining to
freedom expression in addition to the relevant core values of federalism.
● Other Pertinent Doctrines that Inform Free Expression Analysis
○ The Emotional Aspect of Expression (The Primary Effects of Speech)
■ There is a distinction between the primary effects of speech and the secondary ones. The
emotional content or aspect of expression often receives maximal First Amendment protection
because most forms of expression are intended to elicit an emotion, even one that might make
listeners/readers angry. However, the government cannot censure expression simply because it
infuriates people, for doing so would amount to impermissible censorship and violate the
underlying 1st Am. principle that the government should remain neutral in matters of substantive
expression.
○ Secondary Effects
■ While the government cannot regulate the primary effects of expression based upon its content, it
can constitutionally regulate the secondary effects of expression because in so doing, the
government is essentially regulating conduct and not expression. Thus, the government can
regulate the violence likely to result from certain kinds of expression. Theoretically,
governmental regulation of secondary effects arising from expression such as violence or
 imminent bodily or emotional harm is not a restriction upon the content of expression but rather a
regulation of conduct arising from that expression. Note that this a very narrow distinction and
one that helps explain certain categories of unprotected expression such as fighting words,
defamation, and expression likely to incite imminent unlawful action.
● The Distinction between Content-Based Restrictions of Expression and Content-Neutral Time, Place, and
Manner Restrictions
○ Content-Based Restrictions
■ These are regulations pursuant to which the government seeks to restrict the substantive aspects
of expression based on its content, or the message of the expression. Often, such regulations pose
a problem of government neutrality and may reflect impermissible viewpoint discrimination by
the government, which must remain neutral in matters of expression in accord with policies set
forth above.
○ Content-Neutral Restrictions
■ These are governmental regulations that ostensibly do not discriminate based upon the viewpoint
of the expression (the message) but rather seek to regulate matters unrelated to the content of
expression, and thus are presumed to neutral towards the substantive aspects of expression.
Content-neutral restrictions of expression instead regulate the time, place and/or manner of
expression and therefore often regulate conduct unrelated to expressive content. Examples of
content-neutral restrictions include regulations about when expression can occur (the time);
where it can occur (place); and/or manner (signage, volume, etc.)
● Standards of Review:
○ If the government regulated the content of expression, i.e. the message, the regulation is a content-based
one that the Court will review using strict scrutiny. Thus, the government has the burden of proving that
its content-based regulation of expression (speech or press) is pursuant to a compelling interest and that
the regulation is the least restrictive means available. The rationale for using strict scrutiny to assess the
constitutionality of content-based restrictions of expression is to ensure that the government is not
arbitrarily engaging in discrimination because of its disagreement with certain ideas or that the
government is trying to censure expression.
○ Conversely, the Court uses a special form of intermediate scrutiny if an issue arises as to the
constitutionality of a content-neutral time, place and/or manner restriction.
■ Pursuant to this slightly more deferential standard of review, the government has the
burden of proving:
1. the regulation is unrelated to the content of expression (time, place or manner);
2. the existence of a substantial governmental interest;
3. that is sufficiently narrowly tailored such that it imposes only an incidental effect upon
expression; and
4. that there are alternative modes of communication available other than that which the
government seeks to restrict.
● Specific Principles Applicable to Vagueness, Overbreadth, Prior Restraint, Licensing and Compelled
Speech:
○ Aside from the restrictions mentioned above, government can also attempt to regulate expression
indirectly through licensing restrictions, forms of prior restraint that take effect even before the
speaker/writer attempts expression, and through vague or overly broad regulations that have the effect of
chilling otherwise protected forms of expression. Government may also attempt to compel private
persons to speak, which controverts the autonomous policy of the First Amendment.
○ Vagueness:
 ■ To promote fairness and to prevent the unnecessary chilling of otherwise free and protected
expression, the doctrine of fairness renders a law unconstitutional if a reasonable person cannot
understand which expression the law permits and which it forbids. If the government intends to
regulate expression it must do so unequivocally and provide adequate guideline for a reasonable
person to understand and follow. Otherwise, government runs the risk of chilling otherwise
protected expression.
■ For example, in Coates v. City of Cincinnati (1974), the Court invalidated an ordinance that
criminalized the assembly of three or more people on a sidewalk if their conduct annoyed
passersby because the law did not define the concept of annoyance. Similarly, the Court, in
Baggett v. Bullitt (1964), invalidated on vagueness grounds a state loyalty oath that did not define
the term “subversive”.
○ Overbreadth:
■ A complementary doctrine to vagueness is the overbreadth doctrine, pursuant to which the Court
can invalidate a law that regulates substantially more expression than necessary and thus chills
otherwise protected expression. The doctrine requires substantial overbreadth, not minimal
overbreadth. It also permits a person before the Court to assert the unconstitutionality of a law as
applied to third parties not presently before the Court.
■ It is possible for a law to be unconstitutionally overly broad but not vague. In Board of Airport
Commissioners of the City of Los Angeles v. Jews for Jesus, Inc. (1987), the Court held that a
municipal resolution that prohibited all First Amendment activities at LAX Airport was overly
broad because it encompassed the activities of virtually every person who entered the airport. Yet
it was not vague because the average person would understand what a First Amendment activity
was.
○ Prior Restraint:
■ There is a presumption in American constitutional law that the government cannot prohibit or
discourage the expression of most ideas before their expression. While the government may, in
some circumstances, punish the speaker/publisher after expression of the ideas, if for example,
the speaker/publisher defamed another or committed other legally recognizable harms, it may not
preemptively curtail expression because of the likelihood that such expression may cause another
legal harm.
■ However, in an extremely narrow set of circumstances, it may be permissible for the government
to restrict expression prior to publication such as when the expression would pose an imminent
threat to national security.
■ In a constitutional democracy for which freedom of expression is an essential element of political
freedom and the lynchpin of other constitutional rights (e.g. voting and others), prior restraint is
the exception and not the rule, for the threat of prior restraint not only chills otherwise protected
expression, it also imperils the democratic process and runs counter to the nation’s values of
individual freedom and personal autonomy.
● The Clear and Present Danger Test
○ An early test the Court used to assess the constitutionality of governmental restrictions upon expression
analyzed whether the expression in question presented a clear and present danger such that restriction of
its dissemination was necessary to prevent significant harm in the near future. The cases below represent
the Court’s initial attempt to apply the clear and present danger test to expression deemed dangerous by
the government either because of its content and/or its context during a time of war.
○ Note that under the clear present danger test, if the Court upholds the governmental restriction of
expression, it essentially is allowing the government to regulate the content of expression. Consider
whether such regulation should be subject to strict scrutiny, or should it be assessed under the more
 deferential rational basis standard of review, because the government is really trying to regulate the
secondary effects likely to result from the expression, and not necessarily the content of expression.

● Imminent Incitement of Unlawful Action:

○ In 1969, the Court appeared to jettison the clear and present danger test and to replace it with a new test:
Imminent Incitement to Unlawful Action. This test represented evolution in the Court’s 1st Am.
jurisprudence over the previous half century in which it grappled with the inherent flaws of the clear and
present danger standard.
○ Pursuant to this test the government must demonstrate that the expression and/or assembly it seeks to
prohibit amounts to an imminent incitement of unlawful action. The test requires the government to
prove that the defendant had:
a. the specific intent to incite imminent unlawful action; and
b. that it was likely that imminent unlawful action would ensue from the defendant’s
expressive/assembly activities.
○ As with the old clear and present danger test, which this one has, in effect, supplanted, the rationale for
permitting governmental suppression of this kind of expression emanates from the notion that the
government can restrict the secondary effects of expression (violence) in ways that it cannot restrict the
primary effects (emotional response from or towards expression). Though technically governmental
prohibition of expression based on its imminent incitement of unlawful action is a content-based
restriction, because of the secondary-effects rationale, the appropriate standard of review for this
extremely limited category of expression is the rational basis test.

● FIGHTING WORDS: (RATIONAL BASIS)

● Definition: Fighting words are those words that when directed to a reasonable person of ordinary sensibilities are
likely to provoke an imminent violent response by the person to whom those words are addressed.
○ This doctrine applies to both words and to symbolic expression (conduct intended to convey a particular
message understood as such by those who witness the symbolic expression).
● Fighting words do not involve any message relevant to the promotion of democratic values, the search for truth or
political speech, and they are proscribed/prohibited wholly because their substantive content is such that it is
likely to cause a violent reaction.
● Whereas normally the government cannot prohibit expression of unpopular ideas or those that offend people or
upset them because the 1st Am. protects these kinds of primary effects of expression, the government can prohibit
or prescribe fighting words because they involve the secondary effects of expression such as violence that are
within the purview of governmental prohibition.
○ In this regard, fighting words are like defamatory expression or true threats, both of which the
government can prohibit because of the significant emotional/dignitary and/or physical harmful secondary
effects these kinds of expression generate.
● Why Are Fighting Words Under the Rational Basis Test:
○ Fighting words statutes regulate the content of expression, in theory they really proscribe/prohibit the
secondary effects of the expression, i.e., the violence or severe emotional/dignitary harm likely to ensue
from their utterance, and these significant harms involve conduct, the regulation of which warrants the
rational basis standard of review.
● HATE SPEECH AND SYMBOLIC EXPRESSION
○ Symbolic Expression
○ Often free expression issues arise in the context of expression mixed with conduct. Known as
symbolic expression, this type of expression receives the same kind of constitutional protection as
speech alone or the press by itself.
 ○ There is a two-part test for symbolic expression:
a. Did the person engaging in symbolic expression have the specific intent to convey a
message; and
b. Was the message so understood by the reasonable observer?
○ Analytical Framework if there is symbolic expression
■ If there is symbolic expression, determine if the government regulation is on its face (i.e. per the
language of the statute) vague or overly broad.
● If there is no problem with the governmental regulation being either vague or overly
broad, then proceed to the next stage of the analysis.
■ Determine whether the regulation restricts a category of expression that warrants constitutional
protection.
● If the expression in question involves imminent incitement of unlawful action, fighting
words, true threats, it is permissible for the government to regulate the content of
expression so long as it does so in a neutral manner; the standard of review for
regulation of content entirely proscribed because of the secondary effects (violence,
severe emotional or dignity harm) is the rational basis test.
■ If, on the other hand, the symbolic expression in issue does not involve imminent incitement of
unlawful action, fighting words, true threats, or other similar unprotected categories of
expression, it is necessary to determine what kind of regulation is in issue.
● Determine whether the regulation is content based (including subject matter restrictions)
or a content neutral time place or manner restriction
■ If the regulation is content based, then apply strict scrutiny to determine whether it is viewpoint
discriminatory
○ If the regulation is content-neutral, then apply a special form of intermediate scrutiny:
1. government must regulate conduct unrelated to the content of expression;
2. government must have a substantial interest;
3. the restriction must be sufficiently narrowly tailored such that it imposes only an incidental effect
upon expression; and
4. the restriction must leave open/available ample alternative modes of communication
○ Apply the relevant free expression policies to the analysis
○ Apply the relevant core values of federalism to the analysis
○ Hierarchy of speech in a constitutional democracy
■ At the apex of protected expression is political speech. This includes expression that may anger
or offend others, because one of the primary effects of protected expression is the emotion it
elicits in others.
■ Other forms of expression that do not involve imminent incitement of unlawful action, fighting
words, true threats, obscenity, or defamation receive considerable protection from governmental
regulation as well subject to the rules set forth above and below.

QUESTION #4
● FREE RELIGION: (RATIONAL BASIS AND STRICT SCRUTINY)
● The free exercise of religion is a core individual liberty protected by the 1 st Am. against the tyranny of democratic
majorities and the illegitimate exercise of governmental authority, which derives its importance from the
historical immigration of people to this country in pursuit of religious freedom and away from countries where
they confronted persecution because of their religious beliefs.
● To prevail in a free exercise case, a person must first allege that the government has somehow interfered with
their sincerely held religious belief.
 ○ While the Court will not generally question the sincerity of a religious belief, it does recognize the
analytical distinction between a religious belief/creed and conduct motivated by a religious belief/creed
● In the context of the Free Exercise Clause of the 1 st Am., if the governmental action imposes either a direct,
significant burden on a person’s free exercise of religion, or, alternatively, if the governmental action imposes an
indirect, yet significant burden on the religious claimant’s free exercise rights, the standard of review is strict
scrutiny.
● Conversely, if the governmental action imposes an incidental burden on the free exercise of religion, then the
standard of review is the rational basis test.
○ How one characterizes the burden imposed on the religious claimant is therefore essential, for it
determines the appropriate standard of review in free exercise of religion cases.

● Key Policies (some of which also apply to Free Exercise analysis):

○ Within the 1st Am. there is an inherent tension between the Free Exercise Clause and the Establishment
Clause. While the Free Exercise Clause protects the individual liberty of people to have their own
personal beliefs about religion, including the liberty not to hold religious beliefs, the Establishment
Clause prevents the government from taking actions that constitute an impermissible establishment of
religion. In other words, the government can neither endorse nor condemn religion in ways that infringe
upon person’s free exercise of religion rights and liberties.
○ Often a potential conflict between the religion clause of the 1st Am. arises in the context of religious-
based challenges to seemingly neutral laws of general and equal application that may impose burdens
upon the free exercise of religion by some members of the community. In this regard, religious-based
claims for exemption from these laws may create significant constitutional issues about whether the
government can grant immunity from a law’s restrictions in ways that do not violate the Establishment
Clause and its proscription of public endorsement of religious practices.
■ 1. Autonomy
● The Free Exercise Clause of the 1st Am. exists, in large part, to protect the autonomy of
people to follow the dictates of their individual conscience. Accordingly, the government
cannot compel one to believe in religion or not, nor to believe in a particular religion, nor
penalize someone on the basis their personal religious creed. Just as the Free Speech and
Free Press Clauses of the 1st Am. protect persons from government-compelled thought or
punishment for expression of their ideas so long as they do not fall within a very narrow
category of proscribable expression, the Free Exercise Clause protects the freedom of
people to believe or not believe in religion, and permits individuals to carry within the
sanctuary of their minds their own religious/non-religious values and ideals.
■ 2. Neutrality:
● The government must remain neutral in matters of religion and neither burden or benefit
people on the basis of their religious beliefs and creeds. In this regard, within the religion
clauses of the 1st Am. is an implicit anti-discrimination principle that restricts the
government from differentiating between persons on the basis of their religious beliefs,
including whether or not they hold sincerely held religious beliefs.
■ 3. Hostility vs. Acknowledgement of Religion
● The government can be neither hostile towards religion nor can it accommodate it in
ways that appear to endorse it. However, the interplay of the religion clauses of the 1 st
Am. permit the government to not only be neutral towards religion, but also allow it to
acknowledge its existence. In part, this rationale derives from the notion that ours is a
religiously pluralistic society and to ignore religion is impractical and also may be hostile
 to its existence and thus run afoul of the neutrality principle that undergirds the
relationship between the Free Exercise and Establishment Clauses of the 1 st Am.
● Standards of Review: (STRICT SCRUTINY VS RATIONAL BASIS)
● If the government imposes a significant burden upon the free exercise of religion, a burden that could be either
direct or indirect, it must justify its restriction under strict scrutiny.
○ Therefore, it needs to prove that it had a compelling interest in restricting the free exercise of religion, and
that it did so through the least restrictive means available.
● Conversely, if the governmental action only imposes an incidental burden on the free exercise of religion, then
the standard of review is the much more deferential rational basis test, pursuant to which the religious
claimant has the burden of proving that the governmental restriction lacks a rational or legitimate basis, and that
the connection between governmental means and ends is so tenuous that it is unreasonable.
○ This is often where the distinction between religious beliefs and conduct is critical, for the government
has much more latitude to regulate conduct, even if it is religiously motivated, than it does with respect to
religious beliefs (or other beliefs tantamount to a religious creed).
● The Importance of a Sincerely Held Religious Belief (or an equivalent creed)
○ The first step in the analysis of a Free Exercise claim is for the Court to determine whether the claimant
has a sincerely held religious belief, for if there is no such belief in issue, then the Free Exercise
Clause is inapplicable.
■ The Court will not question the sincerity of one’s personal beliefs about a deity, or doubts
thereof, so long as the belief system roughly approximates a religious belief or creed and is not
merely a philosophical perspective on life.
■ Given the inherent difficulty of distinguishing, at times, between religious and philosophical
beliefs, the Court tends to err on the side of accepting at face value the claim that a person has a
sincerely held religious belief even of the belief does not readily appear to be one grounded in
traditional religious principles and values.
● The Metaphorical Separation of Church and State: What Kind of Wall is There?
○ Those Supreme Court justices wary of the relationship between church and state (a term often used to
encompass any governmental action) seem to envision the wall between as a rather firm barrier erected to
prevent government from interfering with religious beliefs and practices.
○ These justices often prefer to use the most rigid of the three Establishment Clause Tests: the Lemon Test
(see below), for it is the most rigid and stringent of the tests and reflects a rather strict separation between
church and state.
○ Finally, a few Supreme Court justices, and probably more in the near future, with the growing influence
of the three newest Supreme Court justices, have largely abandoned the Lemon and endorsement tests
and, instead asked whether the governmental action amounted to coercion. If the government either
directly or indirectly coerced a person or group to act or refrain from doing something because of their
religion, then the governmental action would be considered coercive and unconstitutional.
● Autonomy and the Relationship between the Free Exercise and Establishment Clauses:
○ The Free Exercise Clause of the 1st Am. exists, in large part, to protect the autonomy of people to follow
the dictates of their individual conscience.
○ Accordingly, the government cannot compel one to believe in religion or not, nor to believe In a
particular religion, nor penalize someone on the basis their personal religious creed.
○ The Free Exercise Clause protects the freedom of people to believe or not believe in religion, and permits
individuals to carry within the sanctuary of their minds their own religious/non-religious values and
ideals.
○ The Establishment Clause exists, in part, to preserve religious autonomy protected by the Free Exercise
Clause and to minimize governmental interference with matters of religious belief and to promote the
 personal freedom to follow the dictates of one’s individual conscience. Government practices that
compel one to abandon or compromise one’s religious beliefs therefore infringe upon both the Free
Exercise and Establishment Clauses.
● Neutrality and the Relationship between the Free Exercise and the Establishment Clauses:
○ The government must remain neutral in matters of religion and neither burden or benefit people on the
basis of their religious beliefs and creeds. In this regard, within the religion clauses of the 1 st Am. is an
implicit anti-discrimination principle that restricts the government from differentiating between persons
on the basis of their religious beliefs, including whether or not they hold sincerely held religious beliefs.
○ Governmental action that appears to benefit some religions and burden others, or to favor religion in
general, violates the Establishment Clause which incorporate the anti-discrimination principle that
underlies the entire First Amendment.
● Hostility vs. Acknowledgement of Religion and the Relationship between the Free Exercise and the
Establishment Clauses:
○ The government can be neither hostile towards religion nor can it accommodate it in ways that appear to
endorse it. However, the interplay of the religion clauses of the 1 st Am. permit the government to not
only be neutral towards religion, but also allow it to acknowledge its existence. In part, this rationale
derives from the notion that ours is a religiously pluralistic society and to ignore religion is impractical
and also may be hostile to its existence and thus run afoul of the neutrality principle that undergirds the
relationship between the Free Exercise and Establishment Clauses of the 1 st Am.
○ In some instance it is permissible for the government to accommodate religion so long as it does so in
neutral ways and does not appear to be endorsing religion over no religion, or one religious sect over
another. The Establishment Clause exists, in large part, to restrict the government from acting in ways
that are hostile to religion, yet it also prevents governmental actions that amount to a form of viewpoint
discrimination either in terms of hostility or favoritism. It is one thing for the government to
acknowledge the existence of religious beliefs and/or practices; it is quite another, however, for the
government to participate in religious indoctrination, education or to foster the perception that it is
endorses religious practices. There is often a fine line between hostility towards religion and
accommodation, but it is one the government must straddle delicately to avoid a violation of either the
Free Exercise or Establishment Clauses.
● Avoid the Trivialization of Religion:
○ One problem with governmental entanglement with religion is that it may lead to the trivialization of
religion. Therefore, to avoid this problem, the Court will invoke the Establishment Clause as a means of
separating the affairs of government from those of religion and thus seek to preserve the autonomy and
sanctity of religion and religious beliefs from governmental interference and intrusion.
● APPLICABLE TESTS:
○ The Lemon Test
1. The primary (predominant) purpose of the governmental action (by statute or other ways) must be
secular, not sectarian; and
● The purpose prong: the government has the burden of proving that its primary purpose
was secular rather than sectarian (religious); even if there were multiple purposes, so
long as the primary one was secular, this would suffice. However, determining the
existence of a primary purpose, in practice, can be quite difficult.
2. The principal or primary effect of the governmental action (by statute or other ways) must neither
inhibit nor advance religion; and
● The effect prong: the government has the burden of proving that the principal or
primary effect of its action (by statute or other ways) was neither to advance or inhibit
religion. Often, the Court will analyze this element from the perspective of whether the
 governmental action either directly or indirectly aided religion. If the government
directly aided religion (for example, through funding), the Court is more likely to find
that the principal effect of the governmental action was to advance religion. If, on the
other hand, the government indirectly aided religion (for example, through a neutral
program in which both religious and non-religious entities benefited), then the Court is
more likely to not find that the governmental practice was one that advanced religion.
3. The governmental action (by statute or other ways) must not foster an excessive entanglement
between government and religion
● This last prong really has two sub-elements:
○ a) whether the governmental action, in effect, requires the government to monitor
a religious practice such as the content of religious curriculum or a prayer; or
○ b) creates political or social divisiveness within the community (either a or b will
suffice to demonstrate the existence of excessive entanglement)
■ This is the most rigid and stringent of the three Establishment Clause tests and presupposes a
very form wall of separation between church and state. Note that the government must prove all
three elements to prevail under this test.
○ The Endorsement Test
1. Whether, from the perspective of a reasonable observer who is an adherent of the religion, the
governmental action appears to endorse that religion; and
2. Whether, from the perspective of a reasonable observer who is not an adherent of the religion, or
of any religion, the governmental action appears to endorse other religions or religion in general
○ If, both elements occur, then the governmental practice violates the Establishment Clause. What is less
clear, however, is what happens if the reasonable observer who is an adherent of the religion in question
does not perceive governmental endorsement of that religion, or of religion in general, but the
reasonable observer who is not an adherent to the religion in question or to religion in general does
perceive governmental endorsement. Presumably, there should still be an Establishment Clause violation
so long as the observer is reasonable.
■ Justice O’Connor, who formulated this test in Lynch v. Donnelly (1984) never really clarified this
aspect of the Endorsement test, though she did in subsequent cases explain that the reasonable
observer is also one reasonably familiar with local traditions, historical practices, and community
understandings pertaining to displays of religious images or the use of religious symbols,
language, and other things for public events.
○ On an exam, probably the most prudent thing to do is to treat the Endorsement test as a two- part
test as outlined above.
○ The Coercion Test
■ There are two different kinds of coercion: direct coercion and indirect coercion
■ Direct Coercion
● Direct coercion occurs where the government by force, threat or other means of
compulsion or penalty essentially requires someone to act, or not act, because of the
relationship between religion and governmental policies and/or actions
■ Indirect Coercion
● This is more subtle than direct coercion and arises where the government, in effect,
creates a coercive atmosphere through indirect and subtle means to the extent that one
feels as if they have no meaningful choice but to comply with religious practices
intertwined with governmental policies and/or practices
 ○ While the existence of either direct coercion or indirect coercion by the government violates the
Establishment Clause, for exam purposes, it is advisable to analyze both types of coercion if a fact
pattern suggests possible coercion.
● Religious Group Access to Schools: General Principles:
○ a) The Meaning of Excessive Entanglement
■ Excessive entanglement occurs in either of two contexts:
● 1) the government monitors the content of religion, or religious practices; or
● 2) governmental action with respect to religion fosters political divisiveness
○ If either of the foregoing occurs, then the governmental action involves excessive entanglement in
violation of the Establishment Clause (and in violation of the third element or prong of the Lemon test.)
○ b) Religious Group Access to School Facilities:
■ If the government discriminates against religious groups based on their viewpoints, then the
concept of religious speech is implicated and the Court will use strict scrutiny to assess whether
the regulation is an impermissible content-based, viewpoint discriminatory one. There may also
be a Free Exercise issue, and if the government regulation imposes a significant burden on the
free exercise of religion, strict scrutiny is again the appropriate standard of review.
■ The government will, in part, attempt to invoke the Establishment Clause as its rationale for
restricting access to schools to some religious groups to avoid the perception that it is endorsing
religion or to avoid excessively entangling itself with religion or religious activities. As a general
rule, the government will not violate the Establishment Clause if it provides equal access to
religious groups and non-religious groups to facilities such as schools. Moreover, the modern
cases no longer recognize the avoidance of a potential Establishment Clause violation as a
compelling governmental interest in cases that warrant strict scrutiny under either the Free
Exercise or Free Expression Clauses where the government restriction on religious speech
constitutes content-based, viewpoint discrimination.
■ Religious groups will argue that it is permissible for the government to acknowledge religion, and
to even accommodate it along neutral lines, and that governmental restrictions that impede the
access of religious groups to schools is not only hostile to religion but also may be viewpoint
discriminatory in violation of the Free Expression Clauses of the First Amendment.
■ Conversely, the government will content that restrictions that limit the access of religious groups
to school facilities may either arise from limited space and other neutral factors, or that the
restricted access reflects government’s concerns about avoiding excessive entanglement with
religion and endorsing religion.